This Agreement is between Simul Software Ltd and you.
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of the trueSKY Plugin and related content. By downloading or using the trueSKY Plugin, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, do not download or use this software or any related content.
“You,” “your” or “yourself”, whether or not capitalized in this Agreement, means you as an individual or the legal entity exercising rights under this Agreement through you.
“Simul” means Simul Software Ltd of Unit L, Baltic Creative Campus, 49 Jamaica Street, Liverpool L1 0AH, United Kingdom; a company registered in England and Wales.
“User” means an individual user who uses a valid Account to access the trueSKY Plugin downloads. If you are an individual, “User” means you. For organizations, “User” means the individual employee or agent using the Licensed Product on behalf of the organization.
“Licensee” means a third party who is licensed by Simul to use the trueSKY Plugin.
“Account” means a user account with a unique username and associated password selected by you, which enables you to download the trueSKY Plugin under the Licence.
“Content” means any code, artwork, or other content that Simul makes available to you for use with the trueSKY Code.
“Source Code” means the human readable form of a software program.
“Object Code” means the non-human readable form of a software program.
“Contribution” means any code, whether in Source Code format or Object Code format, or any other information or content, that you make available to Simul by any means. Mere use of code or content with the Licensed Product, without making that code or content available to Simul, does not constitute a Contribution.
“Distribute” means to provide or otherwise make a copy available, or to make its functionality available on a network.
“Game Engine” means Unreal Engine, Unity, Lumberyard, CryEngine or any other software product that may be integrated with the trueSKY Plugin.
“Editor Libraries” means the Object Code of the trueSKY libraries that provide editing functionality, either standalone or from within the toolset of a Game Engine.
“Plugin Libraries” means the Object Code of the trueSKY Plugin, including the Runtime Libraries and the Editor Libraries.
“trueSKY Code” means the Source Code and Object Code of the trueSKY Plugin incorporated into a game engine or game project, the Plugin Libraries and the Editor Libraries.
“Simul Trademarks” means the trademarks, service marks, trade names and logos associated with Simul, Simul’s games and other intellectual property, and the trueSKY Plugin.
“Examples” means the trueSKY Plugin content made available by Simul.
“Feedback” means any feedback or suggestions that you provide to Simul regarding the Licensed Product.
“Licensed Product” means any or all of the trueSKY Code and the Content, including as modified by you under the Licence.
“Integrated Product” means any product developed under this Agreement that is made using the Licensed Product or that combines the Licensed Product with any other software or content, regardless of how much or little of the Licensed Product is used.
“trueSKY Plugin” means the proprietary computer software program known as the trueSKY Plugin and any updates or upgrades to the program made available by Simul.
“Version” means any updated or upgraded version of the trueSKY Plugin that Simul chooses to make available to the public.
Subject to your compliance with all the terms of this Agreement, Simul grants you a non-exclusive, non-transferable, non-sublicensable (except as described in this Agreement) Licence to use the Licensed Product (the “Licence”).
The Licence becomes effective on the date you accept this Agreement or download the trueSKY Plugin. The Licence does not grant you any title or ownership in the Licensed Product.
You may only Distribute the Licensed Product as follows:
Distribution to End Users - You may Distribute the Licensed Product incorporated in Object Code format only as an inseparable part of an Integrated Product to end users who are subject to an end user Licence agreement which explicitly disclaims any representations, warranties, conditions, and liabilities related to the Licensed Product. The Integrated Product may not contain any Source Code or Editor Libraries. The total final cost of development of the Integrated Product must be less than £100000, regardless of the number of Users or Licences contributing to its development.
Distribution to other Licensees - You may Distribute trueSKY Code (including as modified by you under the Licence) in Source Code or Object Code format, or any Content, to a Licensee who has rights under its Licence to the same Version of the trueSKY Plugin that you are Distributing.
Distributions to employees and contractors - You also may Distribute Content to a Licensee who is your employee or your contractor who does not have rights under their Licence to the same Content, but only to permit that Licensee to utilize that Content in good faith to develop an Integrated Product on your behalf for Distribution by you under the Licence, and not for the purpose of Content pooling or any other Distribution or sublicensing of Content that is not permitted under this Agreement. Recipients of such a Distribution have a limited Licence to use, reproduce, display, perform, and modify that Content to develop your Product as outlined above, and for no other purpose.
You may not sublicense the Licensed Product in Source Code format. You may not sublicense the Licensed Product in Object Code format, or any Content, except to grant end users the ability to use, or to permit your publishers and distributors to market and Distribute, an Integrated Product that you Distribute as permitted in Section 1(a) above. This paragraph does not limit your rights to Distribute and sublicense Examples.
The Licensed Product is Licensed to you for use by a single User. The User may store the Licensed Product on any of the User’s computers, but the Licensed Product cannot be shared with others (including any other employees or agents) except through a permitted Distribution as described above. No more than one instance of the Licensed Product may be used for each Licence (per-seat licence).
In order to access and download the trueSKY Plugin, you must set up an Account. You may not share or allow others to use your Account. You are responsible for the security of your Account.
Under the Licence, the User may use the Licensed Product for as long as you comply with this Agreement. If you are a legal entity, references to “you” in this agreement also apply to the User in all cases. You are responsible for the User’s compliance with this Agreement.
Simul may make available future Versions of the trueSKY Plugin. Simul does not have any obligation to make new Versions of the trueSKY Plugin available, or to ensure compatibility with any specific Engine Version. Nor does Simul have any obligation to continue to make available for access or download any or all Versions of the trueSKY Plugin. However, any Versions of the trueSKY Plugin that Simul has made available to you, and for which you have accepted any applicable amendment to this Agreement as described in Section 22, are considered part of the Licensed Product and may be used under the Licence (as amended by that amendment).
Simul does not have any support obligations with respect to the Licensed Product under this Agreement. Support resources may be obtained at [email protected]
If you provide Simul with any Feedback, Simul is free to use the Feedback however it chooses. If you make any Contribution available to Simul, you hereby assign to Simul all right, title, and interest (including all copyright, patent, and other intellectual property rights) in that Contribution for all current and future methods and forms of exploitation in any country. However, you may continue to freely use any Feedback that you provide to Simul, and you may continue to use, in any manner consistent with the Licence, any Contribution that you make available to Simul.
You understand and agree that Simul is not required to make any use of any Feedback or Contribution that you provide. You agree that if Simul makes use of your Feedback or Contribution, Simul is not required to credit or compensate you for your contribution.
You represent and warrant that you have sufficient rights in any Feedback or Contribution that you provide to Simul to grant Simul and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
The Editor Libraries include Third Party Software components. If Third Party Software has separate software Licence or attribution requirements, the Licence terms or other attribution requirements for Third Party Software components can be found in the installation directory for each engine version (under the /Engine/Source/ThirdParty/Licences sub-folder). By entering into this Agreement and using Third Party Software, you are accepting the terms of those Licences. In this case, the Third Party Software terms will govern your use of the Third Party Software, and if there is inconsistency, those terms will take precedence over the terms of the Licence for the Third Party Software. You agree that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to your uses of Third Party Software.
Simul or its licensors own all title, ownership rights, and intellectual property rights in the trueSKY Plugin. You own all rights in the Products you develop under the Licence, other than the trueSKY Plugin, Third Party Software, and any Contributions. All rights granted to you under this Agreement are granted by express Licence only and not by sale, and all of those rights are limited by the terms of this Agreement. No Licence or other rights will be created hereunder by implication, estoppel, or otherwise. Any attempted sublicense under this Agreement that is not consistent with the terms of this Agreement will be null and void.
You agree to retain and reproduce in all copies of the Licensed Product the copyright, trademark, and other proprietary notices and disclaimers of Simul and third parties as they appear in the trueSKY Code and the Content.
You agree to place the following notices in the credits for any Product (replacing xxxx with the current year):
“[Product name] uses the trueSKY Plugin, Copyright 2007 – xxxx, Simul Software Ltd. All rights reserved.”
No other Licence or right in the Simul Trademarks is granted under this Agreement.
Simul may use your trademarks, service marks, trade names, and logos used with any Product, as well as publicly released screen shots and video content from the Product, in connection with Simul’s marketing, advertisement, and promotion of the trueSKY Plugin in any and all media without restriction.
Simul’s total liability under this agreement, if any, for any damages suffered by any party (including any end user), whether in contract, in tort or otherwise, shall be limited to direct damages and shall not exceed the amount of fees paid to Simul by you pursuant to this agreement. The licence fee charged under this agreement is a consideration in limiting Simul’s liability hereunder. You agree that under no circumstances shall Simul be liable for any indirect, special, incidental, exemplary, punitive or consequential damages suffered by any party resulting from or arising out of or related to this Agreement.
To the full extent permitted by law, Simul shall not be liable in any way for loss or damage of any kind resulting from the use or inability to use the Licensed Product or otherwise in connection with this Agreement. In no event will Simul be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Licensed Product, or the delay or inability to use or lack of functionality of the Licensed Product, even if Simul or its affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
You agree to indemnify and hold Simul, its officers, directors, shareholders, employees, agents, insurers, representatives, successors and assigns harmless from and against any and all Losses arising out of or in connection with or resulting directly or indirectly from (a) any claim that any aspect of the Integrated Products (excluding any claim related to the Licensed Product) infringes any patent, copyright, trade secret or other proprietary right of a third party, and (b) any and all acts and omissions by you with respect to the Licensed Product or the Integrated Products, including, without limitation, any misrepresentation (whether intentional or otherwise) of Simul or the Licensed Product, the use, operation or possession of the Licensed Product by any Licensee or the Integrated Products by any End User, the marketing or support of the Integrated Products, or any breach of this Agreement by you. You may, at your option and expense, participate in any such defence directly or through your own legal counsel.
You agree to comply with all applicable laws, regulations, rules, order and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction over this Agreement.
A. Term of the Licence. This Agreement will continue in effect unless terminated as described below.
B. Termination by Simul. Simul may terminate the Agreement by providing written notice if you materially breach any provision of this Agreement and the breach is not curable or, if it is curable, you fail to cure the breach within thirty (30) days of notice of the breach from Simul. Without limiting the foregoing, your failure to make any payment due under this Agreement or breach of any restriction under the Simul Licences constitutes a material breach of this Agreement.
C. Termination for Patent Action. The Agreement will terminate automatically as of the date you commence any claim that the Licensed Product infringes a patent, or otherwise support any claim by a third party that the Licensed Product infringes a patent.
D. Effect of Termination. Upon any termination, the Simul Licences will automatically terminate, you may no longer exercise any of the rights granted to you by the Simul Licences, and you must destroy all copies of the Licensed Product in your possession and cease distributing any Products developed under this Agreement. Within 30 days of termination, unless otherwise agreed by Simul, you must destroy all Products in your inventory.
E. No Refunds
Except to the extent required by law, all payments, fees and royalties are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
F. Surviving Provisions
Sections 5-7, 9-11, 13-15, 17-19, and 23-27 will survive termination of this Agreement.
This Agreement is construed in accordance with the laws of England and Wales. All parties attorn to the jurisdiction of the English courts.
You and Simul are independent contractors and this Agreement will not be construed to create a partnership, joint venture, agency or employment relationship between you and Simul. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party.
Simul may issue an amended Agreement at any time in its discretion by providing notice to you or by providing you with digital access to the amended Agreement when you next log in to your Account, or download additional Content or new Versions. You are not required to accept the amended Agreement. However, in order to continue accessing your Account or to download or use additional Content or new Versions, you must accept the amended Agreement. By logging in to your Account, or downloading or using additional Content or a new Version, you hereby agree to be bound by the amended Agreement then most recently issued by Simul. If you do not accept the amended Agreement, you may not log in to your Account, download or use additional Content, or download or use any new Version that is made available by Simul contemporaneously with or after the issuance of that amended Agreement. This will not terminate your Licence for the Licensed Product that you downloaded prior to the issuance of the amended Agreement. If you are an organization, acceptance of an amended Agreement by any of your Users will be binding on you.
Where this Agreement calls for notice from Simul, including written notice, Simul may provide notice to you at the email address that you provided when you registered for the Licence (or any updated email address you subsequently provide). Simul’s notices to you will be effective when they are sent to that email address.
You may not, without the prior written consent of Simul, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. You also may not transfer your Account. Simul may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement. For clarity, you are not prohibited by Simul from assigning or transferring your rights in your Product, other than the trueSKY Code, Content, and Contributions. Third Party Software assignment and transfer is governed by the terms of the applicable Licences.
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Simul relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are not enforceable in your jurisdiction, those provisions shall be enforceable to the furthest extent possible under applicable law.
Any act by Simul to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available.
Unless otherwise stated in this Agreement, if any term of this Agreement is held by a court or tribunal of competent jurisdiction to be unenforceable, the term will be enforced to the maximum extent permissible and the remaining terms of this Agreement will remain in full force and effect. You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.