Industries Circle Membership

Photon Industries Circle Membership Agreement

1. Photon Industries Circle
Under this Photon Industries Circle Membership Agreement (the “Agreement”), Exit Games, Inc. (“Exit Games”) and Customer agree on Customer’s membership in Photon Industries Circle. As a member of Photon Industries Circle, Customer during Customer’s membership benefits from access to certain Exit Games Photon software products or additional licenses to such products (each a “Licensed Product”) for use with and development of Customer’s software applications (each a “Customer Application”). The Licensed Products made accessible to Customer depend on the membership level Customer selects when accepting this Agreement (the “Membership Level”).   


2. Ordering
The specifics of each Membership Level will be set forth in (i) an order document (the "Order Schedule") that references this Agreement and is executed by both parties or (ii) in an online order form that Exit Games provides on its website(s) and that Customer submits to Exit Games (the “Digital Order”; an Order Schedule or a Digital Order are hereinafter also referred to as an “Order”). The parties' execution of an Order Schedule or the submission of a Digital Order constitutes a binding commitment by Customer to the membership level described in the Order pursuant to the terms and conditions of this Agreement and such Order. All Orders are incorporated herein by this reference.


3. Additional Terms
Customer acknowledges and agrees that Photon Industries Circle Membership is also governed by the agreements listed and linked to below, as well as all other applicable terms, conditions, limitations, and requirements on the Exit Games website, all of which (as changed over time) are incorporated into this Agreement. If Customer signs up for Photon Industries Circle Membership, Customer also accepts these terms, conditions, limitations and requirements (each “Reference Terms”).
- “License Agreement for Exit Games Photon” (https://dashboard.photonengine.com/en-US/Account/LicenseTerms)

In the event of a conflict between this Agreement and any Reference Terms, this Agreement shall control in relation to the Licensed Products made accessible hereunder. 


4. Licensing, Restrictions. and Samples

4.1 Licensing
Subject to the agreed Membership Level, Customer might benefit from additional licenses for CCU and/or Customer Applications to be used for and with certain Licensed Products subject to the applicable Reference Terms. “CCU” means the maximum number of individual, concurrently active users that may be connected to a Licensed Product through one dedicated Customer Application according to the applicable Reference Terms. 

4.2 Restrictions
Customer’s use of the Licensed Products made accessible hereunder is subject to the applicable license restrictions set out in the applicable Reference Terms.

4.3 Samples
Subject to the terms of this Agreement and throughout the applicable Membership Term (as defined below), Exit Games may, from time to time and in its sole discretion, provide Customer with a small software and/or software development kit or template in object and/or source code to support, demonstrate and illustrate the use of the Licensed Products (each a “Sample”). A Sample may contain sounds, animation, graphics, textures, 3d models, fonts or other assets that are not included in the source code of the Sample (each an “Asset”). Exit Games hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license to install, modify, use the Samples to internally design, develop, and test a Licensed Product and to implement the modified or unmodified Samples but in any case without any Assets. Upon termination or expiration of this Agreement, the Customer shall immediately cease (i) modifying and/or using the Samples and/or (ii) further modifying and/or using modified Samples in any way, including as part of the Licensed Products. Customer acknowledges and agrees that Customer’s use or modification of a Sample might be subject to additional restrictions. Exit Games will make available such restrictions in the download section of the respective Sample, for example by providing a .txt file that sets outs the applicable restrictions. 

5. Disclaimer
THE LICENSED PRODUCTS AND ANY SAMPLES ARE MADE ACCESSIBLE “AS-IS” AND EXIT GAMES EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. EXIT GAMES DOES NOT WARRANT THAT CUSTOMER’S ACCESS TO THE LICENSED PRODUCTS OR ANY SAMPLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. 


6. LIMITATIONS OF LIABILITY

6.1 EXCLUSION OF DAMAGES
IN NO EVENT SHALL EXIT GAMES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOSS OF GOODWILL, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE LICENSED PRODUCTS OR ANY SAMPLES, INCLUDING, WITHOUT LIMITATION, ANY FAILURE OF ESSENTIAL PURPOSE, EVEN IF EXIT GAMES HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE.

6.2 CAP ON MONETARY LIABILITY
IN NO EVENT SHALL EXIT GAMES’ COLLECTIVE AGGREGATE LIABILITY TO THE CUSTOMER (OR TO ANY OTHER PERSON OR ENTITY) IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER EVER EXCEED TEN THOUSAND DOLLARS (US-$10,000.00) UNDER ANY LEGAL OR EQUITABLE THEORY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE.


7. Fees and Payment

7.1 Fees
Subject to the terms and conditions below, the fees for the Customer’s membership in Photon Industries Circle (collectively, the “Fees”) will be set forth on the Order. Unless otherwise explicitly agreed between the parties or set forth in an Order, Customer will pay to Exit Games, the Fees monthly in advance. 

7.2 Payments
Payments shall be made via credit card, PayPal or other payment mechanism accepted by Exit Games. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Exit Games’ income). Late payments will bear interest at the lesser of one and one-half percent (1.5%) per month, compounded monthly (equivalent to 19.56% per annum) or the highest rate permitted by law, until paid in full. Each party is responsible for its own expenses under this Agreement.

7.3 Suspension of Membership
Exit Games shall have the right to suspend Customer’s Photon Industries Circle membership immediately if any Fees are not paid by Customer more than five (5) calendar days after the date payment is required pursuant to Section 7.1. above, and such suspension shall remain in effect until all such Fees are paid in full.

7.4 Publicity
During the Membership Term, Customer hereby agrees that Exit Games shall have the right, but not the obligation, to include Customer’s name and logo as a customer that is member of the Photon Industries Circle on Exit Games’ websites and in other materials promoting the Photon Industries Circle.


8. Term; Termination

8.1 Term
The term of this Agreement will commence on the date that both parties have executed the Order Schedule (unless a later commencement date is expressly set forth on such Order Schedule) or Exit Games accepted Customer’s Digital Order and shall continue until the end of the then current calendar month (the “Membership Initial Term”), unless terminated earlier in accordance with the provisions of this Agreement. Upon the expiration of the Membership Initial Term, Customer’s Photon Industries Circle membership will automatically renew for one (1) calendar month (this period together with the Membership Initial Term, the "Membership Term"), and at the same Fees applicable during, unless either party terminates the Agreement with at least 5 calendar days prior notice to the end of a calendar month (termination via email is deemed sufficient for this purpose).

8.2 Termination
(a) Termination for Breach.  This Agreement may be terminated by either party if the other party materially breaches this Agreement and does not cure the breach within 10 calendar days after receiving written notice thereof from the non-breaching party. Additionally, this Agreement may be terminated by Exit Games in the event that Customer fails to pay applicable Fees when due.
(b) Termination for Insolvency. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (i) all rights licensed and obligations required hereunder shall immediately cease (including Customer’s right to access and use the Licensed Products and/or any modified and/or unmodified Samples); provided that Sections 3.0, 4.0, 7.0 and 9.0 shall survive termination, (ii) Customer shall delete all copies of Offline Server Versions (as defined in the License Agreement for Exit Games Photon), unless Customer may use such copies according to a separate license agreement with Exit Games, and (iii) Customer shall pay to Exit Games any outstanding Fees that have accrued prior to the date of termination. 


9. Miscellaneous
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Customer will not assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without Exit Games’ prior written consent.  Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.  All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of New York, without regard to New York conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in New York.  Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Exit Games. In the event of a conflict between any agreement, exhibit, purchase order, online terms, or related document submitted by or on behalf of Customer to Exit Games, this Agreement shall control and take precedence and shall only be modified to the extent a later writing explicitly references it including the numbered and titled section to be amended and superseded. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters.