Legal Question in Technology Law in United Kingdom

Hello, im writing to you on behalf of the RCCE community (http://realmcrafterce.com/forum/index.php). A concern has been raised and i hope to resolve it with you.

Realm Crafter is a game creation engine owned by Solstar games (http://realmcrafter.com/). For the past 7 years the community has been neglected and had no support what so ever from Solstar nor any form of development on the engine. When you buy a license you have to register it upon installation of the software onto your pc. Solstar have turned off their registration and forum servers without warning (they have not been functional for just over two weeks) Solstar however continue to sell licenses for Realm Crafter. Since you have to re-register your license once every two months, existing license holders and new license holders CANNOT use the software they bought. Is this theft?

On to the main topic however, when you purchase a license for Realm Crafter you also are officially allowed to have and edit the source code of the engine. Unofficially about 70% of those who requested it never received it. There was no letter of denial they simply never got a response from Solstar support. The customer support from Solstar AFTER you have bought a license is non-existent. Some existing license holders who were lucky to get access to the source code of the Engine and due to the maltreatment from Solstar to the Community, the Community have built their own forums and we have started to develop our own version of the engine.

What we want to know is can we distribute our version of the Engine to the public for free. After reading through the EULA for the software there seems to be area's where Solstar did not keep their side of the agreement. Does this make the EULA void? Does this stop it from being valid?

Below is the EULA for the Realm Crafter software...

End User License Agreement (EULA)

SOLSTAR GAMES REALM CRAFTER GAME ENGINE STANDARD EDITION SOFTWARE END USER LICENSE AGREEMENT.

IMPORTANT: THIS SOLSTAR GAMES REALM CRAFTER GAME ENGINE STANDARD EDITION SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU AND SOLSTAR GAMES. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY LIMITATIONS, LIABILITY DISCLAIMERS AND INDEMNIFICATION REQUIREMENTS. BY SELECTING THE DOWNLOAD OR INSTALL NOW BUTTON AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE.

I. DEFINITIONS

1. "Solstar Games" means Solstar Games and its licensors, if any.

2. "Software" means the Solstar Games Realm Crafter Game Engine and third party software programs, in each case, supplied by Solstar Games herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you.

II. LICENSE GRANTS

1. You may only install and use the Software on a single desktop computer that has a Windows PC operating system (including desktop PC versions of Windows 95, 98, 2000, NT, ME and XP (Home and Professional). You may not use the Software on any non-PC product or any embedded or device versions of the above operating systems, including, but not limited to, internet appliances, set top boxes (STB), handhelds, PDAs, phones, web pads, game consoles, TVs, DVDs, gaming machines, home automation systems, kiosks or any other consumer electronics devices or mobile/cable/satellite/television or closed system based service. A license for the Software may not be shared, installed or used concurrently on different computers.

2. Your license rights under this EULA are non-exclusive.

3. You are granted a single “seat” and non-transferable license for the use of the Software to make an unlimited number of electronic single or multi-user Game(s) (“Game(s)”). You may load the Game(s) on a server for distribution to customers.

4. You may publicly sell, distribute, release, publish, transmit and/or exploit any Game(s) created hereunder.

5. You may have the Game(s) published in any channel by any publisher with no royalties.

III. LICENSE RESTRICTIONS

1. You may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.

2. You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

3. You may not sell, rent, lease, or sublicense or otherwise transfer rights to the Software.

4. You may not modify the Software and/or create derivative works of the Software for the creation of any game engine. However, you may create Game(s) and have Game(s) clients and Game(s) servers that are executable as provided above.

5. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.

6. In the event that you fail to comply with this EULA, Solstar Games may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).

7. You shall not use the Software to develop any software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software.

8. You may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software.

9. You may not distribute the source code or documentation to the Software in any manner, unless the recipient also has a license to the Software.

10. You may not sell, distribute, modify, give away and/or otherwise transfer any of the artistic content from the Software, including but not limited to the 3D models, animations and/or illustrations. You may only use the artistic content in a Game(s) created using the Software. In addition, you may alter textures maps in the Software for Games created with the Software.

IV. OWNERSHIP

The foregoing license gives you limited license to use the Software. Solstar Games and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Solstar Games and its suppliers.

V. FEES

1. The license fee for the Software is per each computer using or accessing the software.

VI. TERMINATION

Without prejudice to any other rights, Solstar Games may terminate this Agreement if you breach any of its terms and conditions. Upon termination, you shall destroy all copies of the Software.

VII. WARRANTY DISCLAIMER

1. THE SOFTWARE IS PROVIDED TO YOU ON AN "AS-IS" BASIS. SOLSTAR GAMES PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE SOFTWARE.

2. SOLSTAR GAMES AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. SOLSTAR GAMES DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.

3. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

4. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOLSTAR GAMES, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.

5. (USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

6. SOLSTAR GAMES SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM.

IIX. LIMITATION OF LIABILITY

NEITHER SOLSTAR GAMES NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SOLSTAR GAMES OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

2. SOLSTAR GAMES' TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.

3. (USA ONLY) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

4. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS EULA.

IX. INDEMNIFICATION

You shall defend, indemnify and hold harmless Solstar Games and its affiliated companies and partners and their respective officers, directors, employees and agents from and against any and all liabilities, damages, costs and fees (including actual attorneys fees) resulting from or related to : (i) any third party claims or lawsuits related to the Software and/or Game(s) created with the Software by you and/or (ii) any third party claims or lawsuits related to any obligations incurred under and/or actions taken pursuant to this Agreement by you.

X. BASIS OF BARGAIN

The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between Solstar Games and you. Solstar Games would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of Solstar Games, and its successors and assigns.

XI. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND

This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Solstar Games, LLC.

XII. (OUTSIDE OF THE USA) CONSUMER END USERS ONLY

The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.

The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.

You are also responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the software, and you represent that you have complied with any and all regulations or registration procedures required by applicable law to make this license enforceable. The language of this Agreement is English.

XIII. THIRD PARTY SOFTWARE

The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://www.realmcrafter.com and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.

XIV. GENERAL

This EULA shall be governed by the internal laws of the State of Michigan, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Washtenaw County, Michigan or the federal courts in the Eastern District of Michigan to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Solstar Games to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

No Solstar Games dealer, agent or employee is authorized to make any amendment to this EULA.

If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.

All questions concerning this EULA shall be directed to: Solstar Games, [email protected].

Solstar Games and other trademarks contained in the Software are trademarks or registered trademarks of Solstar Games in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Solstar Games’ or its licensors' names or any of their respective trademarks.

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Things that I have picked up on are...

a) Termination - They have stated that they can terminate any Licenses provided they have breached the EULA,but nothing that says that they can cancel all licenses because they are no longer providing the service. To me this says that they will never stop proving their service (which they currently at the moment have).

b) All questions concerning this EULA shall be directed to: Solstar Games, [email protected]. This E-mail does not work! I have sent countless e-mails to try and get in contact with Solstar with this address and no response what so ever. There are no other support E-mails that anyone is aware of and none that are displayed on their website.

c)No Solstar Games dealer, agent or employee is authorized to make any amendment to this EULA. Does this mean that this represent the final copy of the EULA, meaning they cannot amend it what so ever? If so does that mean if this EULA becomes invalid they cannot correct it, thus giving us the ability to distribute it?

These are all things that have come to my mind however im not a Lawyer so thats why i've come to ask. Please get back to me as soon as possible.

Many Thanks

Zaven.

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