This is the BatteryTech EULA for licensees. It applies to all software provided upon license purchase. Obtaining the BatteryTech source code or distributing a binary application utilizing BatteryTech software in any form without a license is a violation of the BatteryTech license.
BatteryTech End User License Agreement
IMPORTANT: BatteryTech End User License Agreement (hereafter "Agreement") is a legal agreement between you (hereafter "Licensee") and Battery Powered Games LLC. (hereafter "Vendor") for BatteryTech software, which includes computer software and may include "online" or electronic documentation (collectively, the "Software"). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this AGREEMENT. If you do not agree to the terms of this AGREEMENT, then do not install or use the SOFTWARE. In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1.1. "Documentation" means any help files, instruction manuals, operating instructions, user manuals, and specifications which may be provided by Vendor which describe the use of the Software and which either accompany the Software or are provided to You at any time.
1.2. "Software" means the Batterytech software and may include online or electronic documentation.
1.3. “Third Party Component” will mean any component of the Software, as listed in Vendor’s Documentation, provided by a third party vendor to Vendor and utilized as a component of the Software.
1.4. "Batterytech Licensee." will mean individuals, natural or fictional, that are licensees of Batterytech software from Battery Powered Games LLC. To determine an individual's licensee status, please email email@example.com.
1.5. "Source Code" means the C, C++, Objective C and Java source files provided as part of the Software.
1.6. “Custom Run-Time” means Source Code compiled to a binary form.
1.7. “Redistributable Files” means the generated source code files compiled into a binary form.
1.8. “End User Product” means a Custom Run Time combining the Batterytech Software and the software projects created by Licensee and distributed to any third party other than a Batterytech Software Licensee.
2.1. Delivery. Delivery of the Software (“Delivery”) will be deemed to have taken place when Vendor makes the Software available for download and the Vendor has notified you that the Software is available.
2.2. Acceptance. Any productive use by Licensee in a business environment constitutes acceptance of the Software.
3.1. Grant of License. Subject to the terms and conditions of this Agreement, upon Purchase and Delivery, Vendor grants Licensee and Licensee accepts a perpetual (unless terminated as expressly provided for below), royalty-free, worldwide, non-exclusive, non-transferable (except as expressly provided for below) license to install and use the Software.
3.2. You may view, modify and compile the Source Code to create a Custom Run-Time. You are granted a non-exclusive, royalty-free right to make copies of the Redistributable Files, and distribute those copies to your End Users; provided that:
(i) you only distribute the Redistributable Files in conjunction with, and as part of your End User Product which adds significant and primary functionality to the Redistributable Files;
(ii) you ensure all copyright notices are retained; and
(iii) you indemnify, hold harmless, and defend Battery Powered Games LLC from and against any claims or lawsuits, including attorney’s fees, that arise as a result from the use or distribution of your End User Product.
3.3. Distribution of Software to Batterytech Licensee. You may distribute the Software in binary or source code format to other Batterytech Licensee provided that prior to distribution, you confirms Batterytech Software Licensee status by contacting Vendor at firstname.lastname@example.org. Failure to contact Vendor to confirm Batterytech Software Licensee status prior to distributing the Software in source code format is grounds for Termination, See Section 11.2.2.
3.4. Third Party Components. Any Third Party Component used in or with such additional Vendor software may be licensed you subject to its different or additional terms and conditions.
4. License Restrictions.
4.1 License Restrictions: You agree not to:
(i) sell, lease, license or sub-license the Software or the Documentation;
(ii) distribute the software in source code form to a party that is a not a Software Licensee;
(iii) use the Software to develop an End User Product having the same primary function as the Software or
(iv) use, copy, exploit, or permit use of the Software except as expressly authorized in this Agreement.
5. Ownership. This Agreement grants a license only and transfers to you no ownership interest. Vendor reserves all rights not expressly granted.
6. No Support. Battery Powered Games LLC has no obligation to provide support services for the Software.
7. Warranty Exclusion and Limitations
7.1. Warranty Exclusion. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, VENDOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT. VENDOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCPRIPTION ON THE FACE HEREOF.
7.2. Limitation of Liability. In no event will Vendor be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover or indirect, special, incidental or consequential damages even if Vendor has been advised of the possibility of such damages. Vendor will not be liable for any damages caused by delay in delivery or furnishing the Software or services. Vendor's liability under this Agreement for damages of any kind will not, in any event, exceed the License Fees paid by Licensee to Vendor under this Agreement.
7.3. Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
8.1 “Confidential Information” means non-public information, technical data or know- how of a party and/or its Subsidiaries, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. The parties agree that Vendor’s Confidential Information includes this Agreement and its terms, the Documentation, binary copies of the Software, source code relating to the Software, and any other proprietary information supplied to Licensee by Vendor, or by Licensee to Vendor and marked as "confidential information" or the like.
Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order.
8.2 Neither party will use the other party’s Confidential Information during the term of this Agreement except as reasonably required for the performance of this Agreement. In addition, the confidentiality obligations set forth in this Section 11 will survive for five (5) years after the termination or expiration of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
8.3 Injunctive Relief. In the event of actual or threatened breach of the provisions of Section 11, the non-breaching party will have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of
9. Verification of Proper Use ; Audit
9.1. Vendor by its employees or agents may audit, with thirty (30) days' prior written notice, Licensee's available records related to the use of the Software, to verify that Licensee's use of the Software is in accordance to the constraints of this Agreement. Vendor will bear the expense of an audit with the exception of instances where the Licensee is found, through such an audit, to be materially in violation of this Agreement, in which case, Licensee will reimburse Vendor for the time, travel and material costs and fees reasonably associated with the audit. Audits will be conducted during regular business hours at Licensee's facilities and will not unreasonably interfere with Licensee's business. Audits will be conducted no more than once in any twelve-month period. The audit and its results will be subject to the restrictions of this Agreement regarding Confidential Information.
10. Term and Termination
10.1. Term. This Agreement will take effect on the Effective Date and will remain in force until terminated in accordance with this Agreement.
10.2. Termination. This Agreement is terminated as elsewhere provided in the Agreement or as follows:
10.2.1. Termination without Cause. Licensee may terminate this Agreement upon thirty (30) days' prior written notice to Vendor, with or without cause.
10.2.2. Termination with Cause. Either party may terminate this Agreement and its license grants by written notice upon the occurrence of any of the following events: (i) in the event the other party materially fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after receiving written notice of the breach; or (ii) in the event the other party (A) terminates or suspends its business, (B) becomes subject to any bankruptcy or insolvency proceeding under Federal or state law, (C) becomes insolvent or subject to control by a trustee, receiver or similar authority, or (D) has wound up or liquidated, voluntarily or otherwise.
10.3. Effect of Termination. All licenses terminate upon termination of this Agreement. Termination does not entitle Licensee to any refund or return of payment except as expressly stated in this Agreement. Within fourteen (14) days after the date of termination or discontinuance of this Agreement, Licensee shall erase or destroy all copies of the Software and the Documentation and all Confidential Information in its possession. Upon request, Licensee shall furnish Vendor with a certificate signed by an executive officer of Licensee verifying that the same has been done. The following provisions will survive termination: 5 (Ownership), 7 (Warranty Exclusions and Limitations), 8 (Confidentiality), 9 (Verification Audit), 10.3 (Effect of Termination) and 11 (Miscellaneous).
11.1. Notice. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, (c) sent by overnight air courier, or (d) transmitted by facsimile, in each case properly posted to the appropriate address set forth below. Either party may change its address by notice to the other party given in accordance with this Section. Notices are effective on receipt.
11.2. Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded.
11.3. Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.4. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.5. Standard Terms of Licensee. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Licensee may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Vendor to object to such terms, provisions or conditions.
11.6. Amendments to This Agreement. This Agreement may not be amended, except by a writing signed by both parties.
11.7. Vendor's Prior Consent. Unless expressly provided otherwise in this Agreement, any prior consent of Vendor that is required before Licensee may take an action may be granted or withheld in Vendor's sole and absolute discretion.
11.8. Export of Software. Licensee may not export or re-export this Software without compliance with applicable US export control laws.
11.9. Governing Law and Jurisdiction. This Agreement will be governed by the laws of Oregon. Each party hereby agrees that the exclusive jurisdiction and venue for any action arising out of or related to this Agreement or its subject matter will lie exclusively in the state and federal courts located in Oregon. You further agree that Vendor shall be allowed to apply for injunctive remedies (or any equivalent legal relief in any jurisdiction). This Agreement is not subject to the United Nations Convention of Contracts for the International Sale of Goods.
11.10. Public Announcements. Licensee acknowledges that Vendor may desire to use its name and logo in its web site, press releases, product brochures and financial reports indicating that Licensee is a customer of Vendor, and Licensee agrees that Vendor may use its name and logo in such a manner. Licensee reserves the right to review any use of its name or logo and to grant or withhold permission, provided that permission will not reasonably be withheld..
11.11. Entire Agreement. This Agreement (including any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
11.12. Third Party Components. BatteryTech incorporates modified Box2D software library, which is distributed under the zlib license. BatteryTech incorporates modified vmath software library, which is distributed under the BSD license.