Star Wars Battlefront II

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TERMS OF USE, LICENSE AND NON-DISCLOSURE AGREEMENT
(BETA TESTING OF A PRE-RELEASE GAME)


LucasArts, a division of Lucasfilm Entertainment Company Ltd. (“LucasArts”) and Pandemic Studios, LLC  (“Pandemic”) have previously designed and developed, and continue to design and develop, and LucasArts will be the publisher of, a software product entitled Star Wars Battlefront II™ (the “Game”).  LucasArts has established a Beta Test program (the “Beta Program”) to, among other things, allow a limited number of people to test the features, capabilities and performance of one or more prerelease version(s) of the Game (the “Beta Software”) and provide feedback and comments to LucasArts.  By clicking the “I AGREE” button below:


(1)	You acknowledge you are eighteen (18) years of age or older, and are not a principal or employee of a developer, manufacturer or publisher of video or computer games (other than LucasArts or Pandemic), and are entering into this agreement on a completely voluntary basis with no expectation of consideration, remuneration or any form of compensation whatsoever other than what is expressly provided for in this agreement (IF YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT PARTICIPATE IN THE BETA PROGRAM);


(2)	You acknowledge LucasArts may, in its discretion and at any time before or during the Beta Program, accept or reject your application for the Beta Program (or terminate your participation therein), and if you are accepted, the Agreement below is a binding contract between you and LucasArts;


(3)	You acknowledge your application shall not be complete, nor shall you be considered for entry into the Beta Program, unless and until you provide LucasArts with certain DirectX diagnostic information from your computer as part of this application process, if requested by LucasArts;


(4)	LucasArts may, in its discretion, reschedule the start date or end date of the Beta Program at any time in its sole discretion; 


(5)	You agree and consent, and grant LucasArts the right, for the term of your participation in the Beta Program, to allow LucasArts to upload certain DxDiag DirectX diagnostic information, hardware, software, driver, operating system and related information, including crash logs, from your computer solely for the purpose of analyzing, improving and maintaining the Game; 


(6)	You agree that LucasArts may, from time to time, contact you by email with news about the Game and/or the Beta Program; and


(7)	You agree to all of the terms of the Agreement set forth below.


AGREEMENT


1.	License Terms.


	1.1	License Grant.   LucasArts grants you (the “Recipient”), the non-exclusive, non-transferable, revocable, limited right to install the Beta Software onto a single computer for Recipient’s personal use.  Recipient may not use, copy, modify, publish, transmit, broadcast, post, publicly perform or display, create derivative works of, sell, auction, loan, lease, rent, distribute, transfer or disclose all or any part of the Beta Software (including, without limitation, any screenshots, videos, documentation or manuals relating to the Game) except as provided in this Agreement.  Recipient may only use the Beta Software for testing and evaluation purposes as set forth in Section 1.4 below.  All other rights are reserved to LucasArts.


1.2	License Restrictions.  Recipient shall not:


(a)	Sublicense to, transfer, network, transmit, distribute or permit use of the Beta Software by, any third party;


(b)	Reverse engineer, decompile, or disassemble the Beta Software;


(c)	Make copies of the Beta Software other than one (1) copy for back-up purposes to be used solely as a replacement for the original copy, provided that Recipient includes on the back-up copy all copyright and other notices that are included on the Beta Software and Recipient’s use of such back-up copy shall be subject to this Agreement; and


(d)	Export the Beta Software in violation of the export control and similar laws of the United States of America and other countries.


1.3	Indemnification.  Recipient (i) agrees to indemnify, defend and hold harmless, and (ii) hereby releases, LucasArts and/or its partners and licensors and their direct and indirect parent, subsidiary and sister corporations, and their respective officers, directors, employees, licensors and agents from and against any losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with the use of the Beta Software and all other services or activities related thereto.


1.4	Testing and Evaluation Obligations.  Recipient hereby agrees to perform all of the following obligations: (i) to test, evaluate and analyze the Beta Software and its operation, features, capabilities and performance, (ii) to comply with the reasonable requests of LucasArts from time to time regarding testing, and (iii) to provide feedback and comments to LucasArts (including, but not limited to, bug reports and test results).  All of Recipient’s feedback and comments shall be the sole and exclusive property of LucasArts, and LucasArts shall have the perpetual right to use all or part of Recipient’s feedback or comments in any manner or media now known or hereafter devised.


1.5	Personally Identifiable Information; Monitoring; Privacy Issues.  Recipient shall be required to provide to LucasArts, or allow LucasArts to upload on an ongoing basis, as a condition of participation in the Beta Program, certain personally identifiable information, including, but not limited to, certain specifications of Recipient’s hardware, DxDiag DirectX diagnostic information, video cards, drivers, operating system, crash logs and software (“Personal Information”) and Recipient hereby specifically grants LucasArts the right to upload such information from Recipient's computer system during his or her participation in the Beta Program, solely for the purpose of evaluating, analyzing, maintaining and improving the Game.  LucasArts’ retention and use of all Personal Information shall be subject to LucasArts’ posted privacy policy, as that policy may be modified by LucasArts in its discretion from time to time.  Recipient acknowledges any and all Beta Software character data is stored, and any and all communications that he or she makes within the Beta Software, the Game or as part of the Beta Program (including, but not limited to, messages solely directed at another player or players), may or may not be monitored by LucasArts or other personnel and, accordingly, Recipient has no expectation of privacy in any such communication or in any communication referenced in Section 5.3 herein. Recipient acknowledges and agrees that LucasArts may transfer and process Game, Beta Program and such other information (including your personally identifiable information and personal data) to the United States or other countries or may share such information with our licensees and agents in connection with the Beta Program, Beta Software and the Game.  In addition, you hereby expressly consent and agree that LucasArts may contact you from time to time via email in connection with news about the Game and/or Beta Program.


1.6 	Term of the Agreement.  Recipient’s participation in the Beta Program, and the grant of license herein, may be terminated by LucasArts at any time, for any reason or for no reason, in LucasArts’ sole and absolute discretion, by providing written, electronic or emailed notice to Recipient.  Recipient may, at any time and for any reason or for no reason, terminate his or her participation in the Beta Program by providing written or emailed notice to LucasArts.  The Beta Program will be terminated upon the earlier of (a) LucasArts’ written, electronic or emailed notice to Recipient or (b) the commercial release of the Game.  The termination of Recipient’s participation in the Beta Program and/or the termination of the Beta Program, however, shall not modify or supersede the survival provision in Section 6.1 below.      


2.	Confidentiality.


2.1	Confidential Information Defined.  “Confidential Information” shall mean (a) any and all information relating to or contained in the Beta Software, Beta Program and/or the Game, including, without limitation, information relating to (i) the performance, capabilities, bugs and contents of the Beta Software, (ii) Recipient’s feedback and comments, (iii) any other Beta Program participant’s feedback and comments, and (iv) any LucasArts or Pandemic employee’s feedback and comments, (b) the existence and terms of this Agreement, and (c) any and all information relating to the future or proposed games, services or business operations of LucasArts and/or its partners or licensors.  Confidential Information includes, without limitation, all such information disclosed to Recipient prior to the effective date of this Agreement.  Recipient acknowledges and agrees that the Confidential Information constitutes valuable trade secrets of LucasArts.


2.2	Confidentiality Obligation.  Recipient shall keep the Confidential Information in confidence and shall not publish, disclose, post or otherwise make available, directly or indirectly, any Confidential Information to any third party.  However, Recipient may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that Recipient shall give LucasArts reasonable written notice prior to disclosure and shall comply with any applicable protective order or equivalent. ONCE THE COMMERCIAL VERSION OF THE GAME HAS BEEN RELEASED TO THE PUBLIC, RECIPIENT’S CONFIDENTIALITY OBLIGATION SHALL CONTINUE ONLY WITH RESPECT TO INFORMATION CONCERNING THIS BETA PROGRAM AND ALL FEEDBACK AND COMMENTS (WHETHER FROM RECIPIENT, ANY OTHER PARTICIPANT, OR FROM LUCASARTS OR PANDEMIC EMPLOYEES).


3.	Ownership.  Except for the revocable, limited license expressly granted hereunder, LucasArts retains all rights, title and interests in and to the Beta Software and all copies thereof, and all Game character data in connection therewith.  The Beta Software is copyrighted and is protected by United States copyright laws and international treaty provisions.  Recipient acknowledge that the Beta Software contains valuable trade secrets of LucasArts, and that LucasArts and/or its partners or licensors own all intellectual property rights in and to the Beta Software, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto.  Recipient may not remove the copyright and other proprietary rights notices from the Beta Software.  Recipient agrees that this Agreement shall be retained with all printed and electronic copies of the Beta Software and documentation constituting the Beta Software.  Recipient agrees to prevent any unauthorized copying or distribution of the Beta Software.  Except for the license expressly provided herein, LucasArts does not grant Recipient any express or implied right in any patents, copyrights, trademarks, or trade secret information of LucasArts and/or its partners or licensors. In accordance with Section 1.4, Recipient agrees LucasArts and/or its partners or licensors own all rights, title, and interests in any and all of Recipient’s feedback and comments, without any remuneration, compensation or credit to Recipient.  To the extent that any of the rights assigned herein cannot presently be assigned under applicable law, Recipient agrees to assign such rights at such time as the rights are capable of being assigned.  Recipient agrees at LucasArts’ request to execute such further documents and to do such further acts as may be necessary or desirable to document, perfect, register or enforce LucasArts' and/or its partners or licensor’s ownership of any of the rights, title and/or interests hereunder, in whole or in part including, without limitation, execution of a copyright assignment in a form provided by LucasArts in its sole discretion.  If Recipient fails or refuses to execute any such documents, Recipient hereby appoints LucasArts as Recipient’s attorney in fact, which appointment is coupled with an interest and is irrevocable, to act on Recipient’s behalf and to execute, deliver, record and file such documents. The rights granted, assigned and/or to be assigned by Recipient hereunder are granted for the entire universe and shall inure in perpetuity, and, as set forth above, no further consideration shall be payable to Recipient at anytime in connection therewith.  Recipient will acquire no right to use, and will not use without LucasArts' prior written consent, the names, characters, artwork, designs, tradenames, copyrighted materials, trademarks or service marks of LucasArts or its parent, related or subsidiary companies, employees, directors, shareholders, assigns, successors, licensees, partners or licensors: (a) in any advertising, publicity or promotion; or (b) in any manner other than in accordance with this Agreement.


4.	Injunctive Relief.  Recipient acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that LucasArts shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Recipient, from such breach or threatened breach.  Nothing in this Section 4 shall be construed as preventing LucasArts from pursuing any and all remedies available to them, including the recovery of money damages from Recipient.


 5.	No Warranty; No Liability For Damages; No Support; Character Data.


5.1	No Warranty.  Recipient acknowledges that the Beta Software is a pre-release version and is not a final game.  RECIPIENT ACKNOWLEDGES THAT THE BETA SOFTWARE MAY WELL CONTAIN ERRORS AND DEFECTS.  THE BETA SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE BETA SOFTWARE, THE GAME AND ALL OTHER SERVICES IS WITH RECIPIENT. SHOULD THEY PROVE DEFECTIVE FOLLOWING THEIR RECEIPT BY RECIPIENT, RECIPIENT, AND NEITHER LUCASARTS NOR ITS PARTNERS OR LICENSORS, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR.  Without limiting the foregoing, we do not ensure continuous, error-free, secure or virus-free operation of the CD-ROM or DVD-ROM, as applicable, the Beta Software, the Game, your account or continued operation or availability of any given server. Some states do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability described herein may not apply to you.  This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.


5.2  	No Liability For Damages.  IN NO EVENT SHALL LUCASARTS OR ITS PARTNERS OR LICENSORS, THEIR RESPECTIVE DIRECT AND INDIRECT PARENT, SISTER AND SUBSIDIARY CORPORATIONS, OR EMPLOYEES, AGENTS, LICENSORS, OFFICERS AND/OR DIRECTORS OF ANY OF THE ABOVE, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR LOST PROFITS, DATA OR BUSINESS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA SOFTWARE OR THE GAME, EVEN IF ANY OF THE ABOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Without limiting the generality of the foregoing, no warranty is made that the Beta Software will generate computer programs with the characteristics or specifications desired by Recipient or that the Beta Software will be error-free.  THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.	


5.3	No Support.  LucasArts and Pandemic do not provide any support for the Beta Software.  However, LucasArts may at its sole discretion provide an e-mail address and/or an online forum for Recipient to send any questions and/or comments regarding the Beta Software.  LucasArts does not, however, make any representations or warranties as to the accuracy of any statements or advice provided in response to Recipient’s e-mail(s) and/or board postings.


6.	Miscellaneous.


6.1	Survival. The provisions of this Agreement, other than the first sentence of Section 1.1 and Section 1.4, shall continue in full force and effect even after (i) the Beta Program has been terminated or completed and/or (ii) Recipient’s participation in the Beta Program has been terminated.


6.2	Governing Law; Jurisdiction.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California excluding conflict of law rules and principles.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  Both parties submit to personal jurisdiction in California and further agree that any cause of action relating to this Agreement shall be brought in the County of Marin, State of California (if under State law) or the Northern District of California (if under federal law) and such courts shall have exclusive jurisdiction to determine the validity, construction and performance of this Agreement and the legal relations between the parties hereto.  Recipient hereby waives any claim that such venue is improper or inconvenient.


6.3	Severability.  If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby.


6.4	Entire Agreement.  This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. Except as otherwise described herein, this Agreement may only by changed or amended by a writing signed by both parties hereto.


6.5	Legal Notice.  LucasArts, the LucasArts logo, Star Wars and related properties are trademarks in the United States and/or in other countries of Lucasfilm Ltd. and/or its affiliates.  Star Wars Battlefront is a trademark of Lucasfilm Entertainment Company Ltd.  © 2004, 2005 Lucasfilm Entertainment Company Ltd. or Lucasfilm Ltd.  All rights reserved.  LucasArts, a division of Lucasfilm Entertainment Company Ltd., P.O. Box 29908, San Francisco, CA 94129.
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