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3D GAME MACHINE SOFTWARE LICENSE
PLEASE READ THIS LICENSE CAREFULLY BEFORE YOU USE "3D GAME MACHINE". BY INSTALLING OR USING "3D GAME MACHINE", YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
This document is a legal agreement between you, the "Licensee", and Virtually Unlimited, Sabeti & Laufenberg SNC. The following terms and conditions shall govern the license of "3D Game Machine" to Licensee.
1. DEFINITIONS
"Virtually Unlimited" shall mean the company "Virtually Unlimited, Sabeti & Laufenberg, SNC", registered in Geneva (Switzerland) in October 1992.
“3D Game Machine”, also referred to as "3DGM" or "the Software", shall mean the Virtually Unlimited computer program described as a Macintosh three dimensional rendering and animation software development tool.
“Manual” shall mean the 3DGM User Manual and other written information related to 3D Game Machine, whether stored on electronic media, paper or any other form. This includes "include" files and other program-related text files.
"Licensee" shall mean "you".
“3DGM Application” shall mean any computer software program written by Licensee that incorporates or uses all or any part of 3D Game Machine.
"Unlock Code" shall mean the string, made of numbers and alpha-numerical characters, which you use for decoding and installing "3D Game Machine" on your computer.
"Serial Number" shall mean the string, made of numbers and alpha-numerical characters, which you pass to "3D Game Machine" at initialization time.
2. LICENSE
Virtually Unlimited hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, non-transferable license (“this License”) to use 3DGM current version and to distribute programs developed with 3DGM.
Licensee may distribute a 3DGM Application in executable object code form (double-clickable), of type 'APPL', only. Licensee may not distribute 3DGM in any other form, including, but not limited to, shared or non-shared library, XCOFF, init, plug-in, module, or control panel. If Licensee wishes to distribute a 3DGM Application in non-double-clickable form, Licensee will need to obtain a written and signed authorization by Virtually Unlimited. Virtually Unlimited has the right to refuse such an authorization without justification.
3DGM MAY BE ACCESSED ONLY FROM WITHIN THE SAME 3DGM APPLICATION DISK FILE IT IS STORED IN. 3DGM MAY NOT BE ACCESSED FROM ANOTHER PROGRAM, BY USING CROSS-APPLICATION CALLS, INTERRUPTS, EVENTS, OR OTHER SIMILAR METHODS.
If Virtually Unlimited decides to discontinue 3DGM and completely stop its development, and if no company wishes to resume its development, 3DGM and its source code will become public domain. However, Virtually Unlimited has the right to add, modify or remove some functions or features of 3DGM or Manual without notice.
Licensee agrees that this License gives no title or rights of ownership of 3DGM or any part thereof or Manual and acknowledges that such Software and Manual is proprietary to Virtually Unlimited.
3. COPYRIGHT
3D Game Machine and Manuals are copyrighted by Virtually Unlimited with all rights reserved.
4. UNLOCK CODE
Upon delivery of 3DGM, Licensee will receive a unique, non-transferable, confidential Unlock Code. The Unlock Code is an ASCII string made of numbers and alpha-numerical characters, and will have to be entered by Licensee in order to decode and install 3DGM on Licensee's computer.
The Unlock Code is confidential and should be kept private in a safe place. The Unlock Code identifies Licensee and Licensee is responsible for preventing other people to use or learn about his Unlock Code.
The Unlock Code may be used only once, when installing 3DGM on Licensee's computer. The Unlock Code may be used again only if 3DGM is being re-installed by Licensee on the same computer.
Any installation of 3DGM without an Unlock Code, with an Unlock Code not assigned to Licensee by Virtually Unlimited, or already assigned to another Licensee is a infringement of this License and considered illegal.
5. SERIAL NUMBER
Upon delivery of 3DGM, Licensee will receive a unique, non-transferable serial number to use 3DGM. This serial number is made of numbers and alpha-numerical characters, and has to be passed by the 3DGM Application to 3DGM at initialization time.
Any use of 3DGM without a serial number, with a serial number not assigned to Licensee by Virtually Unlimited, or already assigned to another Licensee is a infringement of this License and considered illegal.
6. USE, BACK-UP AND TRANSFER
LICENSEE MAY NOT USE, COPY, MODIFY, ADAPT, TRANSFER, SUBLICENSE, RENT, LEASE, LOAN, SELL, CONVEY, TRANSLATE, REVERSE ENGINEER, CONVERT TO ANY PROGRAMMING LANGUAGE, FORMAT, DECOMPILE, DISASSEMBLE OR REDUCE TO A HUMAN-PERCEIVABLE FORM 3D GAME MACHINE, OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE.
LICENSEE MAY NOT USE, COPY, MODIFY, OR TRANSFER, SUBLICENSE, RENT, LEASE, SELL, CONVEY, OR TRANSLATE THE 3DGM MANUAL, OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE.
3DGM can be used on only one (1) single computer.
Licensee may not :
a) electronically transfer 3DGM from one computer to another over a network or communications
b) distribute copies of 3DGM or Manual to others
c) modify or translate 3DGM or Manual without prior written consent from Virtually Unlimited.
Licensee may make one (1) copy of 3DGM solely for back-up purposes. Licensee must reproduce and include the Virtually Unlimited copyright notice on the back-up copy. All other copies of 3DGM and Manual are in violation of this License and considered illegal.
7. TERM AND TERMINATION
This License remains in effect provided appropriate fees are paid in full and Licensee has complied with all terms and conditions of this agreement.
In the event that license fees are not paid within sixty (60) days of the date due, this agreement will be terminated, and Licensee will be required to comply with the conditions set forth in this section.
Virtually Unlimited will terminate this license if Licensee fails to comply with any term or condition of this License. Licensee agrees upon such termination to promptly comply with all terms and conditions herein.
On termination, Licensee agrees to cease further distribution of any and all 3DGM Applications, and retrieve any copies previously distributed for which royalties have not been paid pursuant to section 9.
Licensee must prevent said retrieved or previously distributed copies from being used or installed until such time as Licensee receives written approval from Virtually Unlimited to continue distribution of 3DGM Application.
Licensee must also return to Virtually Unlimited the 3D Game Machine program disks, if any, and Manuals, and destroy all copies made thereof.
Royalty fees for a commercial 3DGM Application are to be 3% of revenues (sales receipts) received from the sale of said 3DGM Application. The sales receipts will have to be in accordance with the price tag of 3DGM Application. If 3DGM Application is part of a commercial package, the total price of the package will be used for computing royalties. These revenues shall also include any upgrades or updates to the 3DGM Application. Royalty fees are not required for non-commercial (free) distribution of demo and Freeware programs.
LICENSEE MAY ONLY MAKE DIRECT SALES, FROM LICENSEE TO END-USER. In case of non-direct sales, including, but not limited to, sales to an editor and/or distributor, we request that Licensee complies with the "Zero Royalty Program" described in section 10.
ALL REVENUE RECEIVED BY LICENSEE, LICENSEE’S COMPANY, OR LICENSEE’S ASSOCIATES, IN CONNECTION WITH SALES OF 3DGM APPLICATION, OR ANY OTHER APPLICATION THAT MAKES USE OF 3DGM, FALL UNDER THIS AGREEMENT.
These fees shall be paid quarterly (every 3 months) within 30 days of the end of each quarter. Licensee will have to send us a signed copy of his quarterly sales report at the end of each quarter. License fees not paid on time shall accrue interest at a rate of 5% per annum, from the date due.
Prior to distributing a commercial 3DGM Application, Licensee will need to submit a short description of said 3DGM Application to Virtually Unlimited. Virtually Unlimited shall not disclose to any third party any information related to the development of said 3DGM Application without prior consent of Licensee.
Licensee may distribute in unrestricted quantities the 3DGM Application that incorporates or uses 3DGM, or any part of 3DGM, provided that all applicable Royalty Fees have been paid in full to Virtually Unlimited.
Licensee shall maintain books and records in connection with activity under this Agreement for the term of this Agreement and for at least one year after the date this Agreement terminates or expires.
10. ZERO ROYALTY PROGRAM
Upon request, Licensee may obtain the right to pay a flat fee instead of quarterly royalties. The Zero Royalty Program will have to be negotiated separately and confirmed by Virtually Unlimited and Licensee in writing. Virtually Unlimited has the right to refuse such an agreement without justification.
11. INTERNAL CORPORATE DISTRIBUTION AGREEMENT
If 3DGM is used for developing one or more 3DGM Applications used internally, runtime fees for each 3DGM Application shall be $50 per User, minimum $200 per 3DGM Application.
“User” is defined as a CPU on which the 3DGM Application is installed or is accessible. If the 3DGM Application is installed on a shared or server machine, the total number of Users shall be the total number of CPUs that have access to the shared or server machine, whether directly, indirectly or remotely. These fees are due within 30 days of installation of each additional User.
12. RIGHT TO AUDIT
After reasonable notice to Licensee, Virtually Unlimited may at its expense authorize an independent accounting firm to audit sales volume, or number of users, of products that use 3DGM, to ensure compliance with the terms of this Agreement.
Any such audit shall be conducted during regular business hours at Licensee's offices and shall not interfere unreasonably with Licensee's business activities. Audits shall be made no more than once annually for each License.
If the audit reveals that Licensee’s revenues related to 3DGM are more than reported, by at least 10%, a fine shall be assessed in the amount of 50% of any unpaid royalties, and will be deemed payable immediately.
13. UPGRADES
Licensee will receive free minor upgrades of the purchased version of 3DGM, until the next major upgrade, non-inclusively.
"Minor upgrade" shall mean a version number of 3DGM with the same digit before the first dot and a greater digit after the first dot; versions 1.1 and 1.2.1 are considered minor upgrades to version 1.0.
"Major upgrade" shall mean a version number of 3DGM with a higher digit before the first dot, regardless of the digit(s) after it; version 2.0 is considered a major upgrade to version 1.5.3.
Virtually Unlimited has the right to number its versions and decide which upgrade is considered "minor" or "major" without justification.
Upgrades will be priced by Virtually Unlimited and their prices are subject to change without notice.
14. SUPPORT
Though Virtually Unlimited has no obligation whatsoever for maintaining or helping Licensee use 3DGM, Virtually Unlimited does at its discretion presently provide Support.
Virtually Unlimited has the right to deny Support to Licensee without justification if the request is considered inappropriate or for whatever reason Virtually Unlimited chooses.
15. RESTRICTIONS
This License does not give the right to Licensee to use 3DGM for designing, developing, fabricating, or testing of military-related material or applications, whether directly or indirectly.
Licensee may not use 3DGM to develop a free or commercial product that substantially competes with Virtually Unlimited's software product line.
16. LIMITED WARRANTY OF 3D GAME MACHINE
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF 3DGM IS AT YOUR SOLE RISK. 3DGM IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND VIRTUALLY UNLIMITED EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, THAT IS MADE BY VIRTUALLY UNLIMITED ON 3D GAME MACHINE. VIRTUALLY UNLIMITED DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN 3DGM WILL MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN 3DGM WILL BE CORRECTED. FURTHERMORE, VIRTUALLY UNLIMITED DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF 3DGM OR MANUAL IN TERMS OF THEIR CORRECTNESS, ACCURACY, PERFORMANCE, NONINFRINGEMENT, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VIRTUALLY UNLIMITED, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY, OR SUPPORT OF 3DGM OR MANUAL, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD 3D GAME MACHINE OR MANUAL PROVE DEFECTIVE, YOU (AND NOT VIRTUALLY UNLIMITED) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, CORRECTION, UPDATE OR RECALL OF ANY 3DGM APPLICATION DISTRIBUTED. THE LICENSE FEES FOR 3DGM REFLECT THIS ALLOCATION OF RISK.
Without limiting the foregoing, in no event shall Virtually Unlimited be liable for incidental or consequential damages resulting from the use, sale or distribution of 3DGM Application by Licensee or others, whether under theory of warranty, tort, or products liability.
17. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCE SHALL VIRTUALLY UNLIMITED, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY, OR SUPPORT OF 3DGM OR MANUAL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE, THE RESULTS OF USE, OR INABILITY TO USE 3DGM OR MANUAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) EVEN IF VIRTUALLY UNLIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
18. CONTROLLING LAW
This License shall be governed and construed in accordance with the laws of Switzerland and the State of Geneva, as applied to agreements entered into and to be performed entirely within Switzerland between Swiss residents.
If for any reason a court of competent jurisdiction finds any provision of this License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force an effect.
The parties designate the Court of Geneva and Federal Court of Switzerland, as the appropriate Forum for all disputes.
19. COMPLETE AGREEMENT
This License constitutes the entire agreement between the parties with respect to the use of 3DGM and Manual. LICENSEE AGREES THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN VIRTUALLY UNLIMITED AND LICENSEE AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS PROPOSALS, UNDERSTANDINGS OR AGREEMENTS, WRITTEN OR ORAL, AND ANY OTHER COMMUNICATIONS BETWEEN PARTIES RELATING TO THE SUBJECT MATTER OF THIS LICENSE.
No amendment, waiver, or modification of this License will be binding unless in writing and signed by a duly authorized representative of Virtually Unlimited.
20. ACKNOWLEDGMENT
BY INSTALLING OR USING "3D GAME MACHINE", LICENSEE ACKNOWLEDGES THAT HE HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.
