Photon Premium Cloud Terms
Legacy – until 31 January 2026
License Agreement for Exit Games Photon Premium Cloud
THIS LICENSE AGREEMENT FOR EXIT GAMES PHOTON PREMIUM CLOUD (THE “PREMIUM CLOUD AGREEMENT”) APPLIES TO EXIT GAMES, INC.’S (“EXIT GAMES” OR “WE”) PHOTON PREMIUM CLOUD PRODUCTS AND SERVICES (COLLECTIVELY, THE “PREMIUM CLOUD PRODUCTS”).
USING THE PREMIUM CLOUD PRODUCTS REQUIRES A VALID LICENSE AGREEMENT FOR EXIT GAMES PHOTON (THE “BASE AGREEMENT”) BETWEEN EXIT GAMES AND YOU, YOUR COMPANY AND/OR OTHER ENTITY(IES) YOU ACT FOR (COLLECTIVELY, THE “CUSTOMER” OR “YOU”), WHICH IS HEREBY INCORPORATED BY REFERENCE. THIS PREMIUM CLOUD AGREEMENT SHALL BE IN ADDITION TO SUCH BASE AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THIS PREMIUM CLOUD AGREEMENT AND THE BASE AGREEMENT, THIS PREMIUM CLOUD AGREEMENT SHALL CONTROL IN RELATION TO PHOTON PREMIUM CLOUD.
PLEASE READ THIS PREMIUM CLOUD AGREEMENT CAREFULLY BEFORE LICENSING, ACCESSING OR USING THE PREMIUM CLOUD PRODUCTS. YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS PREMIUM CLOUD AGREEMENT AND YOU REPRESENT THAT YOU HAVE AUTHORITY TO THIS PREMIUM CLOUD AGREEMENT.
EXIT GAMES MAY REVISE AND UPDATE THIS PREMIUM CLOUD AGREEMENT AT ANY TIME WITHOUT NOTICE BY POSTING THE AMENDED TERMS TO HTTPS://WWW.PHOTONENGINE.COM/TERMS. YOUR CONTINUED USE OF THE PREMIUM CLOUD PRODUCTS MEANS THAT YOU ACCEPT AND AGREE TO THE REVISED PREMIUM CLOUD AGREEMENT.
1.0 Definitions. Capitalized terms that are not otherwise defined in this Premium Cloud Agreement shall have the meanings set forth in the Base Agreement.
2.0 Scope of Premium Cloud Agreement. Subject to the terms of this Premium Cloud Agreement, Exit Games provides to Customer additional CCU for Customer’s use of the Licensed Products (Cloud Version) that Customer has licensed from Exit Games under the Base Agreement.
3.0 User Subscription; Auto-Scaling
3.1 User Subscription. Customer may permit in total up to 2,000 individual CCU for Customer’s use of the Licensed Products. For additional CCU (“Additional CCU”) Exit Games shall use reasonable efforts to automatically provide to Customer the number of Additional CCU in each applicable and available geographic region as necessary for Customer’s use of Licensed Products and all Users’ requests (the “Auto-Scaling”).
3.2 Number of CCU. The number of CCU licensed to Customer in a calendar month shall be the sum of the highest number of CCU in each geographic region where Exit Games has made available additional CCU to Customer in that particular calendar month (the “Peak CCU”).
(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.
4.0 Proprietary Rights. As between the parties, Exit Games will retain all ownership rights in and to the Exit Games Marks, the Premium Cloud Products (including any optional functionality, any derivative works of the Premium Cloud Products that are provided by Exit Games,) and all intellectual property rights incorporated into or related to the foregoing. All rights not expressly licensed by Exit Games under this Premium Cloud Agreement are reserved.
5.0 Subcontractors. Exit Games may from time to time in its discretion engage third parties to provide a portion or all of the Premium Cloud Products (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 the Premium Cloud Products and/or failure of the Premium Cloud Products to be fully operational as a result of the acts or omissions of third-party Subcontractors providing hosting services on behalf of Exit Games).
6.0 Bankruptcy. All licenses granted pursuant to this Premium Cloud 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.
7.0 Warranties and Disclaimer.
7.1 Warranties. Exit Games represents and warrants that the Premium Cloud Products, when used with the Licensed Products as agreed between the parties and in accordance with the Documentation, (a) will perform in all material respects for a period of 30 calendar days of the Initial Term (as defined below), and (b) will not, upon delivery, contain, any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines intentionally designed to permit unauthorized access to or use of either the Premium Cloud Products or Customer’s computer systems (“Viruses”); provided that the Premium Cloud Products does include functionality that verifies that Customer does not exceed the agreed number of CCU, and prevents access to and use of the Premium Cloud Products in the event that Customer fails to pay the applicable Fees (as defined below) when due. In the event of any breach of the warranty in subsection (a) above, Exit Games shall, as its sole liability and Customer’s sole remedy, use reasonable efforts to remedy any deficiencies that cause the Premium Cloud Products 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 Premium Cloud Products) not provided by Exit Games or any open source components or freeware included within the Premium Cloud Products; (ii) modifications to the Premium Cloud Products; (iii) unauthorized use or use of the Premium Cloud Products other than in accordance with the Documentation or (iv) Viruses introduced by Customer or its agents or customers (collectively, “Exclusions”).
7.2 Disclaimer. THE EXPRESS WARRANTIES IN SECTION 7.1 ARE THE EXCLUSIVE WARRANTIES OFFERED BY EXIT GAMES AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. EXIT GAMES DOES NOT WARRANT THAT CUSTOMER’S USE THE PREMIUM CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ERRORS WILL BE CORRECTED OR THAT IT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PREMIUM CLOUD PRODUCTS (INCLUDING ALL COMPONENTS THEREOF AND THE DOCUMENTATION) AND ALL DELIVERABLES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.
8.0 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 the Premium Cloud Products (or any component thereof owned by Exit Games) infringe any United States, European Union and 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. The foregoing obligations are conditioned on Customer notifying Exit Games promptly in writing of such action, Customer giving Exit Games sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Exit Games’ reasonable request and expense, assisting in such defense. If the Premium Cloud Products (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 (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Premium Cloud Agreement, or (b) replace or modify the Premium Cloud Products 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 this Premium Cloud 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 8.0 or otherwise with respect to any infringement claim based upon (i) any Exclusions or (ii) continued use of an Update of the Premium Cloud Products (other than the then-current version of the Software) that is more than 12 months old. This Section 8.0 states Exit Games’ entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
9.0 Limitations on Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EXIT GAMES BE LIABLE TO CUSTOMER, END USERS OR TO ANY THIRD PARTY IN CONNECTION WITH THIS PREMIUM CLOUD AGREEMENT, INCLUDING THE PREMIUM CLOUD PRODUCTS AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER EXIT GAMES IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO EXIT GAMES BY CUSTOMER UNDER THIS PREMIUM CLOUD AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
10.0 Confidentiality. The Premium Cloud Products 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 Premium Cloud Agreement will not impose any obligations on Customer with respect to any portion of the received information which, as evidenced by independent documentation: (a) 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 (b) 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.
11.0 Term and Termination.
11.1. Term. Exit Games will provide the Premium Cloud Products for a Licensed Product until either party notifies the other party with one (1) calendar days prior written notice (notice via email is deemed sufficient for this purpose) to the end of the following calendar month that it wants to discontinue the receiving or provision of the Premium Cloud Products for this Licensed Product.
11.2. Termination. This Premium Cloud Agreement shall continue in effect until terminated as set forth herein. This Premium Cloud Agreement may be terminated by either party if the other party materially breaches this Premium Cloud Agreement and does not cure the breach within thirty (30) calendar days after receiving written notice thereof from the non-breaching party. Additionally, this Premium Cloud Agreement terminates automatically on the days the Base Agreement terminates or expires or may be terminated by Exit Games in the event that Customer fails to pay applicable Fees when due. Upon any termination of this Premium Cloud Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease (including Customer’s and its end users’ right to access and use the Premium Cloud Products); provided that Sections 5.0 through 13.0 shall survive termination, (b) Customer will promptly delete and destroy all instances of the Premium Cloud Products in its possession or control (if any), and (c) Customer shall pay to Exit Games any outstanding Fees that have accrued prior to the date of termination.
12.0 Fees and Payment.
12.1 Fees.
(a) Subject to the terms and conditions below, Customer shall pay to Exit Games the following monthly fees for the Premium Cloud Products (“Fees”):
The Fees include monthly fees for the Premium Cloud Products that Customer licenses under this Premium Cloud Agreement(“Base Fees”)and additional Peak CCU license fees (“Peak CCU Fees”), if any. The amount of the Base Fees and the Peak CCU Fees also depend on the actual Premium Cloud Product licensed by Customer as set forth on Exit Games’ detail page on Exit Games’ website (www.photonengine.com).
(b) The Base Fees shall be payable in advance of each calendar month. In the event that the Peak CCU Fees paid in advance at the beginning of a calendar month 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.
(c) In the event that the Term commences occurs on a date other than the first day of a calendar month or terminates on a date other than the last day of a calendar month, the applicable Fees shall be prorated; such proration shall be calculated on the basis of a thirty-days month.
(d) Exit Games may change the Fees at any time but such changes will not apply to previously terms. Exit Games will notify Customer about any increase of the Fees with sixty (60) calendar days’ prior written notice (notice via email is deemed sufficient for this purpose).
12.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to Exit Games, as applicable, all undisputed Fees owed within thirty (30) calendar days after Exit Games’ issuance of an invoice pertaining thereto. Payments will be sent to the address included on the invoice. 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 Premium Cloud Agreement.
12.3 Suspension of Premium Cloud Products. Exit Games shall have the right to suspend the provision of Premium Cloud Products immediately if any Fees are not paid by Customer more than fifteen (15) calendar days after the date payment is required pursuant to Section 12.2, and such suspension to remain in effect upon all such Fees are paid in full.
13.0 Publicity. During the Term of this Premium Cloud Agreement, Customer hereby agrees that Exit Games shall have the right, but not the obligation, to include Customer’s name and logo as a customer that uses the Premium Cloud Products on the Exit Games website and in other materials promoting the Premium Cloud Products.
14.0 Miscellaneous. The parties are independent contractors with respect to each other, and nothing in this Premium Cloud 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, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. 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. This Premium Cloud Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Premium Cloud 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 Premium Cloud 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 Premium Cloud Agreement must be in a writing that is signed by the parties hereto and expressly references this Premium Cloud Agreement. This Premium Cloud 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 Premium Cloud 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 Premium Cloud Agreement. In the event that any provision of this Premium Cloud 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, (a) 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 (b) the remaining terms, provisions, covenants and restrictions of this Premium Cloud Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Premium Cloud 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. All notices, consents and approvals under this Premium Cloud Agreement must be delivered in writing, by email, 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.