Tombstone Engine

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Tombstone Engine License Agreement

Version 1.0

I. DEFINITIONS

1. “Tombstone Engine” is a software product licensed by Terathon Software LLC and includes all related source files, object code, tools, and documentation. The term “Tombstone Engine” shall also specify any software, in source or object format, resulting from any modification of the Tombstone Engine from its original form.

2. “Licensor” is Terathon Software LLC, a California limited liability company.

3. “Licensee” is an individual or company who becomes a party to this agreement and consequently gains access to source code and other materials composing the Tombstone Engine.

4. “Work” is a product or any part of a product created by a Licensee using the Tombstone Engine, any component of the Tombstone Engine, or any modified version of the Tombstone Engine. Such types of products include, but are not limited to, games, simulations, and scientific applications.

5. “Desktop Platform” shall mean a run-time execution environment provided by any version or derivative of the following operating systems: Microsoft Windows, Apple Mac OS X, or a desktop distribution of Linux.

6. “Mobile Platform” shall mean a run-time execution environment provided by any version or derivative of the Apple iOS operating system.

II. LICENSE

1. This agreement grants a single Licensee a non-exclusive license to use the Tombstone Engine for the purposes of developing Works that run on Desktop Platforms and Mobile Platforms. The license is granted for the version of the Tombstone Engine available at the time this agreement is entered. The license granted by this agreement does not expire.

2. The Licensor agrees to provide to the Licensee all of the relevant materials, including source code, object code, tools, and documentation, that collectively make up the version of the Tombstone Engine that is designed to function on Desktop Platforms and Mobile Platforms. All such materials shall be provided by means of electronic download. The choice of which particular versions of Desktop Platforms and Mobile Platforms are supported by the Tombstone Engine is exclusively that of the Licensor.

3. The Licensor agrees to make available for download to the Licensee, at times determined solely by the Licensor, any minor updates of the Tombstone Engine designed for Desktop Platforms and Mobile Platforms that are generally released for the purpose of fixing bugs or providing small enhancements relative to a particular major version.

4. The Licensee may create an unlimited number of Works for Desktop Platforms and Mobile Platforms using the Tombstone Engine.

5. Any Works created by the Licensee, with the following exceptions, may be publicly or privately sold at any price.

(a) No Work shall be distributed to a third party if the Work functions on a platform not included in the Desktop Platforms or Mobile Platforms. Any Work that incorporates a modification or port of the Tombstone Engine so as to cause it to function under an operating system for which the Tombstone Engine has not been specifically licensed under this agreement can only be used internally by the Licensee.

(b) No Work shall be distributed to a third party if the Work is intended to function as a game engine in conjunction with additional software. In particular and without limitation, no part of the Tombstone Engine may be incorporated into another commercial game engine or made to work with another commercial game engine as a plugin or add-on.

6. Works may be distributed by physical or electronic means. No Work shall include any source code or documentation belonging to the Tombstone Engine or any modification thereof.

7. The license provided by this agreement may not be transferred to a third party under any circumstances. In the event of the demise or dissolution of the Licensee, this agreement shall be terminated immediately.

III. FEES AND REQUIREMENTS

1. The Licensee agrees to pay to the Licensor a one-time, non-refundable fee of 495.00 USD, less any applicable discount.

2. The Licensee may not sell, rent, lease, sublicense, or redistribute the Tombstone Engine or any augmentation or modification thereof to a third party. In particular, there are no circumstances under which the Licensee may distribute Tombstone Engine source code, or any part thereof, to a third party. The Licensee is permitted to distribute only the binary (object code) form of the Tombstone Engine to third parties when it is necessary as part of a Work for the Desktop Platforms or Mobile Platforms.

3. The Licensee shall not remove or alter any notice of copyright, trademark, patent, or confidentiality from the Tombstone Engine.

4. For each Work developed by the Licensee using the Tombstone Engine and distributed by any means, the Tombstone Engine must be clearly identified in the credits as the engine technology upon which the Work is built.

5. The Licensee agrees to inform the Licensor of changes to his contact information, including his mailing address and email address, during any time period for which the Tombstone Engine is in active use by the Licensee. Such information shall be communicated to the Licensor by entering it in the form provided to Licensees on the Tombstone Engine website (tombstoneengine.com).

IV. NON-DISCLOSURE

1. The Licensee agrees to conscientiously and carefully protect the confidentiality of the materials composing the Tombstone Engine. The Licensee acknowledges and understands that all information pertaining to the internal functioning of the Tombstone Engine, including, but not limited to, source code, software design, algorithmic processes, mathematical formulas, security measures, and performance data, is confidential. The Licensee may not, through any means, disclose to any third party any confidential information without the express written permission of the Licensor.

2. The Licensee acknowledges that the unauthorized disclosure of confidential information, whether intentional or accidental, may result in significant and irreparable damages to the Licensor, and that it may be difficult to assign a monetary value to such damages. Therefore, in the event of a breach of this section, the Licensor shall be entitled, without waiving any other rights or remedies, to such injunction or equitable relief as may be deemed proper by a court of competent jurisdiction.

3. The Licensee shall not be liable for disclosure of confidential information that (a) was publicly available through the intent of the Licensor at the time it was communicated to the Licensee, (b) was made publicly available by the Licensor at some time before disclosure by the Licensee, or (c) is required to be disclosed in response to a valid order by a court or other governmental body, provided that the Licensee provides the Licensor with at least ten (10) days prior written notice of such disclosure in order to permit the Licensor to seek confidential treatment of such information.

V. TERMINATION

1. The Licensor may, without waiving any rights, terminate this agreement under any of the following conditions.

(a) The Licensee breaches any of the terms of this agreement.

(b) The Licensee distributes the Tombstone Engine to any person who has not entered into this license agreement.

(c) The Licensee misrepresents its identity or intentions in connection with this agreement.

(d) The Licensee attempts to circumvent or undermine any security mechanisms implemented on the Tombstone Engine website (tombstoneengine.com).

(e) The Licensee provides information to others that could facilitate illegal copying of the Tombstone Engine.

2. In the event of termination of this agreement, the Licensor shall notify the Licensee by email that the license has been terminated. Upon receipt of such notification, the Licensee is required to immediately destroy all copies of the Tombstone Engine in its possession and certify, by email, to the Licensor that its obligations under this section have been carried out.

3. In the event of termination of this agreement, the Licensor shall not owe a refund to the Licensee.

VI. DISCLAIMER

1. THE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE LICENSOR MAKES NO WARRANTY REGARDING THE PRODUCT, EXPRESS OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS AND THE LICENSEE HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.

2. The Licensee hereby acknowledges and agrees that the Licensor (including parents, subsidiaries, affiliates, officers, employees, agents, directors, and independent contractors of the Licensor) has not made or granted any express or implied warranties concerning the Product.

3. (Limitation of Damages) The Licensor shall not be liable for any indirect, lost profits, consequential, exemplary, incidental, or punitive damages under this agreement regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether the Licensor has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. The liability of the Licensor for any reason and for any cause of action whatsoever, whether in contract or in tort, including negligence, in connection with this agreement and the Product shall be limited to the amount of money paid by the Licensee to the Licensor under Article III.

4. (Force Majeure) The Licensor shall not be liable for any failure to perform its obligations under this agreement because of circumstances beyond the control of the Licensor, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war; any acts or omissions of any government, governmental authority, or declarations of governments; transportation delays, power failure, computer failure, telecommunications failure, electronic mail failure, failure of the Licensee to cooperate with the reasonable requests of the Licensor, misuse of the product by the Licensee, breach of this agreement by the Licensee, and any events reasonably beyond the control of the Licensor.

VII. INDEMNIFICATION

The Licensee shall defend, indemnify, and hold harmless the Licensor and their officers, directors, employees, and agents from and against any expense, cost, loss, or liability resulting from any claims related to use of the Product and any updates, enhancements, or modifications thereto, (including, without limitation, any claim for breach of warranty, libel, slander, and invasion of privacy) and any liability, demands, claims, or actions arising from the acts (or any failure to act) of the Licensee hereunder and any breach by the Licensee of the obligations of the Licensee hereunder.

VIII. MISCELLANEOUS

1. In the case that the Licensee is a natural person, the Licensee warrants that he/she is eligible to enter into this agreement and that he/she is at least eighteen (18) years of age.

2. This agreement may not be modified unless agreed in writing and signed by both the Licensor and Licensee.

3. This agreement contains the entire understanding of the parties and supersedes any and all previous verbal and written agreements between the parties concerning licensing of the Product.

4. (Severability) If a provision of this License is rendered invalid, the remaining provisions shall remain in full force and effect.

5. This agreement shall be governed by the laws of the State of California, United States of America, without regard to any rules of conflict and choice of laws that require the application of laws of another jurisdiction, and venue shall be Roseville, California.

6. Waiver of breach of this agreement shall not constitute waiver of another breach. Failing to enforce a provision of this agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waivers of a provision of this agreement shall not be binding and shall be void unless such waiver is in writing and signed by the party waiving such provision.

7. It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating a partnership, joint venture, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.

8. Each party hereby represents and warrants that all representations, recitals, statements, and information provided to each other under this agreement are true, correct, and accurate to the best of their knowledge.

9. The terms and conditions of Articles I, IV, V, VI, VII, and VIII of this agreement shall survive termination and cancellation of this agreement.