This W4 Games Consoles Educational License Agreement (the “Agreement”) sets forth the terms of the agreement between  W4 Games Europe Limited (the “Company”) and the licensee of the Software (defined below)  (the “Licensee”).  For the purposes of this Agreement, the Licensee refers to a person or organization who has licensed the Software through the W4 Games website or such other portal that W4 Games may establish from time to time (the “W4 Games Portal”).

1. Purpose of the Educational License; Licensee Assent to Educational License Terms and Conditions

The purpose of the Educational License (defined below) is to permit universities or students to use W4 Games Consoles (the “Software”) in connection with an educational program or use that is approved by the Company (the “Educational Program”).  An Educational Program means a structured course of study or training that is offered by an accredited academic institution, non-profit organization, or other entity whose primary purpose is education or training. To qualify as an Educational Program in connection with the Educational License, the program must:

 (i) be directed toward the development of knowledge or skills in an academic, research, or vocational context; and

(ii) be formally approved, recognized, or sponsored by an educational institution, government agency, or similarly reputable body.

This includes, but is not limited to, post-secondary school programs, university and college courses, continuing education programs, vocational training, and non-profit-led learning initiatives, provided that the students in such programs are at least 18 years of age.  The Licensee agrees to provide the Company with such information as the Company may request from time to time to confirm that the Software is being used in connection with an Educational Program.

By selecting the Educational License on the W4 Games Portal, the Licensee agrees to be bound by any and all terms and conditions regarding the Educational License set forth in the W4 Games Portal and the terms and conditions of this Agreement.

In addition to the Software, the Company may make available to the Licensee certain materials in connection with the Software (the “Materials”).  For the purpose of this Agreement,  Software includes versions of software as such software may be updated from time to time.  Materials includes such versions of the Materials as may be updated from time to time.  

Materials may be developed, in whole or in part, by third parties contracted by the Company.  The Company makes no representations regarding Materials developed by third parties.  

2. Software Access

If the Company provides Software to the Licensee, it is the intention of the Company to provide such software through a dedicated GitHub repository, a link to which will be provided following the execution of this Agreement.  The Company has the right to change the means of delivery of the  Software and the  Materials to the Licensee  at any time.

3. Educational License Grant and Restrictions on Software Use 

Subject to acceptance of and compliance with this Agreement and the Company Privacy Policy,  the Company grants the Licensee  a personal, limited, non-exclusive, non-transferable, revocable license (the “Educational License”) to use the  Software. The Software shall be used solely for educational  purposes and may be used until such time that the Agreement is terminated in accordance with the terms and conditions of this Agreement. 

Except as otherwise permitted under this Agreement, or otherwise agreed to by the Company and the Licensee, the Educational License does not grant the Licensee the right to use the Software for any other purpose, or to disclose, reproduce, distribute, transfer, modify the Software or create derivative works based on it for any purpose. 

The Licensee agrees not to change, modify, decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of any Software unless permitted under this Agreement or otherwise agreed to by the Company in writing. Further, the Licensee agrees that the  Software will only be used for educational purposes,  and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. The Company shall retain, at all times, full ownership of all  Software and the Materials and all intellectual property in connection with the  Software and the  Materials, and except as expressly set forth herein, no other rights or licenses are granted or to be implied in favor of Licensee  with respect to any additional Company intellectual property that may exist at the time of this Agreement or developed in the future. 

4. Further Restrictions on  Software Use

The Software is provided solely for lawful purposes and uses and Licensee represents that it will not use the Software to violate the terms and conditions of any agreements between Licensee and third parties, infringe upon the intellectual property rights of any third party or infringe upon the privacy rights of any third party. Further, Licensee is responsible for ensuring that its use of the  Software is in accordance with this Agreement and any applicable laws, statutes, ordinances, regulations and rules. 

5. Educational  License Cost

The Software shall be provided to the Licensee free of charge. The provision of the Software to the Licensee free of charge does not give the Licensee the right to receive a commercial version of the Software.

6. Software Use Administration

The Company plans, but is not under an obligation, to create one or more specific sites on GitHub to facilitate the use of the Software  (each, a “GitHub Site” and collectively, the “ GitHub Sites”).  Once a GitHub Site is created, it will be used for providing information about the Software. Licensees will be provided with a link to the relevant GitHub Site once it is operational. Licensees  should check the GitHub Site frequently for any updates and announcements regarding the Software, new Software features and updates regarding Materials. 

7.  Software Feedback 

The Company may provide Licensee with opportunities to provide feedback on the  Software and  Materials and offer suggestions for improvement. This feedback (collectively, the “Feedback”) may include, but is not limited to:

• Providing general comments on the Software; 
• Providing comments on the features and functionality of the Software;
• Identifying Software bugs and other issues that affect Software functionality; and
• Making requests for different features and functionalities.  

 The Company may request this information from Licensee through different means, including but not limited to:

• E-mail;
• in-person meetings;
• telephone conversations;
• videoconferencing;
• text messages;
• questionnaires;
• bug submission forms; and
• other feedback-capturing methods that the Company may use from time to time. 

By signing this Agreement, Licensee consents to the Company contacting Licensee regarding the  Software and the Materials through any of the means set forth in this Agreement. Licensee further authorizes the Company to use any Feedback for any business purpose, regardless of whether that business purpose is related to the Software or other products and services that the Company may develop. 

Furthermore, Licensee authorizes the Company to use the Feedback without restriction. 

8. Confidential Information; Non-Disclosure 

8.1 Confidential Information Defined.  Licensee agrees that the Licensee, Materials, discussions regarding the  Software and  Materials and other information the Company may disclose to the Licensee from time to time (such information collectively, the “Confidential Information”) shall be considered and treated by the Licensee  as confidential. Licensee  understands that the Confidential Information is sensitive and its disclosure could cause the Company substantial harm. 

For the avoidance of doubt, Confidential Information shall not be deemed to include information  which (i) the Licensee proves was in its possession prior to the time the Company disclosed such information to the Licensee; (ii) became public knowledge for a reason other than the result of improper action by the Licensee; (iii) the Licensee can prove was independently developed by the Licensee without the use of any Confidential Information; (iv) was lawfully  obtained from a third party who had the right to transfer or disclose it to Licensee without restriction; or (v) the Company has authorized in writing may be disclosed.  

8.2 Nondisclosure. Licensee agrees not to use any Confidential Information disclosed to it by the Company for any purpose other than in connection with its use of the Software.  

The Licensee agrees that it will protect the Confidential Information. The Licensee agrees that it will take all reasonable measures to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information.  

Such measures shall include the highest degree of care that the Licensee utilizes to protect its own Confidential Information. The Licensee agrees to immediately notify the Company in writing of any misuse or misappropriation of Confidential Information which the Licensee becomes aware of.  

Licensee acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm to the Company and agrees that the Company will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have. 

8.3 Ownership of Confidential Information. Licensee agrees that all Confidential Information shall remain the property of the Company, and that the Company may use such Confidential Information for any purpose without obligation to Licensee. Nothing contained herein shall be construed as granting or implying any transfer of rights to Licensee in the Confidential Information, or any patents or other intellectual property protecting or relating to the Confidential Information. 

8.4 Return of  Materials. Any materials or documents that have been furnished by the Company to Licensee, including copies of such documentation, will be promptly returned by the Licensee  within 10 (ten) days after this Agreement has been terminated or at the written request of the Company. 

8.5. Restriction on Use of Confidential Information. Licensee agrees to use the Confidential Information solely for the permitted uses as set forth in this Agreement.  

9. Software Warning 

The Software may contain defects, errors or bugs that could cause failures, corruptions, or loss of data and/or information from online accounts, computers, and/or other devices. The Company strongly encourages you to take all reasonable precautions regarding the Software and back-up all data and information on your computer, devices, and accounts prior to your use of the Software.  

10. Data Collection and Usage 

10.1 Data Collection. In order to help the Company improve the  Software and the  Materials, Licensee acknowledges that the Company and its subsidiaries and affiliated entities may collect, use, store, transmit, process, and analyze data related to the Licensee’s use of the  Software and the  Materials. 

10.2 Privacy Policy. Data collected pursuant to this Section 10 will be treated in accordance with the Company’s Privacy Policy, which is incorporated by reference into this Agreement.  

11. No Obligations of Support and Maintenance 

The Company shall not be obligated to provide any maintenance, technical, or other support in connection with the Software. In its sole discretion, the Company may provide support at such time and in such form as the Company may determine to the Licensee.  If support is provided, Licensee agrees to abide by any support procedures, rules and/or policies that the Company may provide or communicate to the Licensee and update from time to time.  Any support and maintenance provided by the Company to Licensee may be terminated at any time.

The Company may from time to time, but is under no obligation, to make available updates, enhancements and/or modifications to the Software and the Materials and may, at its sole discretion, provide such updates to the Licensee.  The provision by the Company to the Licensee  of such updates, enhancements and/or modifications to the Software shall be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on your use of the Software and the Company’s disclaimer of warranties. 

12. Future Products 

You acknowledge the Company has no obligation, express or implied, to develop further  versions of the Software.  

13. Third Party Software and Information 

The Software may contain software and other intellectual property developed by third parties (“Third-Party Intellectual Property”). The Company makes no representations or warranties regarding and has no responsibility regarding such Third-Party Intellectual Property. 

14. No Warranty 

The Licensee expressly acknowledges and agrees that, to the extent permitted by applicable law, all use of the Software by you is at your sole risk. The Company is providing the Software and the Materials, to the Licensee solely on an “as is” basis and without any warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, accuracy, completeness, performance, and fitness for a particular purpose. 

15. Term and Termination 

This Agreement will continue in effect until terminated in accordance with this Section 15. Following termination of this Agreement, the restrictions of Sections 8-22, 24, 25 and 28 will continue to remain in force and effect.  

15.1 Term. The terms of the Educational License granted to you under Section 3 of this Agreement shall commence upon your use of the Software and will terminate automatically  upon the earlier of  (i) the termination of this Agreement as described in this Section 15; or (ii) the date specified in a separate license accompanying the Software, if any. 

15.2 Termination of Agreement by Licensee. You may terminate this Agreement at any time and for any reason by providing written notice to the Company.  However, you agree that if you do terminate the Agreement you will promptly return all materials regarding the  Software and the Materials to the Company.  If you terminate the Agreement you also agree that you will immediately discontinue your use of the  Software and consent to the Company removing any access you may have to the  Software, the Materials and the GitHub Sites. 

15.3 Termination of Agreement by Company.  The Company may terminate this Agreement at any time, with or without cause, immediately upon written notice to you. Within five (5) days of your receipt of the Company’s termination notice, you will cease all use of and return the  Software, the Materials and all other Confidential Information you may have received from the Company.   

16. Indemnification 

The Licensee shall indemnify, defend, and hold harmless (i) the Company; (ii) Company affiliates; and (iii) Company and its affiliate’s directors, officers, employees, and agents (each an “Indemnified Person”) against all liabilities, losses, damages, deficiencies, claims, actions, judgments, settlements, awards, interest, fines, penalties, expenses, or costs (including reasonable attorney’s fees) (collectively “Losses”) that, directly or indirectly, are based on the Licensee’s  breach of this Agreement, information provided by Licensee,  or Licensee’s  infringement on the rights of a third party or breach of agreement with a third party. 

Licensee agrees that its obligations under this provision of the Agreement are not the Company’s sole remedy for a breach and are in addition to any other remedies Company may have against you under this Agreement or at law. Your indemnification obligations will survive the termination of this Agreement. 

17. DISCLAIMER OF LIABILITY 

To the extent not prohibited by applicable law, you assume all risks and all costs associated with testing, installation, or use of the  Software that may be provided from time to time under this Agreement, including, without limitation, any back-up expenses, costs incurred for the use of the  Software on the Licensee’s computer, devices and/or peripherals, and any damage to any equipment, software, information or data, and in no event will company be liable for any indirect, special, incidental or consequential damages, whether arising in tort (including negligence), contract or otherwise, arising out of or related to this agreement, including any liability that stems from any use of the  Software on the Licensee’s computer, devices and/or any peripherals connected thereto, and/or from any other Confidential Information, and/or Company’s performance or failure to perform under this Agreement, even if the Company has been advised or is aware of the possibility of such damages. In no event shall the Company’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose. 

18. Relationship of Parties 

Nothing in this Agreement shall be deemed to cause a party to this Agreement to be considered a partner, joint venture partner or employee of the other party for any purpose. 

19. Governing Law 

This Agreement is governed by and construed in accordance with the laws of Ireland without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of the State of New York. 

Any legal suit, action, or proceeding arising out of this Agreement or the license granted hereunder may be instituted in the courts of the State of New York and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 

20. Entire Agreement 

This Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes all prior negotiations, understandings, undertakings or agreements (whether oral or written) between the Parties. This Agreement may not be amended, except in a writing signed by Licensee and the Company.

21. No Waiver or Assignment 

No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Company, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by the Licensee in whole or in part. Any contrary assignment shall be null and void. 

22. Severability 

The Company and the Licensee agree that in the event that any provision of this Agreement is found to be unenforceable, the rest of the Agreement shall remain in full force and effect.

23. Counterparts 

The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. 

24. Third-Party Beneficiaries 

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. 

25. Remedies 

Licensee agrees that any violation or threatened violation will cause irreparable injury, both financial and strategic, to the Company and in addition to any and all remedies that may be available, in law, in equity or otherwise, the Company shall be entitled to injunctive relief against the threatened breach of this Agreement by the Licensee without the necessity of proving actual damages in such court as the Company may find convenient in order to enforce its rights. 

26. Modification of Agreement

At all times, the Company reserves the right to modify the terms, conditions, and policies of the Educational Program and revoke your participation in the Educational Program.  If the Company makes changes to the terms and conditions herein, the Company will notify you and provide the Licensee with the revised terms and conditions to Licensee and Licensee’s continued use of the  License will be conditioned on the agreement thereof. 

27.  Access to Software and Other Materials

The Company may in its sole discretion make Software, and updates thereto, available to Licensee through a web application or downloadable software application, including the  Website or the Company’s GitHub repository. From time to time, the Company, at its sole option, may also provide the Licensee with software or services  (such materials collectively, the “Ancillary Tools”).  

All use of the Ancillary Tools and Software shall be in accordance with the terms and conditions of this Agreement. If the Ancillary Tools are accompanied by a separate license agreement(s), you agree the terms therein also govern your use of the Ancillary Tools. If there are no other license agreements accompanying Ancillary Tools, your use of the Ancillary Tools is subject to the terms of this Agreement. 

28. Representations of the Licensee

The Licensee makes the following representations:

(i) the Licensee has obtained the necessary SDK from the Console Manufacturer, including any required tools, libraries, documentation, and licenses, to develop and port the Licensee’s video game to the Console Manufacturer’s console.  For the purpose of this Agreement, “Console Manufacturer” means the console manufacturer the Licensee wishes to port its video game to.

(ii) the Licensee has received all necessary authorizations, approvals and permission from the Console Manufacturer to access, use, and integrate the SDK in connection with the development and porting of the video game to the Console Manufacturer’s console.

(iii) the Licensee agrees to comply with all terms, conditions, and guidelines set forth by the Console Manufacturer in connection with the use of the SDK and the development of software for the relevant console.

(iv) the Licensee  has been fully certified and authorized by the relevant Console Manufacturer to port its game to the relevant console.

(v) the person who assented to the terms of this Agreement in the W4 Games Portal is at least 18 years of age and that they have the authority to legally bind the Licensee.

With respect to representations (i), (ii), (iii) and (iv) set forth in this Section of Agreement, the Licensee hereby authorizes the Company to contact the relevant Console Manufacturer to confirm that the Licensee has received all necessary authorizations to allow the Licensee to port a video game to its console.

The Licensee further represents that it will use the Educational License in connection with an Educational Program, as such term is defined in this Agreement. The Licensee recognizes and agrees that the Company may contact any institution managing an Educational Program to inquire about or request information in connection with an Educational Program.

29. License Attribution and Work Product

The Licensee hereby agrees:

(i) to attribute the use of the Software in any video or work product developed by the Licensee (the “Work Product”);

(ii) to allow the Company to reference the Work Product and the use of the Software in connection with the Work Product in Company websites, marketing materials and presentations (the “Marketing Materials”); and

(iii) to allow the Company to include the Work Product in Marketing Materials, subject to any third party rights the Company may be apprised of in writing from time to time.