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ELECTRONIC ARTS INC.

PRE-RELEASE COPY CONFIDENTIALITY AGREEMENT

EA and Tester agree as follows:

1. Review of Pre-Release Software.

This Agreement shall apply to all information concerning the Game which may be disclosed or provided by EA to Tester at any time, whether or not owned or developed by EA, whether or not copyrighted or patented, including, without limitation, information disclosed to EA by any third party which information EA is obligated to treat as confidential or proprietary information, provided that it is clearly marked by legends as "confidential," proprietary or with words of similar significance or if disclosed orally is identified as confidential upon disclosure or which one would reasonably believe to be confidential (the "Proprietary Materials"). The Proprietary Materials include, but are not limited to, the Pre-Release Copy. Nothing in this Agreement shall be construed as granting Tester any rights of any kind with respect to the Proprietary Materials, other than the privilege to review, subject to the terms and conditions set forth herein, such information solely for the purpose of Tester's Commercial Beta Evaluation. The privilege granted above is personal, non-transferable, and non-sublicensable.

Tester agrees to provide feedback and suggestions to EA regarding his/her experiences using the Pre-Release Copy, as reasonably requested by EA, or as otherwise voluntarily provided by Tester (collectively, the "Feedback"). All rights, title and interests in and to the Feedback shall, as between EA and Tester, be and remain the sole property of EA. Tester hereby grants EA the complete, perpetual, and irrevocable right to quote, re-post, use, reproduce, modify, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform any Feedback which is provided by Tester hereunder in any form, anywhere, with or without attribution to Tester in EA's discretion, and without any notice or compensation to Tester of any kind. Tester represents and warrants that he/she has right to enter into this Agreement and that any Feedback which is provided hereunder is original work made solely by Tester and does not infringe any third party intellectual property rights. If Tester is to provide any services to EA or license any technology to EA, a separate agreement signed by both parties will be required.

2. Covenants of Tester.

2.1 Tester represents and warrants that:
  1. he/she will not copy or reproduce the Pre-Release Copy or any of the other Proprietary Materials;

  2. he/she will not use the Pre-Release Copy or any of the other Proprietary Materials other than for the Commercial Beta Evaluation and in strict compliance with the provisions of this Agreement;

  3. he/she will use his/her best efforts to safeguard the Pre-Release Copy and other Proprietary Materials and to prevent unauthorized access to, reproduction of, disclosure of, and/or unauthorized use of, the Pre-Release Copy and other Proprietary Materials;

  4. he/she will keep all copies of the Pre-Release Copy on a computer that is password protected;

  5. he/she will not store the Pre-Release Copy on a central server or other shared computer;

  6. he/she will carry out the Commercial Beta Evaluation personally and will not provide access to the Pre-Release Copy and other Proprietary Materials to any other person;

  7. in the event of any breach of any of Tester's covenants herein that compromises the security or confidentiality of the Pre-Release Copy, he/she will immediately report any such breach to EA in writing, along with the details of such breach;

  8. he/she will not decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Pre-Release Copy, or any part thereof, to the maximum extent this restriction is permitted under applicable law; and

  9. he/she will not alter, modify or create a derivative work of any Pre-Release Copy in any manner, nor remove any copyright notice, trademark notice, and/or other proprietary legend or label set forth on or contained within the Pre-Release Copy.

At such time as Tester returns a particular Pre-Release Copy to EA (where applicable), Tester will have no further obligations under this Agreement with respect to that Pre-Release Copy. At such time as the product contained on any particular Pre-Release Copy is released into general distribution by EA or is otherwise disclosed to the public through no fault of Tester, then Tester will have no further obligation under this Agreement to maintain the secrecy of the product resident on that particular Pre-Release Copy, though Tester will still be bound to all of the other obligations and restrictions set forth in this Agreement with respect to Tester's handling and return of such Pre-Release Copy.

2.2 Tester Acknowledgements
  1. Tester acknowledges participation as a tester of the Game is purely voluntary and that no compensation of any kind will be provided as a result of participation as a volunteer tester. Tester may stop being a volunteer tester of the Game at any time.

  2. Tester acknowledges that the Pre-Release Copy is beta-version software that is not complete, has not been fully-tested by EA, and is not ready for sale to the general public. The Pre-Release Copy may have bugs and other problems that make it unplayable, and that could potentially cause damage to Tester's computer equipment. Tester agrees that, to the maximum extent permitted by applicable law, EA and its affiliates disclaims all liability to you for any problems you have regarding the Pre-Release Copy or your participation in the Commercial Beta Evaluation, or for any damage that the Pre-Release Copy may cause.

3. Ownership of Intellectual Property Rights.

For the avoidance of doubt, as between EA and Tester, EA owns all rights, title and interest in and to the Proprietary Materials (including the Pre-Release Copy), any and all modifications, enhancements and derivative works thereof, and all Intellectual Property Rights (as defined herein) embodied therein and/or related thereto as may be further set out in any Terms of Service EUALA, Digital Service Agreement or other agreement issue by EA to the Tester. As used in this Agreement, "Intellectual Property Rights" means patent rights, copyright (including, for example, rights in audiovisual works and moral rights), trade secrets, know-how, trademarks, service marks, trade names, rights in registrations and applications for any of those rights, rights in trade dress and packaging and other intellectual property rights now known or hereafter recognized by the law of each applicable jurisdiction.

4. Public Information.

Notwithstanding anything to the contrary contained herein, Tester shall be under no obligation to maintain the confidentiality of any Proprietary Materials which Tester can demonstrate: (i) were known by Tester prior to the disclosure thereof by EA; (ii) properly came into the possession of Tester from a third party which, to the best of Tester's knowledge, was not under any obligation to maintain the confidentiality of such Proprietary Materials; (iii) has become part of the public domain through no act or fault on the part of Tester; (iv) is independently developed by Tester; or (v) has been approved for release by written authorization of EA.

5. No Removal of Notices.

Tester represents and warrants that he/she will not alter, modify or create a derivative work of the Pre-Release Copy in any manner, nor remove any copyright notice, trademark notice, and/or other proprietary legend or label set forth on or contained within the Pre-Release Copy or any of the other Proprietary Materials.

6. Indemnification.

Tester will indemnify and hold EA harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of Tester's covenants, representations, warranties or obligations herein, provided, however, that this indemnification obligation shall not be conditioned on any demonstration of the truth of the facts or circumstances alleged by the third party

7. Equitable Relief.

Tester acknowledges and agrees that the Pre-Release Copy and other Proprietary Materials constitute valuable trade secrets of EA, and that any unauthorized reproduction, use, and/or disclosure of such materials by Tester shall cause EA irreparable harm for which its remedies at law would be inadequate. Tester agrees that EA shall be entitled, in addition to any other remedies available to it at law or in equity, to seek injunctive relief to prevent the breach or threatened breach of any of Tester's obligations hereunder.

8. Termination of Commercial Beta Evaluation Period.

Tester acknowledges that any Pre-Release Copy furnished by EA under this Agreement is being loaned by EA to Tester for a limited period of time commencing upon the execution of this Agreement by both parties and continuing in full force and effect until a date to be designated by EA (the "Term"). EA may discontinue the testing program at any time for any reason. At the end of such Term, and at any time upon EA's written request, Tester shall immediately return the Pre-Release Copy (if applicable) and all of the other Proprietary Materials to EA. However, for the avoidance of doubt, any payments made by Tester during the Term shall not be nullified due to the Term ending and any Battlefunds purchased shall remain in Tester's account. Furthermore, any Valor Points achieved during the Term shall remain valid and shall not be wiped from the Tester's account due to the Term ending. Sections 2 through 13 herein shall survive any termination of this Agreement

9. Governing Law and Venue.

The validity, construction, and performance of this Agreement shall be governed by the substantive laws of the State of California and of the United States of America, excluding that body of law relating to choice of law. Any action or proceeding brought to enforce the terms of this Agreement shall be brought in the County of San Mateo, State of California (if under State law) or the Northern District of California (if under Federal law), and the parties hereby consent to the exclusive jurisdiction and venue of such courts. In the event of any legal proceeding between the parties arising from this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its reasonable and documented costs and expenses incurred in any such proceeding, including, without limitation, its reasonable fees for attorneys and expert witnesses.

10. Assignment.

Tester may not assign this Agreement, nor may any of Tester's rights hereunder be assigned or otherwise transferred to any third party, including by operation of law, without EA's prior written consent. Any attempted or purported assignment or other such transfer by Tester to any third party without such consent having first been obtained shall be void. Subject to the foregoing, this Agreement shall be binding upon the parties and shall inure to the benefit of their respective successors and permitted assigns.

11. Warranty Disclaimer.

TESTER ACKNOWLEDGES THAT THE PRE-RELEASE COPY IS PROVIDED FOR EVALUATION PURPOSES ONLY AND IS DELIVERED "AS IS." EA DOES NOT WARRANT THAT THE OPERATION OF THE PRE-RELEASE COPY WILL BE ERROR-FREE, THAT THE PRE-RELEASE COPY WILL EVER BE COMPLETED OR COMMERCIALLY AVAILABLE, OR THAT THE PRE-RELEASE COPY WILL OPERATE IN COMBINATION WITH OTHER HARDWARE OR SOFTWARE. EA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE.

12. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EA SHALL NOT BE LIABLE TO TESTER OR ANY OTHER ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING WITH RESPECT TO THIS AGREEMENT OR THE PRE-RELEASE COPY OR OTHER PROPRIETARY MATERIALS PROVIDED HEREUNDER, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT TESTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL EA'S AGGREGATE LIABILITY TO TESTER UNDER THIS AGREEMENT EXCEED FIFTY US DOLLARS (US$50.00).

13. General Provisions.

Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall remain in full force and effect. No modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. No waiver of any of the provisions of this Agreement shall be binding unless signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement shall not constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall any waiver constitute a continuing waiver.

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So, ist ja nicht mehr up to date, deshalb entpinne ich den Beitrag mal.

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