20 February, 2019
WARGAMING TEST END USER LICENSE AND NON-DISCLOSURE AGREEMENT (“AGREEMENT”)
BEFORE DOWNLOADING OR INSTALLING THIS SOFTWARE PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE TERMS AND CONDITIONS GOVERNING THE DISCLOSURE OF CERTAIN PROPRIETARY AND CONFIDENTIAL INFORMATION ("CONFIDENTIAL INFORMATION") BY WARGAMING GROUP LIMITED. (“WARGAMING”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR DOWNLOAD THE SOFTWARE OR PROMPTLY DELETE THE SOFTWARE PROGRAM.
Wargaming and the user admitted to the World of Warships on Console testing (the “Test”), hereinafter referred to as the “Tester” or “You”, collectively, the “Parties” have concluded this Agreement as follows:
1. Subject of the Agreement
The Tester has been invited to play the World of Warships on Console (the “Game”) Test. Nothing in this Agreement shall be interpreted as granting the Tester any rights or privileges of any kind with respect to the Test. The Game is provided on an "as is" "as available" basis and Wargaming makes no warranty to the Tester of any kind, express or implied.
You represent and warrant that you are eighteen (18) years old or older. You represent and warrant that you are entering into this Agreement on a completely voluntary basis with no expectation of any form of compensation whatsoever other than what is expressly provided for in this Agreement.
This pre-release version of the Game and any software programs or files that are provided to the Tester (via on-line transmission or otherwise) including to 'patch,' or 'update’ (collectively, “Software”), as well as any on-line or electronic documentation (the "Documentation"), and any and all copies and derivative works of such Software are the copyrighted work of Wargaming. All use of the Game and Software is governed by the terms of this Agreement. The Game is distributed solely for use by Testers who have received prior authorization from Wargaming for purposes of testing the Game in accordance with the terms of this Agreement. Any use, reproduction or redistribution of the Game not expressly authorized by the terms of this Agreement is expressly prohibited.
Only Testers are permitted to participate in the Test, and anyone without such authorization is not eligible to enter into this Agreement. In consideration of Wargaming’s authorization for the Tester to participate in the Test, the Tester agrees to be bound by the following terms and conditions:
The Tester undertakes not to disclose confidential information and data, gained as a result of his or her participation in the Test. In accordance with this Agreement, Wargaming provides the Tester with certain confidential information, under conditions described in this Agreement.
2. Confidential information
Confidential information is any information disclosed by Wargaming to the Tester hereunder which is of a confidential or proprietary nature, including without limitation (1) information that has actual or potential commercial value by virtue of being unknown to third parties and (2) information about Wargaming’s business, customers, clients, technologies, games, plans, methods, software and/or software code, commercial arrangements and/or commercial plans, as further explained below. Confidential information is not freely accessible on legal grounds. The holder takes all the possible measures to maintain the confidentiality of the Confidential Information, not to disclose the Confidential Information to any person or entity and to use the Confidential information solely for the purpose of providing feedback and/or advice to Wargaming. The Tester agrees protect the Confidential Information as set forth in this Section, but in any event by using at least the measures and degree of care Tester takes to protect its own confidential information. This information can include:
2.1.1. Information on the structure, type and placement of equipment and other property of Wargaming.
2.1.2. Information on the commercial communications of Wargaming.
2.2.1. Information on original management practice, planning and control systems of Wargaming
2.2.2. Information on the preparation, acceptance and implementation of certain decisions of Wargaming management regarding
2.3.3. Information on business plans of Wargaming, development plans of certain groups, sectors, departments.
2.4.1. Information on the objectives, considered issues, results, evidence of meetings, decisions, staff involved in preparations, and work.
2.5. Market (market segment)
2.5.4. Information on the original methods of sales implementation.
2.5.5. Information on the business efficiency of Wargaming.
2.5.7. Information about clients and partners
2.5.8. Information about terms of service.
2.6.1. Organized information about domestic and foreign partners, customers, contractors, suppliers, clients, consumers, associates, sponsors, brokers, and other business relations of Wargaming, as well as competitors that are not mentioned in open directories, handbooks, etc.
2.6.2. Information on schedules meetings with potential partners, suppliers, etc.
2.7.1. Information about the goals, tasks and tactics in negotiations with business partners, as well as the fact and contents of negotiations with potential counterparties.
2.7.2. Information on training and the results of negotiations with enterprise business partners
2.7.3. Information regarded as a commercial secret of the counterparties of Wargaming.
2.8.1. Conditions, texts of the agreements of intent, commercial contracts, payments and services.
2.8.2. Information on credit, payment and other liabilities of Wargaming, arising from contracts and active legislation.
2.8.3. Contents of civil contracts, signed by Wargaming, their course of action.
2.11. Techniques and technologies
2.11.1. Information on the specifics of technology
2.11.2. Information on software condition including screenshots, gameplay videos.
2.11.3. Information about the features of technologies in use and in development and usage specifics.
2.12.1. Information on order and state of commercial secrets protection.
2.12.2. Information on the order and state of security, access control, alarm system, and transportation of valuable goods.
2.12.3. Commercial secrets of partner enterprises, given in confidence to Wargaming.
2.12.4. Information about employees: home addresses, telephone numbers, places of work and phone numbers of relatives, family composition, company executives and their direct phones.
2.12.5. Information on the company staff, including their moral and business skills.
2.12.6. Information on the income of Wargaming staff.
3. Information transfer
3.1 Confidential information may be transferred to the Tester in oral, written, graphic, photo, electronic form, as well as in any other form.
3.2 Information is not confidential and the Tester has no obligations concerning this information, if it meets the following terms:
3.2.1. Information is already known to the Tester at the Effective Date of this Agreement.
3.2.2 Information is or becomes publically known due to improper, negligent or intentional actions of Wargaming but due to no fault of the Tester.
3.2.3 Information is presented by a third party on a legal basis with no restriction and breach of this Agreement.
3.2.4 Information is presented to a third party by Wargaming with no similar restrictions of the third party rights.
3.2.5 Information is independently developed by the Tester without reference to the Confidential Information, provided that neither the Tester, nor a person involved in its development had an access to confidential information.
3.2.6 Information, authorized to disclosure by a written permission of Wargaming
3.2.7 Information is disclosed to the government at the request of governmental authorities and the Tester makes every effort to make this information confidential or proprietary, or if the law requires the disclosure of such information. If the Tester receives a request form any governmental body or court of law, the Tester agrees to notify Wargaming sufficiently in advance of the due date of any such governmental request to allow Wargaming to dispute the request before the applicable governmental party.
The Tester is held liable for:
4.1. Inadvertent disclosure or use of confidential information, as against the caution taken in dealing with the own confidential information of similar importance, and continuing inadvertent disclosure or use after the revealing of the inadvertent disclosure or use of this information.
4.2 In case of infliction of losses due to disclosure of confidential information by the Tester in violation of this Agreement, the latter is held liable for full compensation of losses of Wargaming.
4.3 In case of infliction of significant damage in violation of the Agreement by the Tester, the latter is held liable in accordance with current legislation.
5. Limited Use License.
5.1 Wargaming hereby grants, and by installing the Game and Software the Tester thereby accepts, a limited, non-exclusive license and right to install and use one (1) copy of the Game and Software for the Tester’s personal use on his or her computing device or hardware which the Tester owns or is under the Tester’s personal control.
5.2 Tester accounts and privileges are non-transferable under any circumstances.
6. Personal Data
We will use some of your personal data as required for your participation in the Test. In particular, we will use your name, gamer tag and email address, which you have provided to us on this page, in order to identify you as a party to this agreement, as well as to notify you about important updates related to the Test. We will also collect information about how you play the Game, e.g., your Game statistics, technical characteristics of the device you are playing the Game with, and other data solely as may be required for us to improve the Game based on your participation in the Test. We will erase or anonymize the personal data stored about you as the Test participant, once the Test has ended, but not later than within [45 days] upon its closure. Since the functionality of the Game is in test mode, we are unable to provide any automatic tools for data export, data erasure upon your request and subscriptions' management. We can share the personal data described above with our affiliates, which may also be located outside of the European Union, if so required for the purposes of the Test. If you have any further questions about how we use your data, please contact us at email@example.com.
7. Additional Terms.
7.1 When playing the Software, the Tester may accumulate points, equipment, or other value or status indicators. This data may be reset at any time during the testing process, and it may be reset when the particular Software build, patch or update completes the testing phase.
7.2 By opting in to the Test, the Tester agrees that: (i) Testing is at his or her own risk and that the Tester knows that the Software and/or Test materials may include known or unknown bugs, (ii) any value or status indicators that the Tester achieves through game play may be erased at any time, (iii) Wargaming has no obligation to make the Software available for play without charge for any period of time, nor to make them available at all, and (iv) this Agreement will apply to the Tester’s use of the Software during the Testing phase.
7.3 No Employment. You agree that being a Tester does not constitute an employment relationship or offer of such relationship, between Wargaming and you, and that Wargaming does not and/or require you to work a certain number of hours, shifts, etc. as part of your participation in the Test and that your participation is strictly voluntary and done solely for your personal enjoyment. Wargaming expects you to only use your leisure time to participate in this program, and does not expect you to forego other activities, including gainful employment, during the time you spend participating in the Test. You may stop being a voluntary Tester at any time.
8. Enforcement of the Agreement
8.1 This Agreement enters into force at the moment of pressing by the Tester of the “Submit” button at the end of this Agreement.
8.2 Participation in the Test stipulates the acceptance of this Agreement.
8.3 Mandatory Arbitration. The Parties agree that any dispute, controversy or claim arising out of or related to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration in Nicosia, Cyprus. Arbitration shall be administered under the laws of the Republic of Cyprus in accordance with the CEDRAC rules. Any arbitral award determination shall be final and binding upon the Parties.
This agreement to arbitrate is freely negotiated between the Parties and is mutually entered into between the parties and constitutes a written agreement to arbitrate.
8.4 Waiver of Class Action and Representative Action Claims. The Parties expressly intend and agree that: (a) class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Agreement; (b) each will not assert class action or representative action claims against the other in arbitration or otherwise; and (c) the Parties shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.
8.5 Notwithstanding the foregoing, you have the right to litigate any dispute in small claims court, if all the requirements of small claims court are satisfied. Further, if the laws of your jurisdiction prohibit application of some or all of the foregoing, such provisions will not apply to you.
8.6 Remedies. The Tester acknowledges and agrees that the Tester’s breach of any provision of this Agreement and/or any unauthorized use of the Confidential Information will cause irreparable harm, damage and loss to Wargaming, and that Wargaming may seek preliminary and permanent injunctive relief against the breach or threatened breach by the Tester of this Agreement, in addition to any other remedies which may be available, including, without limitation, claim for damages.
8.7 Indemnification. At Wargaming’s request, you agree to defend, indemnify and hold harmless Wargaming, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of this Agreement or any breach of this Agreement by you. Wargaming reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.
9.1 Term. The Tester’s obligation under this Agreement shall be effective for the period of five (5) years from the date of disclosure of the Confidential Information.
9.2 Governing Law. This Agreement shall be governed as to all matters, including validity, construction and performance by and under the laws of the Republic of Cyprus.
9.3 Limited Warranty. THE GAME, SOFTWARE AND DOCUMENTATION(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, DEFECTS, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE GAME, SOFTWARE AND DOCUMENTATION(S) REMAINS WITH THE USER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9.4. Limitation of Liability. NEITHER WARGAMING, NOR ITS DIRECT OR INDIRECT PARENT, SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE GAME INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN ANY STATE STATUTE IS EXPRESSLY DISCLAIMED. FURTHER, WARGAMING SHALL NOT BE LIABLE IN ANY WAY FOR THE LOSS OR DAMAGE TO PLAYER CHARACTERS, ACCOUNTS, STATISTICS OR USER PROFILE INFORMATION STORED BY THE GAME AND/OR THE SERVICE. WARGAMING SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE INCLUDING, BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL WARGAMING BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.