This Agreement constitutes the complete agreement between User and ZWORKS with regard to User’s access, download, and/or use of Content except in the case User has a version of the Agreement signed by both parties, in which case the signed agreement will supersede this Agreement. EXCEPT FOR ANY SIGNED AGREEMENT BETWEEN ZWORKS AND USER, THIS AGREEMENT SUPERSEDES AND REPLACES ANY OTHER AGREEMENT THAT WAS OR WILL BE PRESENTED AT THE TIME OF CONTENT INSTALLATION.
The online ZWORKS store offers for sale a license to Content owned or licensed by ZWORKS and/or a license to Content owned or licensed by third-party published artists (“PA”). In this Agreement, “ZWORKS Content” shall refer to Content owned solely by ZWORKS or to libraries licensed by ZWORKS; “PA Content” shall refer to Content owned solely by a third-party published artist or to libraries licensed to such third-party published artists; and “Content” shall refer to both ZWORKS Content and PA Content.
1.0 General License Agreement.
A. CONTENT LICENSE. ZWORKS grants to User and User hereby accepts, subject to the limitations and obligations of this Agreement, a personal, non-exclusive, non-transferable license to use the Content, duly obtained by payment of all applicable license fees, as provided in this Agreement.
B. LICENSE FEES. User agrees to pay ZWORKS, prior to or concurrent with delivery of the Content, the full license fee for use of the Content. User agrees to pay ZWORKS any and all applicable taxes that are levied in conjunction with the purchase of the license for the Content whenever ZWORKS must collect and/or pay such taxes from or on behalf of User. Furthermore, User agrees to pay ZWORKS all costs, expenses, and attorney’s fees expended by ZWORKS in the collection of the license fees and any applicable taxes, whether by filing a lawsuit or through arbitration.
C. TITLE AND OWNERSHIP. The Content contains copyrighted and/or proprietary information protected by the laws of the United States and/or international laws and treaties. ZWORKS and its library licensors retain all rights in, title to, and ownership of the ZWORKS Content. The applicable third-party published artists and their library licensors retain all rights in, title to, and ownership of the PA Content. ZWORKS gives no rights or warranties with regard to the use of any objects, names, trademarks, service marks, or works of authorship depicted in any Content and User is solely responsible for separately obtaining all such necessary rights or consents that may be required for any particular use of objects, names, trademarks, service marks or works of authorship.
D. RESTRICTIONS ON COPYING. The Content is provided for User’sexclusive use. User does not have the right to provide the Content to others in any form or on any media except as set forth in this Agreement. The Content may be copied in whole or in part for User’s exclusive use. Specifically, User may copy the Content onto the storage device of an unlimited number of computers owned or controlled by User. The Content is for User’s exclusive use and no other individual or entity. Each individual must obtain his or her own license to use the Content.
THREE DIMENSIONAL WORKS. ZWORKS wishes to encourage the expansion of the catalog of Content available to its users. Accordingly, User may access, use, copy, and modify the Content to create one or more derived or additional three-dimensional works provided that:
1. any such derived or additional three-dimensional works are designed to require or encourage the use of Content available through the online ZWORKS store either by (i) requiring the use of such Content to function, or (ii) allowing only limited function when not used in conjunction with Content from the online ZWORKS store; and
2. upon receipt of a written request from ZWORKS, User will immediately cease any and all distribution of the derived or additional three-dimensional works User has created from the Content, if ZWORKS has determined, in its sole discretion, that (i) such additional or derived work is substantially similar to or is a clone of existing Content; or (ii) such additional or derived work fails to require or encourage the use of Content available through the online ZWORKS store as described above.
The creation of three-dimensional physical images (3D-print, molded copy, CNC-routed copy, and the like) of Content or any three-dimensional art derived from the Content is permitted only by User’s purchase from ZWORKS, via the User’s online ZWORKS store account, of permission to deliver User’s derived works (art), including necessary Content, to an entity that creates three-dimensional images in a physical medium. User may then deliver User’s art in file format to that third party to have three-dimensional physical images printed or created, up to the limitations set forth in the online ZWORKS Store as delineated on the purchase page associated with the permission purchased. These limitations govern (i) personal and/or commercial use of the three-dimensional physical or printed images; and (ii) the quantity of three dimensional physical or printed images allowed.
F. OTHER RESTRICTIONS. This Agreement is User’s proof of license to exercise the rights granted herein and may be printed and retained by User. User shall not give, sell, rent, lease, sublicense, or otherwise transfer or distribute any Content on a temporary or permanent basis without the prior written consent of ZWORKS. User may not reverse engineer, de-compile, disassemble, or create derivative works from the Content except as set forth in Section E above.
G. PROTECTION AND SECURITY. User agrees that the Content is the property of and proprietary to ZWORKS and its licensors, and further agrees to protect the Content and all parts thereof from unauthorized disclosure and use by User’s agents, employees, associates, family members, customers, or any other third party. User shall be exclusively responsible to ensure the selection, supervision, management, control, and use of the Content conforms to all terms of this Agreement.
H. EXPORT RESTRICTIONS. The Content may be subject to the export controls of the United States Departments of State and Commerce and User agrees to fully comply with all applicable United States export regulations governing export, destination, ultimate end user, and other restrictions relating to the Content.
I. UNITED STATES GOVERNMENT RESTRICTIONS RIGHTS. If User is part of any agency, department, or other entity of the United States Government (the “Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Content is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Content is a “commercial item” and “commercial computer software”. In accordance with such provisions, any use of the Content by the Government shall be governed solely by the terms of this Agreement.
J. PATENT COPYRIGHT, AND TRADE SECRET INDEMNITY. User agrees to indemnify ZWORKS and hold ZWORKS harmless against all liability resulting from or related to any claim that (i) any content or work created by User, or (ii) User’s use of any Content, infringes any third-party patent right, copyright or other intellectual property right, or misappropriates, or misuses any trade secret or other proprietary right, or any portion thereof, of any third party.
K. INFRINGEMENT WARRANTY. ZWORKS warrants to the User that, to the best of its knowledge, the digital data comprising the ZWORKS Content developed and owned by ZWORKS, does not infringe the rights, including patent, copyright and trade secret rights, of any third party, nor was such digital data unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that ZWORKS makes no representation or warranty with respect to infringement of any third party’s rights in any image, trademarks, works of authorship or object depicted by such Content or in any Content developed by any of ZWORKS’s licensors.
L. LIMITED WARRANTY. ZWORKS warrants to the User that, to the best of its knowledge, the digital data comprising the ZWORKS Content developed and owned by ZWORKS, does not infringe the rights, including patent, copyright and trade secret rights, of any third party, nor was such digital data unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that ZWORKS makes no representation or warranty with respect to infringement of any third party’s rights in any image, trademarks, works of authorship or object depicted by such Content or in any Content developed by any of ZWORKS’s licensors.
M. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE CONTENT AND ALL RELATED DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, AND ZWORKS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. IN NO EVENT SHALL ZWORKS OR ITS DEALERS, DISTRIBUTORS, OFFICERS, AGENTS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR OTHER LEGAL OR EQUITABLE GROUNDS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONTENT, EVEN IF ZWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL ZWORKS’ S CUMULATIVE LIABILITY HEREUNDER EXCEED THE LICENSE FEES PAID BY USER TO ZWORKS FOR LICENSING THE CONTENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO USER.
N. NO LIABILITY FOR HARDWARE. User assumes complete responsibility for all hardware used in conjunction with the Content. ZWORKS shall not be responsible in any way for the non-performance or malfunction of any hardware.
O. REMEDIES. a. Injunctive Remedies. The remedies provided herein shall not be deemed exclusive, but shall be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any remedy herein provided or otherwise available to ZWORKS shall impair or effect ZWORKS’s right to exercise the same. An extension of indulgence or forbearance (which must be in writing) shall not otherwise alter or effect ZWORKS’s rights or obligations nor be deemed to be a waiver thereof. The parties hereto agree that breach of any provisions of non-disclosure, secrecy, confidentiality, copying, use, protection, and security in this Agreement by User will cause immediate and irreparable damage and injury to ZWORKS. Each of the parties confirms that damages at law may be an inadequate remedy for breach or threatened breach of any such provisions. The parties agree that in such event ZWORKS shall be entitled by right to an injunction restraining the User from violating any of said provisions. User hereby acknowledges that ZWORKS has disclosed or will disclose to User valuable proprietary data set products, which are new and unique and give ZWORKS a competitive advantage in the marketplace; that ZWORKS intends to use such information to expand its business throughout the world; and that a violation of any of the provisions of this Agreement is material and important and ZWORKS shall, in addition to all other rights and remedies available hereunder, at law or otherwise, be entitled to a temporary restraining order and an injunction to be issued by any court of competent jurisdiction enjoining and restraining User from committing any violation of said provisions, and User shall consent to the issuance of such injunction. User acknowledges that the remedies provided for in this Agreement are not injurious to or violative of any public interest or policy, and will not create a hardship greater than is necessary to protect the interests of ZWORKS.
b. Arbitration Remedies. Any dispute arising out of or relating to this Agreement, or a breach thereof, shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. Any such arbitration shall take place exclusively in Salt Lake City, Utah and the language of the arbitration shall be English. The arbitration shall be conducted by a single arbitrator and the decision of the arbitrator shall be final, conclusive and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. ZWORKS and User shall each pay one-half of the costs and expenses of any arbitration, and the substantially non-prevailing party, as determined by outcome of the arbitration, shall be liable for both parties’ attorneys’ fees and costs. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive or other equitable relief without breach of this arbitration provision.
P. GENERAL PROVISIONS.
. Costs and Expenses of Enforcement. In the event of the failure of either party hereto to comply with any provisions of this Agreement, the defaulting party shall pay any and all costs and expenses, including reasonable attorneys’ fees arising out of or resulting from such default (including any incurred in connection with any appeal), incurred by the injured party in enforcing its rights and remedies, whether such right or remedy is pursued by filing a lawsuit or otherwise.
a. Governing Law. This Agreement and the relationship of ZWORKS and User is governed by the laws of the State of Utah, without regard to its conflict of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
b. Further Information. Should User have any questions concerning any of the provisions of this Agreement, or if User desires to contact ZWORKS, please write:
ZWORKS Productions, Inc., 23435 P.O.box Jeddah, Saudi Arabia
. If User needs technical support for a ZWORKS product, please call (966) 565187917. ZWORKS’s technical support hours are 9:00 a.m. to 5:00 p.m. M.S.T.
c. Trademark and Copyright. All ZWORKS products are trademarks or registered trademarks of ZWORKS Productions, Inc. All other brand and product names are trademarks or registered trademarks of their respective holders.
d. Severability. If any part of this Agreement is found to be unenforceable, the other provisions shall remain fully valid and enforceable. It is the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by law.
e. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by ZWORKS without restriction.
f. Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or User’s use of the Content must be filed within one (1) year after such claim or cause of action arose or be forever barred.
• A single licensed copy of the ZWORKS Content is required for each Academic Effort (educational project, classroom instruction, demonstration, etc.) regardless of the number of computer systems or users required to achieve the Academic Effort; however, at the end of each Academic Effort (project, classroom instruction, demonstration, etc.) the ZWORKS Content must be uninstalled from all computer systems used in conjunction with the Academic Effort. The ZWORKS Content may be re-used (re-installed) for a subsequent Academic Effort provided it was uninstalled from all systems used in the previous Academic Effort.
• No commercial use of any kind can be made with the resulting work product from such Academic Efforts by any person or entity. All resulting work product must remain solely educational or academic and all copies of the work product, electronic or otherwise, must remain solely with the applicable academic institution.
3.0 ZWORKS Commercial Real-time Addendum
The terms of this addendum 3.0 are in force only when User has purchased one of the following products from the online ZWORKS store:
• Indie Game Developer License (sku: 12113)
• Commercial Game Developer License (sku: 12479)
• RawArt Commercial Game Developer License (sku: 12618)
The terms of this addendum 3.0 apply to all products the User has purchased via his/her online ZWORKS store account that can be identified in the online ZWORKS store using the following criteria:
• In the description field for the product, the ZWORKS icon appears:
• When the User moves the mouse pointer over the icon, a text box appear with the words “ZWORKS Original”
• And if User has purchased RawArt Commercial Game Developer License (sku: 12618)
• View the product page in the online ZWORKS store, under the title of the product a field appears labeled “Shop more by:” and the field must be populated with the term “RawArt” and only the term “RawArt”
All Content that can be identified according to the above criteria shall hereinafter be referred to as “CRT Content”. The terms of this addendum 3.0 do not apply to any other Content.
TWO DIMENSIONAL WORKS. Subject to the terms and conditions of this Agreement, User may (i) incorporate, copy and modify the CRT Content in the creation and presentation of two-dimensional animations and renderings which may require access to the CRT Content by the User’s customer during electronic execution of the User’s application, and (ii) incorporate two dimensional images (including two dimensional images that simulate motion of three dimensional objects) derived by User from the CRT Content in User’s other two-dimensional works, and (iii) publish, market, distribute, transfer, sell or sublicense such two-dimensional animations, renderings and other works; provided that User may not in any case: publish, market, distribute, transfer, sell or sublicense any renderings, animations, software applications, data or any other product from which any CRT Content, or any part thereof, or any substantially similar version of the CRT Content can be separately exported, extracted, or de-compiled into any re-distributable form or format. All other rights with respect to the CRT Content and its use are reserved by ZWORKS and its licensors. User warrants and is responsible to ensure that the CRT Content used in User’s applications are not available to end users in their native formats and that every effort is made to protect the CRT Content from theft or copyright infringement by employing technology, asset protection, encryption or any other resources at User’s disposal.
THREE DIMENSIONAL WORKS. ZWORKS wishes to encourage the expansion of the catalog of Content available to its users. Accordingly, User may access, use, copy, and modify the Content to create one or more derived or additional three-dimensional works provided that:
1. any such derived or additional three-dimensional works are designed to require or encourage the use of CRT Content available through the online ZWORKS store either by (i) requiring the use of such CRT Content to function, or (ii) allowing only limited function when not used in conjunction with CRT Content from the online ZWORKS store; and
2. upon receipt of a written request from ZWORKS, User immediately ceases any and all distribution of the art that User has created from the CRT Content, if ZWORKS has determined, in its sole discretion, that (i) such art is substantially similar to or is a clone of existing Content; or (ii) such derived or additional work fails to require the use of Content available through the online ZWORKS store.
The creation of three-dimensional physical images (3D-print, molded copy, CNC-routed copy, and the like) of Content or any three-dimensional art derived from the Content is permitted only by User’s purchase from ZWORKS, via the User’s online ZWORKS store account, of permission to deliver User’s derived works (art), including necessary Content, to an entity that creates three-dimensional images in a physical medium. User may then deliver User’s art in file format to the third-party to have physical images printed or created, up to the limitations set forth in the online ZWORKS Store delineated on the purchase page associated with the permission purchased. These limitations govern (i) personal and/or commercial use of the three-dimensional physical or printed images; and (ii) the quantity of three-dimensional printed images allowed.
B. WHILE INCORPORATION OF THE CRT CONTENT INTO USER’S APPLICATIONS IS AUTHORIZED AS SET FORTH ABOVE, USER EXPRESSLY AGREES AND ACKNOWLEDGES THAT ANY DISCRETE SALE OF CRT CONTENT SEPARATE FROM A PURCHASE OF THE USER’S APPLICATION IS ALLOWABLE ONLY WITH EXPRESS WRITTEN CONSENT OF ZWORKS. THUS, FOR EXAMPLE, WITHIN THE CONTEXT OF A GAME, THE SALE OR PURCHASE OF THE CRT CONTENT, PORTIONS THEREOF, OR EITHER TWO-DIMENSIONAL OR THREE-DIMENSIONAL DERIVATIVES THEREOF AS A SEPARATELY-PURCHASED COMMODITY OR UPGRADE USING ITEMS OF ACTUAL OR VIRTUAL WORTH IS PROHIBITED WITHOUT PRIOR WRITTEN CONSENT OF ZWORKS. WRITTEN CONSENT OF ZWORKS MAY BE SOUGHT AT THE ADDRESS SET FORTH HEREIN.
4.0 Forum and Gallery Submissions Addendum
This Forum and Gallery Submissions Addendum to License Agreement (the “Addendum”) is a legal and binding agreement between you, hereinafter also referred to as the “User”, and ZWORKS Productions, Inc., hereinafter also referred to as “ZWORKS”. User and ZWORKS are parties to that certain License Agreement accepted by User upon creating a user account at Zworks3d.com (“Agreement”). The Agreement is hereby expressly supplemented by the terms and conditions contained in this Addendum.
The Agreement, as supplemented by this Addendum, applies to and governs the rights and duties of the parties hereto with respect to images, text, video, and other materials uploaded by User, or by an authorized representative of User, to any of the websites, social media accounts, blogs or other Internet-based sites or accounts owned or operated by ZWORKS (collectively, the “Sites”). Such images, text, video, and other materials shall be collectively referred to hereinafter as the “User Creative”.
By pressing the “Accept” button below or by uploading User Creative to any of the Sites, User hereby indicates User’s complete and unconditional acceptance of all the terms and conditions of the Agreement and this Addendum. The Agreement and this Addendum together constitute the entire agreement between User and ZWORKS with respect to the User Creative.
If User does not agree to the terms of the Agreement and this Addendum, User must not select the “Accept” button below or upload any User Creative to the Sites.
1. LICENSE TO USE THE USER CREATIVE. User hereby grants to ZWORKS a worldwide, royalty-free, non-exclusive license to use the User Creative (“Right to Use”) as follows:
a. to store, backup, copy, transfer, publicly display and exhibit the User Creative, or any part of the User Creative, digitally, as well as through other mediums such as print or video, including, but not limited to, displaying the User Creative on any of the ZWORKS Sites; and
b. to modify, adapt, change or otherwise alter the User Creative, or to incorporate the User Creative into one or more combined work(s) with images, text, video, or other materials submitted by other ZWORKS users or with other elements (each a “Combined Work”).
2. OWNERSHIP. Under this Addendum, ZWORKS acquires only a right to use the User Creative pursuant to the terms hereof, and does not acquire any title or ownership of the User Creative. Except as provided in this Addendum, User retains all rights in, title to, and ownership of the User Creative. Other than its rights in the User Creative, User shall have no right, title, ownership or other interest in any Combined Work.
3. TERM AND TERMINATION OF THE RIGHT TO USE.
a. Term. The term of this Addendum shall begin on the date that any User Creative is first uploaded to any of the Sites and shall continue thereafter until ZWORKS’s Right to Use is terminated for all User Creative pursuant to Section 3.(b).
b. Termination. Either User or ZWORKS may terminate the Right to Use the User Creative, or any part thereof, at any time, with or without cause, by providing a written notice of termination to the other party (each a “Notice of Termination”), which notice shall identify the User Creative, or part thereof, for which the Right to Use shall be terminated. A termination by User of ZWORKS’s Right to Use under this Section 3.(b) shall become effective on the date that is thirty (30) days after ZWORKS’s receipt of the applicable Notice of Termination.
c. Effect of Termination. Within fourteen (14) days after termination of ZWORKS’s Right to Use under Section 3.(b), ZWORKS shall remove the applicable User Creative from the Sites, and from all Combined Works. The Agreement shall survive any expiration or termination of the Addendum in accordance with the terms of the Agreement. Sections 2, 3.(c), and 4-7 of this Addendum shall survive any termination or expiration of the Agreement, the Addendum or ZWORKS’s Right to Use.
4. REPRESENTATIONS AND WARRANTIES. User hereby represents and warrants that:
a. User has the full right and power to enter into this Amendment and to grant ZWORKS the Right to Use the User Creative pursuant to the terms and conditions of the Agreement and this Addendum.
b. User has obtained consent from all persons whose image, likeness, name, identity or other personal attributes are contained in the User Creative to use such image, likeness, name, identity or personal attributes in the User Creative.
c. The User Creative does not infringe, misappropriate or violate any rights of any third party, including, but not limited to, any trademark, copyright, patent, trade secret, right of privacy or publicity, moral rights or other similar rights.
d. The User Creative does not violate any law, statute, ordinance or regulation.
e. The User Creative is not defamatory, libelous, threatening, pornographic, obscene, harmful to minors, and does not violate child pornography or child sexual exploitation laws.
f. The User Creative does not contain any spyware, adware, ransom-ware, rootkit, key-logger, virus, trojan, worm, or other code or mechanism designed to damage, collect information from or provide unauthorized access to or control of ZWORKS’s Sites, networks or other computer systems (“ZWORKS’s Systems”), or which may restrict ZWORKS’s ability to access, monitor and control ZWORKS’s Systems.
5. INDEMNIFICATION. User shall indemnify and hold ZWORKS harmless from and against any and all claims, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any actual or alleged infringement, misappropriation or violation by the User Creative of a trademark, copyright, patent, trade secret, right of privacy or publicity, moral rights or other right of any third party; or (ii) any breach by User of the representations and warranties contained in Section 4. This Section shall survive any expiration or termination of the Agreement or this Addendum.
6. ZWORKS’S PERFORMANCE. Notwithstanding any other provision of the Agreement or this Addendum, ZWORKS makes no commitment or warranty, and has no obligation to ensure, that the User Creative, or any part thereof, will appear on the Sites. Additionally, ZWORKS has the right, in its sole discretion, at any time and without notice to User, to remove the User Creative or any part of the User Creative from the Sites.
7. NO LIABILITY FOR THIRD PARTY USE. User acknowledges and agrees that (i) the ZWORKS Sites are accessible to the public through the Internet; and (ii) ZWORKS cannot and does not warrant that the User Creative will be protected from unauthorized access, copying or downloading. Accordingly, the parties agree that ZWORKS will not be liable for any third-party use of the User Creative unless such use is expressly authorized in writing by ZWORKS.
ZWORKS PRODUCTIONS, INC. 2013.