Updated December 16, 2019

HAVOK LIMITED TERM LICENSE AGREEMENT

READ THE TERMS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE INSTALLING THE ACCOMPANYING SOFTWARE.

The Havok software (the “Software”) and the accompanying documentation (the “Documentation”) supplied (collectively, the “Product”) are protected copyright laws, and the copyrights and other intellectual property rights are owned by Microsoft Corporation, One Microsoft Way, Redmond, WA 98052(“Microsoft”). The Product is copyrighted and licensed (not sold). By installing the Software, you (“Licensee”) are accepting and agreeing to the terms of this Agreement.

1. OWNERSHIP. The Software (including any header files and demonstration code that may be included) and Documentation, and all associated copyrights and other intellectual property rights, are the property of Microsoft. Licensee acquires no title, right or interest in the Product other than the license granted herein by Microsoft; all rights other than those specifically granted herein are reserved by Microsoft.

2. PROPRIETARY NOTICES. Licensee shall not remove any trademark, trade name, copyright notice or other proprietary notice from the Software or Documentation, and shall be responsible for the conservation of same on all copies of the Software and Documentation. Licensee may not reproduce any portion of the Software or Documentation, except as permitted by this Agreement.

3. LICENSE.

   3.1 Limited License. Subject to the terms and conditions of this Agreement and the Unity Asset Store terms, and payment of the appropriate license fees (if any), Microsoft hereby grants to Licensee a nonexclusive, non-transferable, , limited license to install and use the Product at Licensee’s premises only for purposes of developing a commercial application that uses and incorporates the Havok Physics Engine, and to distribute the Software solely to the limited extent it is embedded in such application.

   3.2 Source Code. The source code of the Software (other than included header files and demonstration code) and design documentation are confidential and proprietary information and trade secrets of Microsoft, its suppliers and/or licensors.

4. COPY RESTRICTIONS AND OTHER RESTRICTIONS.

   4.1 Copies. Licensee may make such reasonable number of copies of the Product as are necessary to exercise Licensee’s rights under this Agreement, provided that such copies shall include all applicable copyright, trademark and other proprietary notices of Microsoft in accordance with Section 2 above.

   4.2 Disclosure Restrictions. Except as specifically permitted under section 3.1, Licensee will not display or disclose the Product to third parties, rent, lease, loan, sublicense, modify, adapt, translate, reverse engineer, disassemble or decompile the Product or any portion thereof, or create derivative works of the Product even for purposes of interoperability or error correction. If Licensee desires information relating to the Software for purposes of achieving interoperability with independently created computer software, Licensee may make a written request to Microsoft for such information. Licensee shall promptly report to Microsoft any actual or suspected violation of this section and shall take further steps as may reasonably be requested by Microsoft to prevent or remedy any such violation.

5. FONTS. The “VDB MDL2 Assets” fonts or glyphs are property of Microsoft and may be used solely within the Visual Debugger application included with the Software. This does not restrict Licensee from modifying, extending or distributing the Visual Debugger in accordance with the standard terms and conditions of this Agreement.

6. U.S. GOVERNMENT END-USERS. US Government Rights. The technical data and computer software covered by this license is a “Commercial Item,” as such term is defined by the FAR 2.101 (48 C.F.R. 2.101) and is “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. This commercial computer software and related documentation is provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

7. SUPPORT. Support services for the Software are available from Microsoft on a good faith basis for the term of this Agreement and may be requested by Licensee via the Havok support portal.

8. DURATION. This Agreement is effective from the date this Software is installed by Licensee and shall remain in force for so long as Licensee continues to comply with this Agreement and pay applicable license fees, unless earlier terminated as provided for herein. For the avoidance of doubt, Microsoft is under no obligation to continue offering the Software beyond the scope of any one payment period.

9. REPLACEMENT AND EXCLUSION OF WARRANTIES.

   9.1 Warranty. Should the Product prove defective, the Licensee’s sole remedy shall be to request a new copy of the Product from Microsoft that may be granted or withheld by Microsoft at its sole discretion.

   9.2 Disclaimer. MICROSOFT SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCT IS PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE SUITABILITY, QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH LICENSEE AND NOT WITH MICROSOFT. This disclaimer of warranty constitutes an essential part of this Agreement.
   SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

10. LIMITATION OF LIABILITY. IN NO EVENT SHALL MICROSOFT, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA, GOODWILL OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF FORESEEABLE OR IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF MICROSOFT IS HELD LIABLE UNDER THIS AGREEMENT, MICROSOFT’S, ITS SUPPLIERS’ AND LICENSORS’ LIABILITY SHALL BE LIMITED TO THE PRICE PAID BY THE LICENSEE FOR THE PRODUCT SUPPLIED.

11. ASSIGNMENT. This Agreement and any rights granted hereunder may not be assigned, sub-licensed or otherwise transferred by Licensee to any third party without the prior written consent of Microsoft. Microsoft may assign or transfer its rights and obligations under this Agreement at any time without notice to or the consent of Licensee.

12. TERMINATION.

    12.1 Termination. This Agreement and the license granted hereunder will terminate immediately if Licensee breaches any of the provisions of this Agreement. Microsoft may, but is not required to, provide written notice of such termination.

    12.2 Effects of Termination. Upon termination of this Agreement and of the license granted hereunder, Licensee shall cease any further use of the Product, and must return to Microsoft or destroy, as requested by Microsoft, all copies of the Software and Documentation in any form in Licensee’s possession or control.

    12.3 Survival. The provisions of Sections 1, 2, 8, 9, and 11-16 and the definitions of this Agreement shall survive the termination of this Agreement (for any reason).

13. AMENDMENT; WAIVER. No modification or waiver of any provision of this Agreement shall be binding on either party unless specifically agreed upon in a writing signed by both parties. Any failure or delay by Microsoft to exercise or enforce any of the rights or remedies granted hereunder will not operate as a waiver thereof. No waiver by Microsoft of any breach of this Agreement will operate as a waiver of any other or subsequent breach.

14. SEVERABILITY. If any provision of this Agreement is found invalid or unenforceable, that provision will be reformed, construed and enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.

15. LAW AND JURISDICTION. If Licensee is based in the United States of America, this Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws provisions. If Licensee is based outside the United States of America, this License Agreement is governed by the laws of the Republic of Ireland.

16. EXPORT ADMINISTRATION ACT. Licensee will not import, export or re-export the Product (or portion thereof) to or from any country in contravention of any applicable import or export laws. Microsoft will provide reasonable product information to assist Licensee in discharging its obligations under this section.

17. ENTIRE AGREEMENT. Licensee has read this Agreement and agrees to be bound by its terms, and further agrees that, unless the parties have entered into a signed development license agreement relating to the subject matter hereof (a “Signed Agreement”), this Agreement, together with the Unity Asset Store terms, constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. If, however, the parties have entered into a Signed Agreement, to the extent of any inconsistency, such Signed Agreement shall take precedence over the terms of this Agreement. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.

18. THIRD PARTY NOTICES. All trademarks used or referred to in the Microsoft products are property of their respective owners.