Pre-release Software Terms of Use | PixelPets

PRE-RELEASE SOFTWARE TERMS OF USE

PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE Pixel Pets (temporary placeholder name) BETA PROGRAM AGREEMENT ("AGREEMENT") CAREFULLY. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "ACCEPT" BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE Pixel Pets (temporary placeholder name) BETA PROGRAM.

1

Participation in the Pixel Pets (temporary placeholder name) Beta Program

 

1.1   

The purpose of the Pixel Pets (temporary placeholder name) Beta Program (“Beta Program”) is to make alpha, beta, and other pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants from time to time for the purpose of providing Adventure Studios Global Limited with feedback on the quality and usability of the Pre-Release Software. You understand and agree that participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Adventure Studios Global Limited. You understand that your participation in the Beta Program does not obligate Adventure Studios Global Limited to provide you with any Pre-Release Software. We reserve the right to modify the terms, conditions, and policies of this Beta Program at any time without notice, and to revoke your participation in this Beta Program at any time.

1.2

You also certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to join the Beta Program. This Agreement is void where prohibited by law and the right to become a Beta Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by us in writing, you cannot share or transfer any software or other materials you receive from Adventure Studios Global Limited in connection with being a Beta Program participant. The Adventure Studios Global Limited ID and password you use to login as a Beta Program participant cannot be shared in any way or with anyone. You are responsible for maintaining the confidentiality of your ID and password and for any activity in connection with your account. Notwithstanding the foregoing restrictions in this Clause 1, if you are the parent or legal guardian of individuals between the ages of 13 and the legal age of majority in the jurisdiction in which you reside, you may allow such individuals to share your ID and password for their use in connection with the Beta Program solely under your supervision and only in accordance with this Agreement. You are responsible for such individuals’ compliance with and violations of this Agreement and any other Adventure Studios Global Limited agreements.

2

Access to Pre-Release Software, Seeding Tools and Additional Terms

2.1

You understand that we may make Pre-Release Software available to Beta Program participants for downloading online through the Mac App Store and/or as otherwise provided through the Beta Program (e.g., by manual download of a digital image). From time to time, Adventure Studios Global Limited, at its option, may also provide you with software or services as part of the Beta Program, including but not limited to scripts, code snippets, utilities, configuration profiles, sample code, troubleshooting applications and bug submission tools (“Seeding Tools”) as part of your participation in the Beta Program. All use of such Pre-Release Software and Seeding Tools shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying such Pre-Release Software or Seeding Tools (collectively, “Pre-Release Software” and “Seeding Tools” shall be referred to as “Company Software” for purposes of this Agreement).

2.2

If the Company Software is accompanied by a separate license agreement, you agree that the license agreement accompanying such Company Software, in addition to Clauses 5 and 6 of this Agreement, shall govern your use of the Company Software. Any inconsistencies between the provisions of the license agreement accompanying the Company Software and Clause 5 and 6 of this Agreement shall be governed by this Agreement. If there is no license agreement accompanying the Company Software, your use of the Company Software will be subject to the provisions of this Agreement.

3

License Grant and Restrictions

Subject to your compliance with this Agreement, Adventure Studios Global Limited hereby grants you a personal, limited license to use the Company Software solely for testing and evaluation purposes and only in connection with this Beta Program. Except as otherwise permitted under Clause 15, this license does not grant you the right to use the Company Software for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Company Software. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Company Software (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of open-sourced components included with any such Company Software). Unless otherwise permitted under Clause 15 below, you certify that the Company Software will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. Adventure Studios Global Limited retains ownership of all Company Software, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Adventure Studios Global Limited intellectual property.

4

Feedback

As part of the Beta Program, we will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Adventure Studios Global Limited. We may request this information from you through the Seeding Tools as well as by email, web questionnaires, bug forms, and other mechanisms. By agreeing to this Agreement, you agree that Adventure Studios Global Limited may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. Except as otherwise set forth in Clause 8, you agree that in the absence of a separate written agreement to the contrary, we will be free to use any Feedback you provide for any purpose.

5

Definition of Confidential Information

5.1

The Pre-Release Software and the following information will be considered and referred to in this Agreement as "Confidential Information":

(a)

any information concerning the Pre-Release Software (including its nature and existence, features, functionality, and screenshots);

(b)

any other information disclosed by Adventure Studios Global Limited to you in connection with the Beta Program.

5.2

Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public by us, (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (e) any third party software and/or documentation provided to you by Adventure Studios Global Limited and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Adventure Studios Global Limited and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.

6

Non-use and Nondisclosure of Confidential Information

Except as expressly permitted in this Clause 6, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than individuals who are enrolled in the same individual seed as you, or as otherwise expressly permitted or agreed to in writing by us. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Company Software to third parties. You agree to accept Confidential Information for the sole purpose of effecting the permitted uses of the Company Software as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Adventure Studios Global Limited in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Adventure Studios Global Limited that may be difficult to ascertain. Accordingly, you agree that we will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies we may have.

7

Precautions for the use of Pre-Release Software

7.1

You understand that to participate in seeds of Pre-Release Software you may need to remove certain pre-loaded, commercial software from your computer in order to load the Pre-Release Software. You further understand that once you load such Pre-Release Software onto your computer, you may be unable to revert back to the pre-loaded, commercial release of the software you were using prior to loading the Pre-Release Software or any earlier release of the Pre-Release Software. In addition, applications and services you have installed or been using may be unable to run or function in the same manner because of your use of the Pre-Release Software. YOU ACKNOWLEDGE THAT BY INSTALLING SUCH PRE-RELEASE SOFTWARE ON YOUR COMPUTERS, THESE COMPUTERS MAY NOT BE CAPABLE OF BEING RESTORED TO THEIR ORIGINAL CONDITION AND THAT APPLICATIONS AND SERVICES MAY BE AFFECTED BY YOUR USE OF PRE-RELEASE SOFTWARE. FURTHER, YOU UNDERSTAND THAT DATA (INCLUDING DOCUMENTS) FROM SUCH APPLICATIONS OR SERVICES THAT YOU CREATE OR CHANGE WHILE USING THE PRE-RELEASE SOFTWARE MAY BE INCAPABLE OF BEING RESTORED OR RECOVERED. Adventure Studios Global Limited SHALL NOT BE RESPONSIBLE FOR ANY COSTS, EXPENSES OR OTHER LIABILITIES YOU MAY INCUR AS A RESULT OF YOUR TESTING, INSTALLATION OR USE OF PRE-RELEASE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE OR DATA OR ANY LOSS OF DATA OR INFORMATION ARISING FROM YOUR USE OF SUCH PRE-RELEASE SOFTWARE. In addition, the Pre-Release Software may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your computer and from peripherals (including, without limitation, servers and printers) connected thereto.

7.2

Adventure Studios Global Limited strongly encourages you to back-up all data and information on your computer and any peripherals prior to your participation in such seeds. The Pre-Release Software is not intended for use, and should not be used, in production or business-critical systems.

8

Consent to Collection and Use of Data

8.1

Pre-Release Versions of Pixel Pets (temporary placeholder name). In order to test and improve our products and services, and unless you opt out as set forth below, you acknowledge that Adventure Studios Global Limited and its subsidiaries and agents will be collecting, using, storing, processing and analysing (collectively, "Collecting") diagnostic, technical, usage, and/or related information from your computers that are running pre-release versions of Pixel Pets (temporary placeholder name) as part of this Beta Program. This information will be Collected in a form that does not personally identify you and may be Collected from such computers at any time. The information that would be Collected includes, but is not limited to, general diagnostic and usage data, various unique system or hardware identifiers, information about your computer, system and application software, and peripherals, and, if Location Services is enabled, the real-time geographic location of your computer and location search queries. By installing or using pre-release versions of Pixel Pets (temporary placeholder name) on your computer, you acknowledge and agree that Adventure Studios Global Limited and its subsidiaries and agents have your permission to Collect all such information and use it as set forth above.  If you do not agree to the foregoing, you may opt out by changing your Diagnostics & Usage and/or Location Services settings in System Preferences on your computer.

8.2

Other Pre-Release Software and services. In order to test and improve our products and services, and only if you choose to install or use other Pre-Release Software or services provided as part of the Beta Program, you acknowledge that Adventure Studios Global Limited and its subsidiaries and agents may be Collecting diagnostic, technical, usage and related information from other Pre-Release Software or services and from your computer, peripherals or other hardware that uses such Pre-Release Software. You should carefully review the release notes and other information disclosed to you by Adventure Studios Global Limited as part of the Beta Program prior to choosing whether or not to install or use any such other Pre-Release Software or services. By installing or using such other Pre-Release Software or services, you acknowledge and agree that Adventure Studios Global Limited and its subsidiaries and agents have your permission to Collect any and all such information and use it as set forth above.

8.3

System Logs and Diagnostic Files. In addition, as part of your participation in the Beta Program, you will have the option of manually attaching and/or using Adventure Studios Global Limited's Seeding Tools to attach detailed hardware and/or system diagnostic files (e.g., kernel logs, hang logs, crash logs, spin logs, install logs, application logs, etc.) from your computer ("System Logs") to send to Adventure Studios Global Limited. Such System Logs may include personally identifiable information, including, without limitation, your account name, information regarding your contacts, calendar events, and email correspondence. Providing these System Logs is voluntary, but if you do provide them to us, then you acknowledge that we may use them for Adventure Studios Global Limited's diagnostic purposes and to improve the Beta Program and Adventure Studios Global Limited's products and services.

9

No Support and Maintenance

During your participation in the Beta Program or in a particular seed, we are not obligated to provide you with any maintenance, technical or other support for the Pre-Release Software. If, at Adventure Studios Global Limited's option, such support is provided, it will be provided in addition to your normal warranty coverage for your computer. You agree to abide by any support rules and policies that Adventure Studios Global Limited provides to you in order to receive such support. You acknowledge that Adventure Studios Global Limited has no express or implied obligation to announce or make available a commercial version of the Pre-Release Software to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Pre-Release Software licensed hereunder.

10

Discussion Forums

As part of the Beta Program, you may have the ability to participate in discussion forums provided by Adventure Studios Global Limited about the Pre-Release Software and other Confidential Information that we may make available to you. For purposes of such discussion forums, Adventure Studios Global Limited is providing a limited exception to Clause 6 by allowing you to discuss certain Confidential Information received by you in connection with a particular seed with other seed participants who are in the same seed as you in the designated discussion forum for such seed, and only within this discussion forum. Except for the limited purpose of discussions with other seed participants within such forums, you acknowledge and agree that this Agreement does not grant you the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Confidential Information.

11

No Warranty

11.1

The Company Software provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Company Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. You expressly acknowledge and agree that, to the extent permitted by applicable law, all use of the Company Software is at your sole risk and that the entire risk as to satisfactory quality, performance accuracy and effort is with you. Adventure Studios Global Limited IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRE-RELEASE SOFTWARE AND SEEDING TOOLS, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE.

11.2

You acknowledge that Adventure Studios Global Limited has not publicly announced the availability of the Pre-Release Software, that Adventure Studios Global Limited has not promised or guaranteed to you that such Pre-Release Software will be announced or made available to anyone in the future, and that  Adventure Studios Global Limited has no express or implied obligation to you to announce or introduce the Pre-Release Software or any similar or compatible product, or to continue to offer access to the Pre-Release Software in the future.

12

Disclaimer of Liability

YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION, OR USE OF THE PRE-RELEASE SOFTWARE AND SEEDING TOOLS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE PRE-RELEASE SOFTWARE ON YOUR COMPUTER AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL Adventure Studios Global Limited 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 PRE-RELEASE SOFTWARE ON YOUR COMPUTER AND/OR ANY PERIPHERALS CONNECTED THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR Adventure Studios Global Limited's PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Adventure Studios Global Limited'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 THOUSAND HONG KONG DOLLARS (HKD 1,000.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13

Term and Termination

This Agreement will continue in effect until terminated in accordance with Clause 13. You may terminate this Agreement or an individual seeding project at any time, for any reason, but only by returning or destroying any Confidential Information that is in your possession or control (including, without limitation, any Pre-Release Software); provided however that if you are unable to purge certain Pre-Release Software from your computer, then you agree that you will continue to hold the Pre-Release Software as Confidential Information.  We may terminate this Agreement or an individual seeding project at any time, with or without cause, immediately upon written notice to you, and may terminate this Agreement immediately for any breach of the confidentiality provisions set forth herein. Within seven (7) days of your receipt of Adventure Studios Global Limited’s termination notice, or earlier if requested by Adventure Studios Global Limited, you will return, cease all use of, and/or destroy the Pre-Release Software and all other Confidential Information as provided in this clause. Following termination of this Agreement or an individual seeding project for any reason, the restrictions of Clauses 3, 4-8, the last two sentences of Clause 9, and 11-19, inclusive, will continue to bind the parties.

14

Third-Party Software & Information

Portions of the Company Software may include third party software and other copyrighted material. Acknowledgments, licensing terms, and disclaimers for such material are contained in the Company Software, and your use of such material is governed by such respective terms. Mention of third parties and third-party products in any materials, advertising, promotions or coupons provided to Beta Program participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and  Adventure Studios Global Limited shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users. 

15

Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16

Assignment and Other Dealings

This agreement is personal to the parties and neither party shall without the prior written consent of the other party assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

17

Governing Law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region.

18

Severance

18.1

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

18.2

If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19

Entire Agreement

19.1

This Agreement, including any appendices made effective pursuant to this Agreement and any additional licenses accompanying the Company Software, constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information.

19.2

Except to the extent provided under Clause 2 above, any inconsistencies between this Agreement and any license agreement accompanying the Company Software will be governed by the license agreement accompanying.

20

Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

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