Photon License Terms

License Agreement for Exit Games Photon

THIS LICENSE AGREEMENT FOR EXIT GAMES PHOTON (THE "AGREEMENT") APPLIES TO EXIT GAMES INC.'S ("EXIT GAMES") PHOTON SERVICES. ANYONE LICENSING, ACCESSING OR USING A PHOTON SERVICE IS SUBJECT TO THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE LICENSING, ACCESSING OR USING THE PHOTON OFFERINGS. BY COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE AFFIRMATION BOX, ACCESSING OR USING A PHOTON SERVICE, OR OTHERWISE AGREEING IN WRITING TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND YOUR COMPANY AND/OR OTHER ENTITY(IES) (COLLECTIVELY, THE "CUSTOMER" OR "YOU") TO THIS AGREEMENT. 
EXIT GAMES MAY REVISE AND UPDATE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY POSTING THE AMENDED TERMS TO WWW.PHOTONENGINE.COM. YOUR CONTINUED USE OF A PHOTON SERVICE MEANS THAT YOU ACCEPT AND AGREE TO THE REVISED AGREEMENT.
IN ADDITION TO THIS AGREEMENT, THIRD PARTY PRODUCTS OR SERVICES MADE AVAILABLE BY EXIT GAMES AND BOUGHT BY A CUSTOMER ARE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS WITH RESPEC TO THE ACCESS AND USE OF SUCH THIRD PARTY PRODUCT OR SERVICE.


1.0 Definitions  
 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
 "Application" means a software application of Customer that allows access or use by multiple CCUs and where one single SDK is use or implemented. 
 "Application End Users" means Customer’s human or machine users of an Application regardless if inside or outside Customer’s organization or entity.
 "Asset" means sounds, animations, graphics, textures, 3d models, fonts or other assets that are part of a Sample but not included in the source code of that Sample.
 "Authorized User" means (i) if Customer is an individual: solely Customer and other temporary workers authorized by Customer to use the Photon Services while performing duties within the scope of their employment or assignment, or (ii) if Customer is a legal entity: any employee, independent contractor and other temporary worker authorized by Customer to use the Photon Services or parts thereof while performing duties within the scope of their employment or assignment.
 "CCU" means the sum of Application End Users of a specific Application that may simultaneously use or otherwise access Software via this Application. 
 "Photon Cloud" means a Software that is made available to Customer on a hosted, software-as-a-service (SaaS) basis for Customer’s use with an Application.
 "Customer Library Source Code" means a customer library of the SDK in source code.  
 "Customer Data" means any data, information, images, text, media, and content that is provided to Exit Games by, or on behalf of, Customer, its Affiliates, Authorized Users, or Application End Users through use of a Photon Service or the Dashboard.
"Customer Systems" means Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer, a Customer Affiliate or a third-party service provider. 
 "Dashboard" means Customer’s online-account based administration console with Exit Games.
 "Documentation" means any descriptions, instructions, or other documentation made available by Exit Games in connection with a Software.
 "Exit Games Marks" means any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation of Exit Games displayed on any display screen within a Photon Service.
 "Fees" means the Software license fees to be paid by Customer to Exit Games. 
"Force Majeure Event" means any occurrence or contingency beyond a party’s reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots or wars.  
 "Mod" means a variant, modification, alliteration or change of a software application that changes one or more aspects of this software application.
 "Peak CCU" means the sum of the highest number of CCU in each geographic region where Exit Games has made available CCU to Customer in that particular calendar month (for example, and for purposes of clarity only: if Customer has CCU in 3 geographic regions and in Month 1, the highest number of CCU in Region A is 3,000, the highest number of CCU in Region B is 5,000, the highest number of CCU in Region C is 2,000, the Peak CCU in Month 1 would be 10,000 CCU).
 "Photon Service" means any Software, any SDK, any Sample and/or any Documentation made available by Exit Games to Customer. 
 "Photon Server" means a version of the Software that is made available for use on a Server.
"Photon Server Unmonitored" means Photon Server without any Internet connection that Customer has download and install on a dedicated Server. 
 "Premium Cloud" means a Photon Cloud with less CCU limitations and more features than a regular Photon Cloud. 
 "Sample" means a small software, software development kit or template in object or source code made available by Exit Games to support, demonstrate and illustrate the use of the Software with the Application. Samples also include  "AddOns".
"SDK" means a software developer kit in object code made available by Exit Games for download and to be used solely by Customer for purposes of modifying and using the Application with the Software. 
"Server" means one server with no more than one (1) processor and no more than eight (8) kernels that is either bare metal hardware or a virtual machine (VM) and that is operated by or on behalf of Customer.
 "Software" means software licensed on a non-perpetual basis by Exit Games to Customer hereunder, under an order form, via the Dashboard or any other agreement (as applicable).
 "Term" means the term of a Software license. 
 "Trial Software" means a certain free-of charge but restricted Software version that Exit Games makes available from time to time in its sole discretion for Customer’s general evaluation of the Software.
"Update" means a patch, including patch releases, issued by Exit Games to correct Software defects or deficiencies or to provide minor Software modifications that do not substantially change the basic character or structure of the Software.
 "Upgrade" means an incremental release of a Software, including significant improvements (not merely corrections for Software defects and deficiencies) and changes to the basic character or structure of the Software, including, by way of example only, the inclusion of additional features and/or functionality.


2.0 General

2.1 Number of CCU 
The number of CCU that may be licensed for a Software depend on the Software and the available Software license plan.

2.2 
No License Obligation. Exit Games is under no obligation to license any Software or a particular Software to Customer.  


3.0 Photon Cloud

3.1 Photon Cloud 
Under a Photon Cloud license, Customer may use the Photon Cloud for the agreed number of dedicated Applications and the agreed number CCU per one Application. A Photon Cloud might be subject to limitations, such as the maximum number of CCU per one Application that Customer may license. 

3.2 Increase of CCU 
Subject to payment of additional Fees, Customer may at any time increase the number of CCU of a licensed Photon Cloud (each, an "Additional CCU"). The term pertaining to the Additional CCU shall equal the period of time remaining for the then-current Term pertaining to the applicable Photon Cloud license that is in effect when ordering Additional CCU. 

3.3 Decrease of CCU 
Customer may at any time decrease the number of the CCU licensed by Customer for Photon Cloud. Such decrease of CCU shall take immediate effect. The term pertaining to the then remaining CCU shall equal the Term pertaining to the relevant Photon Cloud license. Upon decreasing the number of CCU, Exit Games will not refund to Customer any Fees that Customer has paid for any CCU, but shall issue a credit equal to the amount of Fees that Customer has paid in advance for the decreased number of CCU for the benefit of Customer (the "CCU-Credit"). The CCU-Credit shall be deducted from any Fees or additional Fees Customer may pay for any future Software license under this Agreement, provided, however, that the CCU-Credit shall only be valid for three (3) years, commencing on the day Customer elects to decrease the number of CCU. Notwithstanding the foregoing, Exit Games will not issue a CCU-Credit if Customer has paid Fees for Photon Cloud in advance and ordered Photon Cloud via a purchase order or similar order document.  


4.0 Premium Cloud 
Under a Premium Cloud license, Exit Games will use reasonable efforts to automatically provide to Customer additional CCU ( "Additional CCU") in each relevant and available geographic region as necessary for Customer to serve all Application End Users’ requests to access or use the Premium Cloud via the relevant Application (the  "Auto-Scaling"). 


5.0 Photon Server

5.1 Photon Server
Exit Games provides Photon Server for its download and installation by Customer. Customer shall not use Photon Server for more Servers or more CCU per one single Server than explicitly agreed with Exit Games. Photon Server is restricted to one single Application per one Server license. 

5.2 Verification 
Customer acknowledges and agrees that 
(a) the use of Photon Server (except for Photon Server Unmonitored) requires activation by the server systems of Exit Games prior to the initial designated use of the Software; 
(b) upon Customer’s first initialization of Photon Server and every 60 minutes thereafter, Photon Server automatically connects to Exit Games’ license servers via HTTPS protocol (port 443) to verify that Customer does not use more than the agreed number of CCUs or Servers; 
(c) Photon Server contains technology to prevent access to and use of Photon Server in the event that Customer failed to pay the applicable Fees when due; and 
(d) Customer will not be able to use Photon Server at all if the activation of Photon Server fails or 24 hours after a subsequent verification test of Photon Server has failed due to circumstances under Customer’s control.

5.3 Photon Server Unmonitored 
Customer’s use of Photon Server Unmonitored requires that Exit Games creates and assigns an unique hardware id to each Server that Customer will use with Photon Server Unmonitored ( "Hardware Id"). Each change or replacement of such dedicated Server is subject to additional Fees and requires a new Hardware Id for the new or changed Server. Customer acknowledges and agrees that Photon Server Unmonitored contains a functionality that Customer will not be able to access and use Photon Server Unmonitored after expiration of the relevant Term.  

5.4 Increase of Servers 
Subject to payment of additional Fees and if agreed between Customer and Exit Games, Customer may at any time during the Term increase the number of Servers for Customer's use with a licensed Photon Server (each, an "Additional Server License"). The term pertaining to the Additional Server License shall equal the period of time remaining for the then-current Term pertaining to the applicable Photon Server license that is in effect when ordering Additional Server. Exit Games shall charge additional Fees for Additional Server Licenses on a pro-rata basis for the rest of the relevant Term.

5.5 Decrease of Servers 
Except for Photon Server Unmonitored, Customer may at any time also decrease the number of Servers under a Photon Server license. Such decrease shall take immediate effect. Upon decreasing the number of Servers, Exit Games will not refund to Customer any Fees that Customer has paid for any Additional Server Licenses or Photon Server, but shall issue a credit equal to the amount of Fees that Customer has paid in advance for the decreased number of licensed Servers for the benefit of the Customer (the "Server-Credit"). The Server-Credit shall be deducted from any Fees or additional Fees Customer may pay for any future license of a Software under this Agreement, provided, however, that the Server-Credit shall only be valid for three (3) years, commencing on the day Customer elects to decrease the number of Servers. 


6.0 Trial Software
Notwithstanding anything contrary in this Agreement, Customer shall use Trial Software only for internal and non-commercial Application development purposes. Customer shall not implement or otherwise use Trial Software with an Application that is made available to Application End Users or other third parties. Customer’s use of Trial Software might be subject to additional restrictions or limitations that Exit Games will make available such restrictions in the download section of the respective Trial Software. Exit Games reserves the right to discontinue making available a Trial Software at any time and for any reason.


7.0 SDK and Samples

7.1 SDK
Exit Games will provide Customer with a SDK and a Customer Library Source Code. Exit Games hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license to install and use the SDK and the Customer Library Source Code together with the Client SDK for use with the Software. Customer shall use not use the SDK or the Customer Library Source Code for anything else than for use of a Software with an Application.

7.2 App ID
Exit Games will assign an individual identification number to every Application that runs on or with Photon Cloud. Each implementation or use of one an additional SDK with such Application is deemed using the relevant licensed Software for an additional Application and will be subject to additional Fees. By way of example: If Customer uses or implements three SDKs in a software application, Customer uses Photon Cloud for three Applications. 

7.3 Samples
Subject to the terms of this Agreement, Exit Games will, from time to time and in its sole discretion, provide Customer with one or more Samples. Exit Games hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license to install, modify, use the Samples to design, develop, and test the Application and to use and implement modified or unmodified Samples in the Application but in any case always without any Assets. Customer acknowledges and agrees that Customer's use or modification of a Sample might be subject to additional restrictions or limitations. Exit Games will make available such restrictions in the download section of the respective Sample, for example by providing a .txt file that sets out the applicable restrictions.


8.0 Upgrades and Updates
Exit Games may, in its sole discretion, either for free or at an additional charge, provide to Customer Upgrades or Updates. Upon installation of an Upgrade or Update, Customer shall immediately cease using the prior version of the Software and shall also ensure not to allow anybody else to use prior versions of the Software. 


9.0 Dashboard and Authorized Users

9.1 Dashboard
Customer will have access to the Dashboard when Customer completes Exit Games’ registration process and creates an Exit Games account. Customer warrants that (i) any information that Customer provides for the creation of an Exit Games account will be true, accurate and complete, and (ii) that Customer will update this information promptly when it changes. When logged into the Dashboard, Customer may (i) download certain Software, Updates, Upgrade, the SDK, Customer Library Source Code and Samples, (ii) configure, manage and monitor its licensed Software and order new Software licenses, (iii) pay certain Software licenses, and (iv) allow Authorized Users to perform (iii) on behalf and on the account of Customer. Customer shall keep Customer’s login email address and password for the Dashboard access strictly confidential. Customer shall inform Exit Games immediately if Customer believes that the confidentiality of Customer’s login email address and/or password may have been compromised.

9.2 Dashboard Restrictions
Neither Customer’s account with Exit Games nor Customer’s right to access the Dashboard are transferable. Customer shall not (i) reveal, share or otherwise allow others to use Customer’s login email address and/or password for the Dashboard access, or (ii) allow others to access Customer’s Dashboard. Exit Games is not responsible for the use of Customer’s Dashboard password and account or for any activity that results from use of Customer’s login email address and/or password by Customer, or by any person (i) to whom Customer may have intentionally or by negligence disclosed such login and/or password, or (ii) who fraudulently used Customer’s login email address and/or password without Customer’s permission.

9.3 Authorized Users
Customer is solely responsible for all actions taken by its Authorized Users, including, without limitation, for any actions by its Authorized users according to Section 9.1 (iv) .


10.0 License Grants and Restrictions

10.1 License Grants
Subject to and conditioned on Customer's and its Authorized Users’ compliance with this Agreement, Exit Games grants to Customer during the applicable Term a limited, non-exclusive, non-transferable license, without sublicense rights, to: (i) use and permit Customer, its Authorized Users and Application End Users to access and use the licensed Software with the Application in accordance with the applicable license agreed between Exit Games and Customer, (ii) download and install, each as licensed from Exit Games to Customer, Photon Server, and (iii) use and make a reasonable number of copies of the Documentation. Photon Server is deemed accepted upon Customer's first download of Photon Server. A Photon Cloud is deemed accepted upon Customer's first use of the Photon Cloud. 

10.2 License Restrictions
Customer shall not, and shall not permit any other person (including Authorized Users) to, access or use the Photon Services and/or other materials provided by Exit Games under this Agreement, except as expressly permitted by Exit Games. For purposes of clarity and without limiting the generality of the foregoing, except as this Agreement expressly permits, Customer shall not, and shall not permit any other person (including Authorized Users) to: (i) reverse engineer, decompile or otherwise attempt to discover the source code of or trade secrets embodied in a Software, or any portion thereof, (ii) distribute, transfer or grant sublicenses to a Software or the Documentation, including, but not limited to, making a Software available (x) through resellers or other distributors, or (y) as an application service provider, service bureau or rental source, (iii) embed, implement or otherwise use a Photon Service (or any element thereof) into or with a third-party software or a Customer software other than an Application, including, for avoidance of doubt, a software that does not allow a use or access by multiple CCU, (iv) create modifications to or derivative works of a Photon Service, (v) reproduce a Photon Service, except that Customer may make a limited number of copies of SDKs as necessary for the use of the relevant Photon Service with an Application, (vi) attempt to modify, alter or circumvent the license control and protection mechanisms of a Software, (vii) use or modify a SDK to create, design or develop anything other than an Application, (viii) use a SDK to create or attempt to create a product that will understand and interpret the communications and commands between a Software and the Application or any other software, (ix) circumvent any technical or licensing restrictions of a Photon Service, or upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware or to permit unauthorized access to or use of any software or hardware (each a  "Virus"), (x) implement a Sample in anything else than an Application or implement an Asset in an Application, (xi) directly or indirectly use a Trial Software with or for a Mod, (xii) license a Software for or use a Software with an Application if Customer has already a Software license for the same Application, (xiii) license a Software for or use a Software with an Application if an Affiliate already has licensed a Software for the same application, (xiv) use a Software for commercial purposes if that Software is licensed to Customer under a Trial Software license, (xv) ask or otherwise encourage Application End Users or any other third party to license a Software in order to play or otherwise use this Application or any Mod, (xvi) access or use any Photon Service in violation of any applicable law, rule, or regulation, including, without limitation, any data privacy or protection laws, (xvii) access or use any Photon Service in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, (xviii) access, use or copy any portion of a Photon Service (including the logic and/or architecture thereof and any trade secrets included therein) for purposes of competitive analysis of the Photon Service or to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with a Photon Service, (xix) commercially exploit a Photon Service in a way that competes with Exit Games business (e.g., offering Software as part of a commercial gaming service), (xx) remove, obscure or alter any Exit Games Marks, (xxi) exploit, install, run or otherwise use a Photon Service with or for more CCUs or Servers than licensed, or (xxii) use a Software for voice or video streaming provided by Customer or a third party without Exit Games’ prior written approval (approval via email is deemed sufficient for this purpose). Customer shall not permit any third party, including, for avoidance of doubt, its Application End Users, to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions. 

10.3 Proprietary Rights
As between the parties, Exit Games will retain all ownership rights in and to the Exit Games Marks, the Photon Services and other derivative works thereof, and all intellectual property rights incorporated into or related to the foregoing. Customer acknowledges that the goodwill associated with the Exit Games Marks belongs exclusively to Exit Games and, upon request, Customer will modify or cease its use of any Exit Games Marks. All rights not expressly licensed by Exit Games are reserved.   

10.4 Feedback
Customer grants to Exit Games and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to a Photon Service or the Dashboard.

10.5 Commercial Item
The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), Software is provided to U.S. Government end users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

10.6 Bankruptcy
All licenses granted pursuant to this Agreement are, for purposes of Section 365(n) of the U.S. Bankruptcy Code, deemed to be licenses of rights to "intellectual property" as defined under Section 101 of the U.S. Bankruptcy Code. In any bankruptcy or insolvency proceeding involving Exit Games, Customer, as licensee of such rights, will retain and fully exercise all of its rights and elections under the U.S. Bankruptcy Code, which will apply notwithstanding conflict of law principles.


11.0 Subcontractors
Exit Games may from time to time in its discretion engage third parties to provide a portion or all of the Photon Services (each, a "Subcontractor"). Exit Games shall not be liable for the acts and omissions of its Subcontractors to the extent any such acts or omissions are outside of Exit Games' direct control (including, but not limited to, any unavailability of Photon Cloud or failure of Photon Cloud to be fully operational as a result of the acts or omissions of a Subcontractor).


12.0 Warranties and Disclaimer

12.1 Exit Games Warranties
Exit Games represents and warrants that the Software (except for Trial Software), as provided and when used in accordance with the Documentation and this Agreement, (i) will perform in all material respects as specified in such Documentation for a period of thirty (30) calendar days of the Initial Term as defined below), and (ii) will not, upon delivery, contain, any Virus; provided that Software may include functionality that verifies that Customer does not exceed the agreed number of Servers and/or CCU, and prevents access to and use of the Software in the event that Customer fails to pay the applicable Fees when due.  In the event of any breach of the warranty in subsection (i) above, Exit Games shall, as its sole liability and Customer's sole remedy, use reasonable efforts to remedy any deficiencies that cause the Software to not conform to the foregoing warranty promptly after its receipt of written notice from Customer.  Exit Games will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Software) not provided by Exit Games or any open source components or freeware included within the Software, (ii) unauthorized modifications to the Software, (iii) unauthorized use or use of the Software other than in accordance with the Documentation, or (iv) Viruses introduced by Customer, its Authorized Users or Application End Users ((i) to (iv) each an "Exclusion"). 

12.2 Warranty Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1 ABOVE, ALL PHOTON SERVICES AND THE DASHBOARD ARE PROVIDED "AS IS" AND EXIT GAMES HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND EXIT GAMES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EXIT GAMES MAKES NO WARRANTY OF ANY KIND THAT THE PHOTON SERVICES, THE DASHBOARD, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION), OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES, OR ERROR FREE. ALL THIRD-PARTY MATERIALS (IF ANY) ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.


13.0 Indemnification

13.1 Exit Games Indemnification 
Exit Games will indemnify, hold harmless and defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that a  Software (or any component thereof owned by Exit Games), except Trial Software, when used as authorized under this Agreement and in accordance with the Documentation, infringes or misappropriates any United States, European Union or Japan copyrights or misappropriates any trade secret rights, and Exit Games will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. NOTWITHSTANDING THE FOREGOING, EXIT GAMES' INDEMNIFICATION OBLIGATIONS ARE (A) SUBJECT TO THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 14.0 BELOW, AND IN NO EVENT SHALL EXIT GAMES' COLLECTIVE AGGREGATE LIABILITY EXCEED A TOTAL AMOUNT OF TEN THOUSAND (10,000) US DOLLARS; AND (B) CONDITIONED ON CUSTOMER NOTIFYING EXIT GAMES PROMPTLY IN WRITING OF ANY SUCH ACTION (AND IN ANY EVENT, WITHIN FIVE (5) CALENDAR DAYS OF CUSTOMER'S DISCOVERY OF THE FACTS GIVING RISE TO SUCH ACTION), CUSTOMER GIVING EXIT GAMES SOLE CONTROL OF THE DEFENSE THEREOF AND ANY RELATED SETTLEMENT NEGOTIATIONS, AND CUSTOMER'S REASONABLE COOPERATION INCLUDING, AT EXIT GAMES' REASONABLE REQUEST AND EXPENSE, ASSISTING IN SUCH DEFENSE.
If Software (or any component thereof owned by Exit Games) becomes, or in Exit Games' opinion is likely to become, the subject of an infringement claim, Exit Games may, at its option and expense, either (i) procure for Customer the right to continue exercising the rights licensed to Customer under this Agreement, or (ii) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Exit Games' reasonable opinion, commercially reasonable, Exit Games may terminate the applicable Software license agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Exit Games will have no obligation under this Section 13.1 or otherwise with respect to any infringement claim based upon (i) any unauthorized use or use of the Software other than in accordance with this Agreement and the Documentation, (ii) any Exclusions, or (iii) not installing and using an Update within three (3) months or an Upgrade within twelve (12) months after its release. This Section 13.1 states Exit Games' entire liability and Customer's sole and exclusive remedy for infringement claims and actions

13.2 Customer Indemnification
Customer shall indemnify, defend, and hold harmless Exit Games, its Affiliates and Subcontractors, and each of their respective officers, directors, employees, agents, successors and assigns, from and against all third party suits, claims, demands, penalties, fines, charges, proceedings, causes of action, damages, looses, liabilities, costs and expenses of any nature (including attorneys' fees) that result from or arise out of (i) Customer’s breach of any applicable law, rule or regulation, including, without limitation, any data privacy or protection laws, (ii) Customer infringing, misappropriation or otherwise violating any intellectual property right or other right of any third party, or (iii) negligence or a more culpable act or omission by Customer, any Authorized User, or any third party on behalf of Customer, in connection with this Agreement.


14.0 LIMITATION OF LIABILITY

14.1 EXCLUSION OF DAMAGES
(I) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EXIT GAMES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOSS OF GOODWILL, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE ONE OR MORE PHOTON SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF A PHOTON SERVICE, INCLUDING, WITHOUT LIMITATION, ANY FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE; AND (II) IN ADDITION TO AND WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL EXIT GAMES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES OF ANY KIND RELATING TO OR RESULTING FROM INFRINGEMENT OF ANY THIRD-PARTY PATENTS OR RIGHTS THEREIN (INCLUDING, BUT NOT LIMITED TO, LIABILITY RESULTING FROM EXIT GAMES' INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT IN CONNECTION WITH ANY SUCH INFRINGEMENT OF THIRD-PARTY PATENTS).

14.2 CAP ON MONETARY LIABILITY
IN NO EVENT SHALL EXIT GAMES’ COLLECTIVE AGGREGATE LIABILITY TO CUSTOMER (OR TO ANY OTHER PERSON OR ENTITY) IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER EVER EXCEED TEN THOUSAND (10,000) US DOLLARS UNDER ANY LEGAL OR EQUITABLE THEORY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE, OR RESULTING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.


15.0 Remedies
Customer’s rights and remedies in the event of a breach or alleged breach of this Agreement by Exit Games shall be limited to Customer’s right, if any, to recover damages in an action at law and in no event shall Customer be entitled by reason of any breach or alleged breach to enjoin, restrain, or seek to enjoin or restrain the distribution or other exploitation of a Photon Service or any other Exit Games products or services, or to seek any injunctive or other equitable relief.


16.0 Publicity
During the term of this Agreement, Customer hereby agrees that Exit Games shall have the right, but not the obligation, to include on the Exit Games website and in other materials promoting Photon Service Customer's name and logo as a customer that uses a Photon Service.   


17.0 Confidentiality
The Photon Services and all trade secret information incorporated therein or derived, directly or indirectly, therefrom are confidential information of Exit Games. Customer shall keep in confidence and trust and not disclose or disseminate, or permit any employee, agent or other party working under Customer's direction to disclose or disseminate, the substance of any such confidential information of Exit Games.  The commitments in this Agreement will not impose any obligations on Customer with respect to any portion of the received information which, as evidenced by independent documentation: (i) is now generally known or available or which hereafter, through no act or failure to act on Customer's part, becomes generally known or available, or (ii) is rightfully known to Customer at the time of receiving such information. Customer acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Exit Games' confidential information and that Exit Games may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.


18.0 Privacy and EU Data Act

18.1 Privacy
Each party will be responsible for its own compliance with all applicable data protection/privacy laws and regulations. Notwithstanding the foregoing, Exit Games will process personal data and personal information in accordance with the terms and conditions of the Data Processing Addendum (currently available at dashboard.photonengine.com/account/dpa) that is incorporated herein by reference. 

18.2  EU Data Act
If the EU Data Act (Regulation (EU) 2023/2854) applies to Customer, Customer also agrees to the Data Act Terms ( "Data Act Terms", currently available at http://downloads.photonengine.com/download/public/Photon_Data_Act_Terms_2026-02.pdf). To the extent there is a conflict between this Agreement and the Data Act Terms, the Data Act Terms shall prevail. 


19.0 Customer Data

19.1 Customer Control and Responsibility
Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use, (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized Users in connection with a Photon Service or the Dashboard, (iii) the Customer Systems; and (iv) all access to and use of a Software directly or indirectly by or through the Customer Systems or Customer’s or its Authorized Users’ Dashboard, with or without Customer's knowledge or permission.

19.2 Ownership of Customer Data
As between Customer and Exit Games, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, subject to the following: Customer hereby grants all such rights and permissions in or relating to Customer Data (i) to Exit Games, its Subcontractors, and each of their respective employees as are necessary or useful to perform the Photon Services, and (ii) to Exit Games as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.


20.0 Audit
Exit Games has the right to perform an audit to verify that Customer is using the Software in compliance with this Agreement and as licensed. The audit will be performed during normal business hours upon not less than fifteen (15) calendar days' prior written notice to Customer (notification via email is deemed sufficient for this purpose). The audit will be conducted at Exit Games' sole cost and expense and will be subject to reasonable security and access restrictions. Customer will be permitted to have Customer personnel present during the audit. If an audit conducted under this Section discloses that Customer has underpaid by more than 5% any Fees payable under this Agreement during the period covered by the audit, Customer will pay Exit Games the amount of that underpayment and, in addition, will reimburse Exit Games' reasonable and actual costs for that audit.


21.0 Term

21.1 Term Commencement
The Term of each Software license will commence on the date that Exit Games accepts Customer's relevant Software license order. 

21.2 Software License
For Software licenses other than a Premium Cloud license or a Trial Software license, the initial term ("Initial Term") of each Software license shall be twelve (12) months, unless a different Initial Term is agreed between the parties. After expiration of the Initial Term, (i) a Software license with an Initial Term of twelve (12) months or more will automatically renew for additional twelve (12) months terms, and (ii) a Software license with an Initial Term of less than twelve (12) months will automatically renew for additional one (1) month terms, unless either party gives the other written notice (notification via email or, if available, the termination functionality provided in Dashboard is deemed sufficient for this purpose) at least ten (10) calendar days before the end of the relevant term. 

21.3 Premium Cloud License 
Upon commencement of the Term of a Premium Cloud license, Exit Games will provide the Premium Cloud to Customer until either party notifies the other party with at least one (1) calendar day prior written notice (notification via email or, if available, the termination functionality provided in Dashboard is deemed sufficient for this purpose) to the end of the then current calendar month that it wants to discontinue to receive or provide the Premium Cloud. 

21.4 Trial Software License
Exit Games will specify the Term of a Trial Software license at the time Exit Games makes the relevant Trial Software license available to Customer. Notwithstanding the foregoing, Exit Games and Customer reserve the right to terminate a Trial Software license at any time and for any reason.


22.0 Termination

22.1 Termination for Convenience
Exit Games may terminate this Agreement for convenience with twelve (12) months prior notice. Customer may terminate this Agreement for convenience with six (6) months prior notice. 

22.2 Termination for Breach
This Agreement may be terminated by either party if the other party materially breaches this Agreement and, in case of a breach capable of curation, does not cure the breach within thirty (30) calendar days after receiving written notice thereof from the non-breaching party. Additionally, this Agreement may be terminated by Exit Games in the event that Customer fails to pay applicable Fees when due.  

22.3 Termination for Insolvency
Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

22.4 Effect
Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (i) all rights licensed and obligations required hereunder shall immediately cease (including Customer's right to access and use the Software except for Customer’s rights under Section 7.1 and 7.3, however provided that Exit Games does not terminate this Agreement according to Section 22.2 in which case these rights will cease too, (ii) Sections 10.2 through 10.5, 11.0, 13.2, 14.0, 15.0, 17.0, 19.0, 22.4, 23.0, 24.0 as well as any provisions with express survival language and any provisions that by their nature should survive termination and expiration of this Agreement, shall survive termination and expiration, (iii) Customer will promptly delete and destroy all instances of the Software in its possession or control (if any), and (iv) Customer shall pay to Exit Games any outstanding Fees that have accrued prior to the date of termination. 


23.0 Fees and Payment

23.1 Fees
The Fees for a Software license that is available for Customer are set forth on Exit Games' detail page on Exit Games' website (currently: https://dashboard.photonengine.com/download/public/Photon_Price_Listing_US.pdf) or Customer’s Dashboard. Exit Games may update the Fees, making commercially reasonable efforts to update them no more than once per year on sixty (60) calendar days’ notice (notification via email or, if available, the Dashboard is deemed sufficient for this purpose) to the Customer. In some cases of tax authority, governmental action or other unforeseen circumstances beyond the control of Exit Games, Fees may be increased on less than sixty (60) calendar days’ notice.

23.2 Payment 
Unless agreed otherwise, Customer will pay to Exit Games, as applicable, all Fees in advance of the then-current term (i.e., payment for the Initial Term is due prior to the commencement of the Initial Term, and payment for all subsequent renewal terms is due prior to each renewal term) via the payment mechanisms accepted by Exit Games. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Exit Games' income). Each party is responsible for its own expenses under this Agreement.

23.3 Premium Cloud
Notwithstanding anything to the contrary herein, Customer shall pay to Exit Games Premium Cloud license Fees on a monthly basis, consisting of base Fees for a Premium Cloud license to be paid in advance and Fees for additional Peak CCU made available via Auto-Scaling in the then previous calendar month ( "Peak CCU Fees"), if any. Notwithstanding the foregoing, Exit Games, in its reasonable discretion, may ask for advance payment of Peak CCU Fees based on Exit Games estimated need of Customer’s Peak CCU in the then current or next calendar month. In the event that the Peak CCU Fees paid in advance is below the actual amount of Peak CCU Fees to be paid based on the Peak CCU licensed to Customer in that calendar month, Exit Games shall invoice Customer for the remainder of the Peak CCU Fees at the end of this calendar month. In the event that the Peak CCU Fees paid in advance is above the actual amount of Peak CCU Fees to be paid based for the Peak CCU used by Customer in relevant calendar month, Exit Games will not refund to Customer any unused Peak CCU Fees, but shall issue a credit equal to the unused Peak CCU Fees (the "Peak CCU-Credit"). The Peak CCU-Credit shall be deducted from any Fees Customer may have to pay for any future Software license under this Agreement, provided, however, that the Peak CCU-Credit shall only be valid for three (3) years, commencing on the day Customer paid the Peak CCU Fees in advance.

23.4 Late Payments
Late payments will bear interest at the lesser of one and one-half percent (1.5%) per month, compounded monthly (equivalent to 19.56% per annum) or the highest rate permitted by law, until paid in full. 

23.5 Suspension
Exit Games may suspend the provision of Software immediately if any Fees are not paid by Customer more than fifteen (15) calendar days after the date payment is required pursuant to this Section 23.0, and such suspension to remain in effect until all such Fees are paid in full.


24.0 Miscellaneous
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by a Force Majeure Event.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the relevant Force Majeure Event; provided however that (i) the affected party gives prompt written notice to the other party and takes commercially reasonable steps to mitigate the effects of the applicable Force Majeure Event, and (ii) after a delay of ninety (90) calendar days or more after the affected party's notice, either party may terminate this Agreement upon written notice to the other given in accordance with the notice provisions hereof.  This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Customer will not assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without Exit Games' prior written consent. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of New York, without regard to New York conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in New York.  Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Exit Games. In the event of a conflict between any agreement, exhibit, purchase order, online terms, or related document submitted by or on behalf of Customer to Exit Games, this Agreement shall control and take precedence and shall only be modified to the extent a later writing explicitly references it including the numbered and titled section to be amended and superseded. The terms on any purchase order or similar document submitted by Customer to Exit Games will have no effect and are hereby rejected. If not set out otherwise in this Agreement all notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its main corporate headquarters and sent to the attention of such party's Chief Executive Officer.