HEROIC CLOUD TERMS These Heroic Cloud Terms (these "Terms") apply to your purchase and/or use of Heroic Cloud (as defined below) products and services offered by GameUp Online, Inc., d/b/a Heroic Labs, a Delaware corporation ("Heroic," "We," "Us" or "Our"). You will be referred to herein as "You" or "Customer." Before You purchase and/or use Our Heroic Cloud, you must agree to these Terms. PLEASE READ THESE TERMS CAREFULLY BEFORE PURCHASING AND/OR USING OUR HEROIC CLOUD. THESE TERMS GOVERN YOUR USE OF OUR HEROIC CLOUD AND ANY RELATED SERVICES WE PROVIDE TO YOU, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT (A "WRITTEN CONTRACT") WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO OFFER HEROIC CLOUD AND RELATED SERVICES TO YOU IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS HEREIN. BY USING OUR HEROIC CLOUD OR PURCHASING ANY SUPPORT SERVICES OR PROFESSIONAL SERVICES (AS DEFINED BELOW), OR BY CLICKING BELOW TO ACCEPT THESE TERMS, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND ACCEPT THESE TERMS, AND THAT YOU ALSO ACCEPT AND AGREE TO OUR PRIVACY POLICY (https://heroiclabs.com/privacypolicy.txt) AND SUPPORT POLICY (https://cloud.heroiclabs.com/support-terms.txt). IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND IT TO THESE TERMS (INCLUDING THE PRIVACY POLICY (https://heroiclabs.com/privacypolicy.txt), SUPPORT POLICY (https://cloud.heroiclabs.com/support-terms.txt) AND DATA PROCESSING TERMS (https://cloud.heroiclabs.com/dpa.txt)), IN WHICH CASE "YOU" OR "CUSTOMER" WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THESE TERMS (INCLUDING THE PRIVACY POLICY (https://heroiclabs.com/privacypolicy.txt), SUPPORT POLICY (https://cloud.heroiclabs.com/support-terms.txt) AND DATA PROCESSING TERMS (https://cloud.heroiclabs.com/dpa.txt)), THEN WE ARE UNWILLING TO PROVIDE OUR HEROIC CLOUD AND ANY RELATED SERVICES TO YOU, AND YOU MAY NOT PURCHASE OR USE OUR HEROIC CLOUD AND/OR RELATED SERVICES. WE MAY CHANGE THESE TERMS FROM TIME TO TIME. IF WE MAKE CHANGES, WE WILL NOTIFY YOU BY REVISING THE DATE AT THE BOTTOM OF THESE TERMS, AND IN SOME CASES, WE MAY PROVIDE YOU WITH ADDITIONAL NOTICE (SUCH AS ADDING A STATEMENT TO OUR WEBSITE"S HOMEPAGE OR SENDING YOU AN EMAIL NOTIFICATION). WE ENCOURAGE YOU TO REVIEW THESE TERMS FREQUENTLY. 1. Definitions. In addition to terms defined elsewhere herein, the following capitalized terms will have the meanings set forth in this Section 1. 1. "Authorized User" means any employee, independent contractor or other temporary worker authorized by Customer to use Heroic Cloud while performing duties within the scope of their employment or assignment. 2. "Console" means a restricted-access developer interface made available by Heroic which allows Customer to modify player data. 3. "Customer Data" means (i) all data and other information (including all text, sound, video, or image files) that is provided to Heroic through Customer"s use of Heroic Cloud (including End User Data) and (ii) all data derived therefrom. 4. "Customer Materials" means: (i) Customer"s trademarks and logos provided to Heroic by Customer; (ii) Customer Data; (iii) server code provided by Customer and (iv) any other materials, data, and similar information, including without limitation text, video, photographs, graphics, images, music and sound, owned or licensed by Customer that are provided by Customer to Heroic or are otherwise processed through Heroic Cloud. 5. "Dashboard" means a restricted-access administrative interface feature which allows for configuration, management and monitoring of Heroic Cloud. For the sake of clarity, the Dashboard shall be deemed a part of Heroic Cloud for purposes of these Terms. 6. "Documentation" means the manuals, instructions, documentation and other documents or materials that Heroic makes generally available to its customers and the specific documentation that Heroic provides to Customer hereunder. 7. "Effective Date" is the date that You click "I Accept" to accept these Terms. 8. "End User" means any member of the public who makes use of Heroic Cloud by playing a Customer Game. 9. "End User Data" means any End User generated information (such as data files, written text, music, audio files or other sounds, photographs, videos or other images) provided through, or processed by, Heroic Cloud. 10. "Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby. 11. "Licensed Materials" means the Nakama Enterprise Software and any Documentation, application programming interfaces and sample source code provided to Customer by Heroic in order to facilitate Customer"s use of Heroic Cloud. For the sake of clarity, the Licensed Materials shall be deemed to be a party of Heroic Cloud. 12. "Losses" means any and all losses, damages, liabilities, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys" fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 13. "Heroic Cloud" means environments that are deployed, operationalized, and maintained by Heroic for Customer on Heroic"s cloud provider, including any Licensed Materials needed to facilitate Customer"s use and enjoyment of Heroic Cloud. If you have purchased a development-only version of Heroic Cloud, certain features and functionality will not be available to you. 14. "Nakama Enterprise Software" means Heroic"s multi-server clustering technology as further described in the Documentation. All updates, upgrades, modifications, corrections, releases, and versions will be considered part of the Nakama Enterprise Software. 15. "Open Source Component" means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled. 16. "Overage Fees" means (i) $0.25 per month per GB of bandwidth for each Nakama Enterprise Software vCPU that exceeds the 50GB of bandwidth per Nakama Enterprise Software vCPU that is included with Your purchase of Heroic Cloud, and (ii) $1.00 per month per GB of storage for each database vCPU that exceeds the 10GB of storage per database vCPU that is included with Your purchase of Heroic Cloud. 17. "Professional Services" means training, consulting, or implementation services that Heroic provides to Customer pursuant to an SOW. Professional Services do not include any support or maintenance services. 18. "Project" or "Customer Game" means a single Customer application that Heroic will provision servers for via Heroic Cloud. 19. "SOW" means a mutually executed statement of work or other document detailing the Professional Services (if any) that Heroic will perform for Customer, the price of such Professional Services and such other terms and conditions the parties agree on with respect to such Professional Services. Upon execution by the parties, each SOW will be subject to the terms and conditions of these Terms. 20. "Special Fees" means any fees for extra tooling (e.g., Cloud PubSub) provided by Heroic to Customer that are mutually agreed on by the parties in writing (including via email). 21. "Support Plan" means the support tier You selected if/when You purchased support services from Us. Different Support Plans will allow You to receive more comprehensive support and/or uptime guarantees. 22. "vCPU" means a single hyper-thread on one available CPU. 2. Heroic Cloud. 1. Heroic Cloud. In accordance with these Terms and the applicable Documentation, and during the Term (as defined below), (i) Heroic will provide Heroic Cloud to Customer and Customer may access and use Heroic Cloud for Customer"s internal business purposes only in conjunction with the Customer"s Projects, (ii) Heroic will provide Customer with access to the Dashboard to operate Heroic Cloud to provision servers for Customer Projects, and (iii) Heroic grants Customer a revocable, worldwide, royalty-free, limited-term, non-sublicensable, non-transferable and non-exclusive license to use the Licensed Materials solely as necessary for Customer to make use of Heroic Cloud. The foregoing license is for the sole purpose of enabling Customer to use and enjoy the benefit of Heroic Cloud in the manner permitted by these Terms. Any other use of the Licensed Materials is prohibited. The Licensed Materials are deemed accepted upon Customer"s first use of Heroic Cloud. 2. Restrictions. Unless expressly agreed to otherwise in writing by the parties, Customer and its Authorized Users may not (and may not permit anyone else to): (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to Heroic Cloud or the Deliverables (as defined below), unless expressly permitted or required by law; (ii) modify, translate, or create derivative works based on Heroic Cloud or the Deliverables; (iii) access (or attempt to access) the Dashboard or Console by any means other than through the web interface that is provided by Heroic in connection with Heroic Cloud; (iv) use Heroic Cloud or Deliverables in any way that may subject Heroic Cloud to any obligations under any open source software license, including, without limitation, any license which imposes any obligation or restriction with respect to Heroic"s patent or other Intellectual property rights in Heroic Cloud; (v) license, rent, transfer, assign or use any portion of Heroic Cloud or Deliverables for timesharing, resale or service bureau purposes or otherwise for the benefit of a third party or for any unauthorized commercial purposes; (vi) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any portion of Heroic Cloud or the Deliverables, including any copy thereof; (vii) input, upload, transmit or otherwise provide to or through Heroic Cloud, any information or materials that are infringing, harmful to minors, defamatory, harassing, abusive, unlawful, obscene, fraudulent, profane, violent or hate related, malicious or injurious, or contain, transmit or activate any Harmful Code; (viii) copy, frame or mirror any part or content of Heroic Cloud; (ix) access Heroic Cloud in order to build a competitive product or service; (x) bypass or breach any security device or protection used by Heroic Cloud; (xi); damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner Heroic Cloud or Heroic"s provision of products and services to any third party, in whole or in part; (xii) distribute, transfer, grant sublicenses to, or otherwise make available the Licensed Materials or Deliverables (or any portion thereof) to third parties; provided, however, that Customer can make the Licensed Materials and Deliverables available to Authorized Users and/or to End Users in connection with providing access to the Customer Games; (xiii) embed or incorporate in any manner the Licensed Materials or Deliverables (or any element thereof) into Customer and/or third-party applications, except for the Customer Games; (xiv) use Heroic Cloud or Deliverables in violation of any applicable law, rule or regulation, including but not limited to the Children"s Online Privacy Protection Act (as amended from time to time, "COPPA"); or (xv) develop multiple Customer Games to simulate or act as a single Customer Game, develop Customer Games under multiple unlinked accounts, or otherwise access or use Heroic Cloud in a manner intended to avoid incurring fees. In addition, Customer and its Authorized Users will not exceed the following limits when using Heroic Cloud: (a) 1GB log ingestion per vCPU and (b) a Customer Game cannot use Heroic"s shared cluster for metrics or pump metrics, or any other data in Heroic"s infrastructure, without Heroic"s prior consent. 3. Open Source Licenses. Heroic Cloud includes Open Source Components and any use of the Open Source Components by Customer shall be governed by and subject to the terms and conditions governing such Open Source Components. 4. Changes. Heroic reserves the right, in its sole discretion, to make any changes to Heroic Cloud that it deems necessary or useful to: (i) maintain or enhance: (a) the quality or delivery of Heroic Cloud to its customers; (b) the competitive strength of or market for Heroic Cloud, or (c) Heroic Cloud"s cost efficiency or performance; or (ii) to comply with applicable laws, rules and regulations. Heroic intends to minimize changes to functionality or features of Heroic Cloud that will negatively impact Projects. 5. Customer Responsibilities. Authorized Users must provide accurate and complete registration information any time they register to use Heroic Cloud. Customer is solely responsible for all actions taken by Authorized Users, the security of Authorized Users" passwords and any use of Authorized Users" account. If Customer becomes aware of any unauthorized use of an Authorized User"s password or account, Customer agrees to notify Heroic immediately. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use Heroic Cloud, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment. 6. Support and Maintenance. Provided that You have paid us the Support Fees (as defined below) associated with Your Support Plan, We will provide support and maintenance services for a particular Project as specified in Your chosen Support Plan and in accordance with our Support Policy (https://cloud.heroiclabs.com/support-terms.txt). The term of any Support Plan will begin on the date you purchase such Support Plan from Us. Support services may only be purchased in connection with production Projects and are not available for development Projects. You cannot downgrade or upgrade Your Support Plan for a particular Project after You have created that Project within the Dashboard. By purchasing a Support Plan, You are committing to a minimum of six months of support services and you authorize us to charge you the Support Fees (as defined below) in accordance with Section 3 below for such minimum of six months, regardless of whether or not you continue to use Our Heroic Cloud to provision any Projects during that six-month period. After the initial six-month term, your Support Plan will automatically renew on a monthly basis until the applicable Project for which you purchased such Support Plan has been deleted from Our Heroic Cloud. 7. Professional Services. In connection with providing Heroic Cloud, Heroic and Customer may agree in an SOW upon Professional Services to be performed by Heroic. Customer agrees to provide Heroic with any required Customer Materials needed for Heroic to perform the Professional Services, and hereby grants Heroic a royalty-free, non-exclusive, worldwide license to use such Customer Materials for the sole purpose of enabling Heroic to perform the Professional Services. Heroic will use commercially reasonable efforts to meet any deadlines set forth in the SOW, and Customer agrees to cooperate in good faith to allow Heroic to achieve completion of such Professional Services in a timely manner. Heroic retains all right, title and interest in and to anything it uses or develops in connection with performing Professional Services for Customer, including, among other things, software, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. The ownership and other rights with respect to anything Heroic delivers to Customer during the course of performing such Professional Services (collectively, "Deliverables") will be agreed on in the applicable SOW. 3. Fees and Payment Terms. 1. Fees. As consideration for Heroic providing You with Heroic Cloud and the related services set forth herein, You will pay Heroic (i) the applicable fees for the number of vCPUs you selected plus any Overage Fees (collectively, the "Usage Fee"), (ii) any Special Fees and/or fees for Professional Services, if applicable, and (iii) the applicable fees for the Support Plan you selected (if you purchased support services) (the "Support Fee" and together with the Usage Fee, any Special Fees and any applicable fees for Professional Services, the "Fees"). Heroic reserves the right to change its list prices for Heroic Cloud and Support Plans, and to add new fees and charges, by providing Customer with thirty (30) days" notice (which may be sent by email) of any such changes. If you do not agree to such price changes, you may terminate these Terms in accordance with Section 4 by deleting all of your Projects. 2. Payments. When You purchase Heroic Cloud from Us, Our third-party payment processor will collect your payment details and automatically charge your credit card, debit card or bank account for the Fees as follows: (i) at the time of Your initial purchase, You will be charged the monthly Support Fee prorated for the remainder of the calendar month in which you made the initial purchase, (ii) at the end of the initial calendar month and at the end of each subsequent calendar month thereafter, you will be charged the Usage Fee for the amount of vCPUs that you used each day during such calendar month, (iii) at the end of each calendar month (after the initial calendar month in which you made your purchase), you will be charged for the following month"s Support Fee, (iv) if you purchase Professional Services, you will be charged for any applicable fees as specified in the applicable SOW, and (v) if any Special Fees apply, you will be charged for such Special Fees on a schedule mutually agreed on by the parties. By making a Heroic Cloud purchase through Our website, You authorize Our payment processor to charge the payment method You have chosen for the Fees owed each month, including any applicable taxes and other charges, and You agree that any payment information supplied by You is true and complete. You are responsible for providing complete, accurate and valid credit card, billing, payment and contact information to Us and notifying Us of any changes to such information. If Your payment method cannot be verified, is invalid, or is otherwise not acceptable, Your access to Our Heroic Cloud may be suspended or cancelled. We do not view or store your full payment card/account information – such information is only viewed and stored by our third-party payment processor. For more information about our data use practices, please see our Privacy Policy (https://heroiclabs.com/privacypolicy.txt). 3. Late Charges. If any amounts due hereunder are not received by the due date (e.g., the charge to your credit card is denied for any reason), then (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and (ii) We may, without limiting Our other rights and remedies, suspend your access to Heroic Cloud until such amounts are paid in full and a valid credit card is provided. Any outstanding balance becomes immediately due and payable upon suspension or termination of Your access to Heroic Cloud for any reason. You are responsible for paying all reasonable expenses and attorneys' fees that We incur collecting late amounts. To the fullest extent permitted by law, You waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). 4. Taxes. The Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). As between Customer and Heroic, Customer accepts sole responsibility for the payment of any Taxes imposed on Customer, Heroic Cloud, or the Fees, and any penalties or interest. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Heroic is solely responsible for taxes assessable against it based on its income, property and employees. 5. Expenses. If Customer requests Heroic to provide Professional Services at Customer"s location or any other location other than Heroic"s offices, Customer shall reimburse Heroic for all reasonable travel and out-of-pocket expenses incurred by Heroic in providing the Professional Services pursuant to these Terms. Heroic will ensure that its personnel only incur travel and accommodation expenses in accordance with Customer"s policies as provided in writing by Customer to Heroic from time to time. 6. No Deductions or Setoffs. All amounts payable to Heroic under these Terms shall be paid by Customer to Heroic in full without any setoff, deduction, or withholding for any reason. All fees paid hereunder are non-refundable. 4. Term and Termination 1. Term. The term of these Terms will begin on the Effective Date and, unless terminated earlier as provided for herein, will automatically renew on a monthly basis for so long as you are using Heroic Cloud to provision any Projects (the "Term"). If you wish to terminate these Terms with respect to a Project, you must delete such Project from Heroic Cloud. The Term of any SOW shall be as set forth in such SOW. 2. Termination. Either party may terminate these Terms effective immediately upon written notice to the other party (i) if the other party materially breaches any part of these Terms or an SOW and fails to cure the breach within thirty (30) days of receiving written notice of it from the non-breaching party or the breach is one that cannot reasonably be cured within thirty (30) days; (ii) upon the occurrence of any one of the following events: (a) any voluntary or involuntary filing in bankruptcy, reorganization or receivership or under similar laws for the protection of creditors, by or directed against the other party, which is not withdrawn within thirty (30) days of such filing, (b) any assignment by the other party for the benefit of creditors, or (c) any liquidation or dissolution of the other party or if the other party ceases to do business in the normal course. In addition, Heroic may terminate or suspend these Terms (in whole or in part) immediately upon written notice to Customer if (1) Customer breaches any provision in Sections 2.1, 2.2 or 7.3 or otherwise violates Heroic"s intellectual property rights, (2) Customer fails to pay any portion of the Fees when due or (3) Heroic is discontinuing Heroic Cloud in response to a change in applicable laws or government regulations. Heroic may also terminate these Terms upon thirty (30) days' written notice to Customer. Termination of a single SOW will not affect the other SOWs not otherwise terminated. Termination of these Terms shall automatically terminate all outstanding SOWs. 3. Effect of Termination or Expiration; Survival. Customer will pay in full for Heroic Cloud and any Professional Services up to and including the last day on which Heroic Cloud and/or Professional Services are provided, which Fees will be paid in accordance with Section 3. Following the termination or expiration of these Terms or any SOW (i) Customer will no longer have the right to use Heroic Cloud or applicable Professional Services, as applicable; (ii) any applicable licenses granted to Customer in these Terms will immediately cease to exist as of the date of termination or expiration; (iii) Customer will immediately discontinue use of Heroic Cloud and the Deliverables referenced in an SOW, as applicable; and (iv) Customer will destroy any copies of the Licensed Materials and any applicable Deliverables, as applicable. Customer agrees to provide written confirmation of its compliance with the foregoing requirements upon Heroic's written request. Customer is solely responsible for exporting its Projects and related data from Heroic Cloud prior to termination or expiration of these Terms, provided that if Heroic terminates these Terms, it will provide Customer a reasonable opportunity to retrieve its Projects and related data. Sections 1, 3, 4.3 and 5-10 (together with all other provisions hereof, including, without limitation, all SOWs and any terms in the Privacy Policy (https://heroiclabs.com/privacypolicy.txt), Support Policy (https://cloud.heroiclabs.com/support-terms.txt) or Data Processing Terms (https://cloud.heroiclabs.com/dpa.txt), that may be reasonably interpreted as surviving termination or expiration of these Terms) will survive the termination or expiration of these Terms. 5. Ownership; Data. 1. Heroic Ownership. As between Customer and Heroic, Heroic owns and reserves all of its and its licensors" right, title and interest in and to: (i) Heroic Cloud (including the Licensed Materials); (ii) the Deliverables (unless otherwise specified in the applicable SOW or a separate written agreement); (iii) any and all enhancements, improvements, developments, derivative works or other modifications made to the foregoing; (iv) the Resultant Data (as defined below); (v) Heroic"s Confidential Information (as defined below), and (vi) all intellectual property rights in the foregoing (collectively, the "Heroic Intellectual Property"). Except as may expressly be set forth in these Terms, no right, title, or interest to any of the Heroic Intellectual Property is transferred or licensed to Customer. 2. Customer Materials. As between Customer and Heroic, Customer owns and reserves all of its and its licensors" right, title and interest to: (i) the Customer Materials, (ii) Customer"s Confidential Information, and (iii) all intellectual property rights in the foregoing (collectively, the "Customer Intellectual Property"). Customer hereby grants to Heroic a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable, transferable (in accordance with Section 10.7) license to store, use, reproduce, adapt, modify, translate, publish, publicly perform and distribute Customer Materials during the Term for the purpose of providing Heroic Cloud and any Deliverables to Customer and as otherwise necessary for Heroic to perform its obligations or exercise its rights under these Terms. Heroic"s use of any Customer trademarks and logos shall be in accordance with Customer"s then current trademark usage and style guidelines or specific instructions that are provided to Heroic in writing in advance. Except as may expressly be set forth in these Terms, no right, title, or interest to any of the Customer Intellectual Property is transferred or licensed to Heroic. 3. Resultant Data. Notwithstanding anything to the contrary set forth in these Terms, Heroic shall have the right to collect and analyze Customer Data and End User Data (as defined below) relating to the provision, use and performance of various aspects of Heroic Cloud and related systems and technologies (collectively, the "Resultant Data"), provided that Heroic will only use such Resultant Data (i) to improve and enhance Heroic Cloud and for other development, diagnostic and corrective purposes in connection with Heroic Cloud and other Heroic offerings, and (ii) to disclose and publish such Resultant Data (and statistics derived therefrom) solely in an aggregated and anonymized form in connection with its business. The foregoing rights with respect to Resultant Data will be irrevocable and perpetual. 4. Personal Data. Heroic is not involved in the collection, processing or retention of any personally identifiable information from Customer or its End Users, except for limited personally identifiable information (i) required for Authorized Users to setup an account to access the Dashboard or Console, (ii) that constitutes Controller Data (as defined in Our Data Processing Terms (https://cloud.heroiclabs.com/dpa.txt)), (iii) provided to Heroic in connection with Customer obtaining support services or Professional Services from Heroic or (iv) provided to Heroic for the purposes of invoicing Customer and processing Customer"s payments ((i) through (iv) being collectively referred to as the "Limited PII"). All personal data will be collected, stored and transferred by Heroic in accordance with Our Data Processing Terms (https://cloud.heroiclabs.com/dpa.txt) and Privacy Policy (https://heroiclabs.com/privacypolicy.txt), and by agreeing to these Terms and purchasing and/or using our Heroic Cloud, You consent to Us processing such personal data in accordance with such Privacy Policy (https://heroiclabs.com/privacypolicy.txt) and Data Processing Terms (https://cloud.heroiclabs.com/dpa.txt). Unless Customer receives prior express written authorization from Heroic, Customer may not process via Heroic Cloud, or submit to Heroic, any Customer Materials that include any: (i) "personal health information," as defined under the Health Insurance Portability and Accountability Act of the United States of America; (ii) government issued identification numbers, including Social Security numbers, driver's license numbers and other state or national issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; (v) biometric information, such as fingerprints or voiceprints; (vi) any other personally identifiable information (except for the Limited PII); or (vi) "sensitive" personal data, under Regulation (EU) 2016/679 of the European Parliament and of the Council ("EU Regulation") and any national laws adopted pursuant to the EU Regulation, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense. 5. Feedback. If Customer provides suggestions, feedback or other input to Heroic concerning the functionality and performance of Heroic Cloud, including identifying potential errors and improvements (collectively "Feedback"), then Customer hereby grants Heroic and its affiliates a worldwide, irrevocable, perpetual, transferable, sublicensable, non-exclusive, royalty-free, fully paid-up right and license to use, perform, display, reproduce, create derivative works, and otherwise exploit such Feedback for any purpose. 6. Confidential Information. 1. Definition of Confidential Information and Obligations. Each party (the "Receiving Party") acknowledges that by reason of its relationship to the other party (the "Disclosing Party") under these Terms, the Receiving Party will have access to Confidential Information (as defined below) of the Disclosing Party. For purposes of these Terms, "Confidential Information" means any business or technical information that either party discloses to the other, in writing, orally, or by any other means, that is designated, or that is reasonably expected under the circumstances to be, confidential or proprietary, including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions, schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. The terms of any SOWs shall also be deemed to be Confidential Information of both parties. The Receiving Party agrees that it shall not (i) use the Disclosing Party"s Confidential Information except as necessary to carry out its obligations or exercise its rights under these Terms or (ii) disclose the Disclosing Party"s Confidential Information to any third party except as expressly otherwise provided in these Terms. The Receiving Party shall treat the Disclosing Party"s Confidential Information in confidence and protect it with the same degree of care as the Receiving Party uses to protect its own confidential or proprietary information of a similar nature, but with no less than reasonable care. 2. Exclusions. Confidential Information does not include any information that the Receiving Party can demonstrate by written records: (i) was rightfully known to the Receiving Party, free of any confidentiality obligations, prior to its disclosure under these Terms by the Disclosing Party; (ii) is independently developed by the Receiving Party without making use of or reference to any Confidential Information of the Disclosing Party; (iii) is or becomes publicly known through no wrongful act of the Receiving Party; (iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction; (v) has been approved for disclosure by the Disclosing Party"s prior written authorization; or (vi) must be produced or disclosed pursuant to applicable law, regulation or court order, or upon request by an examiner, auditor or regulator provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. The Receiving Party may disclose the Disclosing Party"s Confidential Information to its employees, independent contractors, consultants, and legal and financial advisors with a need to know such information and who are parties to appropriate agreements, or otherwise bound by confidentiality obligations, sufficient to comply with this Section 6 (collectively, "Representatives"). Each party will be responsible for all acts and omissions of its Representatives. 3. Return. Upon the earlier of the Disclosing Party"s request or the termination or expiration of these Terms, the Receiving Party shall, at the Disclosing party"s option, promptly return to the Disclosing Party or destroy all Confidential Information including all copies thereof, in whatever medium in its possession or control; provided that the Receiving Party may retain Confidential Information of the Disclosing Party that (i) is contained in an archived computer system backup that was made in accordance with the Receiving Party"s security, e-mail retention, and/or disaster recovery procedures; (ii) is kept by its legal department for record-keeping, archival, or governance purposes in compliance with the Receiving Party"s document retention policies; or (iii) is required to be retained by applicable law. Any Confidential Information so retained shall remain subject to the restrictions set forth in this Section 6. 4. Injunctive Relief. The receiving party acknowledges that disclosure of any Confidential Information by it will give rise to irreparable injury to the disclosing party, not adequately compensated by damages. Accordingly, the disclosing party will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 6, in addition to any other legal remedies which may be available. 7. Representations and Warranties; Disclaimers. 1. Mutual Representations and Warranties. Each party represents and warrants to the other that (i) it has the right, power, and authority to enter into these Terms and perform its obligations hereunder; (ii) it will, at all times, comply with all applicable laws, statutes, treaties and regulations in its performance of these Terms; and (iii) its entering into, and performance under, these Terms will not conflict with or violate any agreement or other obligation directly or indirectly applicable to such party. 2. Representations and Warranties by Customer. Customer represents, warrants and covenants that it (i) will comply with all laws relating to the privacy of End Users; (ii) will protect the privacy and legal rights of its End Users; (iii) will provide legally adequate privacy notices to End Users; (iv) will ensure that End Users are notified of, and consent to, the transfer and use of End User Data to Heroic in connection with Customer"s Game and Heroic Cloud; (vi) is solely responsible for the Customer Materials, (vii) will, if applicable, obtain any necessary parental or other consent required under COPPA for End Users under the age of 13 to make use of Heroic Cloud by playing a Customer Game; and (viii) the Customer Materials will not infringe any third-party"s copyrights or patents or misappropriate any third-party"s trade secrets. 3. Representations and Warranties by Heroic. Heroic represents and warrants that (i) Heroic Cloud, as delivered and when used in accordance with the Documentation and these Terms, will perform in all material respects as specified in such Documentation for the first ninety (90) days of the Term; and (ii) Heroic shall perform the Professional Services (if any) in a professional and workmanlike manner. In the event of any breach of the warranties in subsection (i) above, Heroic shall, as its sole liability and Customer"s sole remedy, use reasonable efforts to remedy any deficiencies that cause Heroic Cloud or Professional Services, as applicable, to not conform to such warranties promptly after its receipt of written notice from Customer. Heroic will not be liable to the extent that any breach of the warranties in subsection (i) above are caused by (1) third-party components not provided by Heroic or any Open Source Components included within Heroic Cloud; (2) any Customer Materials; (3) modifications to Heroic Cloud made by a party other than Heroic; (4) unauthorized use of Heroic Cloud or (5) Harmful Code introduced by Customer or its agents or customers. 4. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, HEROIC CLOUD, DELIVERABLES, SUPPORT AND MAINTENANCE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND HEROIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEROIC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (i) CUSTOMER"S USE OF HEROIC CLOUD, DELIVERABLES, SUPPORT AND MAINTENANCE SERVICES OR PROFESSIONAL SERVICES WILL MEET CUSTOMER"S REQUIREMENTS; OR (ii) CUSTOMER"S USE OF HEROIC CLOUD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. IN ADDITION, HEROIC DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE DELETION OF, OR FAILURE TO STORE, ANY CUSTOMER MATERIALS MAINTAINED BY OR TRANSMITTED THROUGH CUSTOMER"S USE OF HEROIC CLOUD. 8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HEROIC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING FOR ANY LOSS OF DATA, PROFITS, REVENUE OR GOODWILL, INTERRUPTION OF BUSINESS OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES) ARISING FROM OR RELATING TO THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF HEROIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEROIC"S TOTAL CUMULATIVE LIABILITY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO HEROIC HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. FOR THE SAKE OF CLARITY, HEROIC MERELY PROVIDES TOOLS THAT ALLOW CUSTOMER TO PROVIDE CUSTOMER GAMES TO END USERS, AND HEROIC IS NOT RESPONSIBLE FOR, AND HEREBY DISCLAIMS ALL LIABILITY RELATED TO, SUCH CUSTOMER GAMES AND END USERS" USE OF SUCH CUSTOMER GAMES. 9. Indemnity. 1. By Heroic. Heroic will indemnify, hold harmless and defend Customer and its shareholders, officers, directors, employees, affiliates and agents (collectively, "Customer Indemnified Parties") from and against any and all Losses incurred by such Customer Indemnified Parties arising out of any claim, suit, action or proceeding by a third party (an "Action") alleging that Heroic Cloud or Deliverables infringes any U.S. copyrights or patents or misappropriates any trade secrets (a "Heroic Infringement Claim"). The foregoing obligations do not apply with respect to Heroic Infringement Claims related to (i) portions or components of Heroic Cloud (a) not supplied by Heroic, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified by a party other than Heroic, (d) combined with other products (including Customer Games or Customer Materials), processes or materials, unless the Heroic Infringement Claim would have arisen irrespective of such combination, or (e) that are Open Source Components ; (ii) Customer"s failure to stop using Heroic Cloud after receiving written notice to do so from Heroic in order to avoid further infringement or misappropriation; (iii) Customer's use of Heroic Cloud in violation of these Terms or the Documentation; (iv) Customer Materials; or (v) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Heroic. If Heroic Cloud or Deliverables (or any portion or component thereof) becomes, or in Heroic"s opinion is likely to become, the subject of a Heroic Infringement Claim, Heroic may, at its option and expense, either (a) procure for Customer the right to continue using Heroic Cloud and Deliverables as provided for in these Terms, or (b) replace or modify Heroic Cloud or Deliverables so that they become non-infringing and remain functionally equivalent. If neither of the foregoing options are, in Heroic"s reasonable opinion, commercially reasonable, Heroic may terminate these Terms and will refund to Customer a pro-rata portion of any applicable prepaid Fees. THIS SECTION 9 SETS FORTH CUSTOMER"S SOLE REMEDIES AND HEROIC"S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS THAT HEROIC CLOUD OR DELIVERABLES INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 2. By Customer. Customer will indemnify, hold harmless and defend Heroic and its shareholders, officers, directors, employees, affiliates and agents (collectively, "Heroic Indemnified Parties") from and against any and all Losses incurred by such Heroic Indemnified Parties arising out of any Action (i) alleging that any Customer Game infringes any copyrights or patents or misappropriates any trade secret rights; (ii) relating to the Customer Materials or (iii) relating to Customer"s breach of Sections 2.1 2.2 or 7.3. 3. Indemnification Procedure. Each party (the "Indemnitor") shall promptly notify the other party (the "Indemnitee") in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Section 9. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor"s sole cost and expense. The Indemnitee shall cooperate with the Indemnitor, at the Indemnitor"s sole cost and expense, in such defense and investigation of such Action. The Indemnitee"s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may not settle any Action without the Indemnitee"s prior written consent if such settlement requires a payment or admission of liability by such Indemnitee. 10. Miscellaneous. 1. Subcontractors. Heroic may from time to time in its discretion engage third parties to provide a portion or all of Heroic Cloud (each, a "Subcontractor"). Heroic shall not be liable for the acts and omissions of its Subcontractors to the extent any such acts or omissions are outside of Heroic"s direct control. 2. Export Compliance. Customer understands that Heroic Cloud and Deliverables are subject to United States export controls administered by the U.S. Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control. Customer acknowledges and agrees that Heroic Cloud and Deliverables shall not be used, transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Entity List, Denied Persons List, or Unverified List, or the U.S. Department of State"s Nonproliferation Sanctions list (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining United States government export licenses to export or re-export as may be required. 3. Governing Law, Jurisdiction. These Terms and all rights and obligations of the parties will be exclusively governed by, and construed and interpreted in accordance with the laws of the State of California (without regard to conflict of law principles). Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal or state courts sitting in the County of San Francisco, California, and any appellate court of such court, solely for the purpose of any suit, action or proceeding brought to enforce its obligations under these Terms or in any way relating to these Terms. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to these Terms. 4. Publicity. Heroic shall have the right to issue a press release announcing the fact of these Terms and describing the nature of their relationship. Provided that Heroic complies with Customer"s brand guidelines as advised from time to time: (i) Heroic shall have the right to list Customer as a customer in written, oral and electronic materials which include the names of Heroic"s customers; and (ii) provide Customer as a customer reference for Heroic. Except as expressly permitted in these Terms, Heroic shall not use any trademark, service mark, trade name, or other name or logo of Customer in any advertising or publicity and shall not issue any public statement concerning these Terms without the prior written consent of Customer. 5. Entire Agreement. These Terms, together with all SOWs, the Privacy Policy (https://heroiclabs.com/privacypolicy.txt), the Support Policy (https://clou2.heroiclabs.com/support-terms.txt) and the Data Processing Terms (https://cloud.heroiclabs.com/dpa.txt), which are incorporated into and made a part of these Terms, contain the entire understanding of the parties relating its subject matter and supersedes any prior written or oral agreement or understandings between the parties with respect to its subject matter of these Terms. Notwithstanding the foregoing, if you have executed a Written Contract with respect to Our Heroic Cloud or related services, that Written Contract, and not these Terms, will govern such purchase of our Heroic Cloud and related services. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 6. Severability. If any provision of these Terms shall be held to be invalid or unenforceable, the remainder of these Terms shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws. 7. Assignment. Customer is not allowed to assign or transfer any of its rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without Heroic"s prior written consent, and any attempt to do so without such consent will be null and void. Heroic may freely assign its rights and obligations under these Terms without requiring any consent from, or notice to, Customer. 8. Force Majeure. Except with respect to obligations to make payments under these Terms, neither party shall be deemed in default under these Terms, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations under these Terms due to causes beyond its reasonable control including, but not limited to: pandemic, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree. 9. Relationship of the Parties. Heroic is an independent contractor of Customer. These Terms shall not be construed to and does not create a relationship of agency, partnership, employment or joint venture. Neither party has the authority to bind the other or create any legal obligation or responsibility for the other without the other party"s prior written consent. The inclusion of portions of these Terms in Heroic"s arrangements with its consultants or subcontractors shall not create a contractual relationship between a consultant or subcontractor of Heroic and Customer. 10. Notice. Any legal notice, request, demand or other communication required or permitted under these Terms should be in writing, should reference these Terms, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth in the opening paragraph of these Terms, unless we notify each other that those addresses have changed. 11. Modifications. We may change these Terms from time to time. If We make changes, We will notify You by revising the date at the bottom of these Terms, and in some cases, We may provide You with additional notice (such as adding a statement to Our website"s homepage or sending You an email notification). We encourage You to review these Terms frequently. Modifications may also be made to these Terms, as they apply to You, in the event that You and Heroic sign a written amendment to these Terms. 12. Waivers. A party"s obligations under these Terms can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. The failure of a party to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless in writing. Last Updated: April 28th, 2022.