NVIDIA CORPORATION
NVIDIA®APEX SDK END USER LICENSE AGREEMENT

Welcome to the new world of game development physical asset creation provided to you with the APEX SDK from NVIDIA®.

NVIDIA Corporation (“NVIDIA”) is willing to license the APEX SDK and the accompanying documentation, samples applications, utilities, and asset authoring libraries to you only on the condition that you accept all the terms in this License Agreement (“Agreement”).

IMPORTANT: READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE ACCOMPANYING NVIDIA APEX SDK.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, NVIDIA IS NOT WILLING TO LICENSE THE APEX SDK TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHALL DESTROY THIS ENTIRE PRODUCT AND PROVIDE EMAIL VERIFICATION TO PHYSXLICENCING@NVIDIA.COM OF DELETION OF ALL COPIES OF THE ENTIRE PRODUCT.

NVIDIA MAY MODIFY THE TERMS OF THIS AGREEMENT FROM TIME TO TIME. ANY USE OF THE APEX SDK WILL BE SUBJECT TO SUCH UPDATED TERMS. A CURRENT VERSION OF THIS AGREEMENT IS POSTED ON NVIDIA’S DEVELOPER WEBSITE: http://developer.nvidia.com/content/apex-sdk-eula

1. Definitions. “Physics Application” means a software application designed for use and fully compatible with the APEX SDK and/or NVIDIA Graphics processor products, including but not limited to, a video game, visual simulation, movie, or other product. “APEX Software Development Kit” or “APEX SDK” means the set of instructions for computers, in executable form and in any media (which may include diskette, CD- ROM, downloadable internet, hardware, or firmware) comprising NVIDIA’s proprietary Software Development Kit and related media and printed materials, including Redistributable Code, Sample Code, reference guides and manuals, installation routines, API’s, libraries, any subsequent updates or adaptations provided by NVIDIA, whether with this installation or as separately downloaded. “Sample Code” means the sample interface or application source and object code files contained within the APEX SDK’s “Samples” directory or made available for download from the PhysX developer site and designated as sample code.

2. License. Subject to the terms and conditions of this Agreement, NVIDIA grants you (“you”) a limited, non-exclusive, non-transferable world-wide, royalty-free license to (a) internally install, use and display the APEX SDK, solely for purposes of developing APEX asset content for Physics Applications; (b) internally use, copy, modify and compile the Sample Code to design, develop and test APEX assets; and (c) reproduce and distribute the Redistributable Code only in object code form and only as fully integrated into Physics Applications, in each case solely for (i) your commercial purposes provided that you receive less than one hundred thousand dollars ($100,000) in gross revenue associated with Physics Applications or (ii) your non-commercial purposes.

In addition, you may not and shall not permit others to:

I. modify, reproduce, de-compile, reverse engineer or translate the APEX SDK; or
II. distribute or transfer the APEX SDK other than as part of the Physics Application.

Except as expressly granted herein, no other license under any patent, copyright, trade secret, trademark or other intellectual property right is granted to or conferred upon you by this Agreement. All other rights are expressly reserved by NVIDIA and its licensors.

3. Redistribution; Physics Applications. Any redistribution of the APEX SDK (in accordance with Section 2 above) or portions thereof must be subject to an end user license agreement including language that

a) prohibits the end user from modifying, reproducing, de-compiling, reverse engineering or translating the APEX SDK;
b) prohibits the end user from distributing or transferring the APEX SDK other than as part of the Physics Application;
c) disclaims any and all warranties on behalf of NVIDIA and its affiliated companies and licensors;
d) disclaims, to the maximum extent permitted by law, NVIDIA’s, its affiliated companies
and its licensors' liability for all damages, direct or indirect, incidental or consequential, that may arise from any use of the APEX SDK and/or Physics Application;
e) requires the end user to agree not to export the APEX SDK and/or Physics Application,
directly or indirectly, in violation of any U.S. laws; and

You are required to notify NVIDIA prior to use of the APEX SDK in the development of any commercial Physics Application. Please send notification by email to: physxlicensing@nvidia.com and provide the following information in the email:

- Company Name
- Publisher Name
- Game Title
- Platforms (i.e. PC, Xbox, PS3, Wii)
- Scheduled Ship Date

Any commercial Physics Application integrating the APEX SDK is subject to a license to NVIDIA for use and public display of such Physics Application for advertising and marketing purposes.

Failure to notify NVIDIA pursuant to this Section AND FAILURE to provide attribution pursuant to section 6 shall be considered a material breach of this agreement.

4. Ownership, Protections. The APEX SDK is owned by NVIDIA and NVIDIA licensors, and is protected by United States copyright laws, international treaty provisions, and other applicable laws. With regard to any copies made, you agree to reproduce any copyright notices and other proprietary legends included on the original. NVIDIA copyright notice(s) may appear in any of several forms, including machine-readable form, and you agree to reproduce such notice in each form in which it appears. Title and copyrights to the APEX SDK and any copies made by you remain with NVIDIA and its licensors. You acknowledge that the APEX SDK contain valuable proprietary information and trade secrets and that unauthorized or improper use of the APEX SDK will result in irreparable harm to NVIDIA and its licensors for which monetary damages would be inadequate and for which NVIDIA and its licensors will be entitled to immediate injunctive relief. Subject to the rights of NVIDIA and its licensors in the APEX SDK and the Sample Code, you own your modifications to the Sample Code.

5. Restrictions. You will not, and will not permit others to: (a) modify, translate, decompile, bootleg, reverse engineer, disassemble, or extract the inner workings of any portion of the APEX SDK except the Sample Code, (b) copy the look-and-feel or functionality of any portion of the APEX SDK except the Sample Code; (c) remove any proprietary notices, marks, labels, or logos from the APEX SDK or any portion thereof; (d) rent, transfer or use as a service bureau all or some of the APEX SDK without NVIDIA’s prior written consent, except in the form of Physics Applications and subject to the requirements of this Agreement; (e) utilize any computer software or hardware which is designed to defeat any copy protection device, should the APEX SDK be equipped with such a protection device; or (f) use the NVIDIA Licensed Software in any manner that would cause the NVIDIA Licensed Software to become subject to an Open Source License. "Open Source License" includes, without limitation, a software license that requires as a condition of use, modification, and/or distribution of such software that the NVIDIA Licensed Software be (i) disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no charge. Unauthorized copying of the APEX SDK, or failure to comply with any of the provisions of this Agreement, will result in automatic termination of this license.

6. Attribution Requirements and Trademark License. You must provide attribution to NVIDIA.

A. You will include a reference to the APEX SDK and NVIDIA in any press releases for such Game that relate to NVIDIA, or in-game physics, and will identify NVIDIA as the provider of "APEX" (or such other term or phrase as indicated by NVIDIA from time to time).

B. For Games, Demos, and Videos that incorporate the APEX SDK or portions thereof, the NVIDIA
logos must appear:

a. on the back cover of the instruction manual or similar placement in an electronic file for the purpose of acknowledgement/copyright/trademark notice;
b. on external packaging;
c. during opening marquee or credits with inclusion of “NVIDIA”;
d. must appear on title marketing feature list with a specific call-out of NVIDIA APEX Technology
e. on the credit screen; and
f. in the “About” or “Info” box menu items (or equivalent) of all Physics Games or Applications using any portion of the APEX SDK.

C. Provide a quote citing the Licensee’s integration of the APEX SDK into the Game or Application for NVIDIA’s use in press materials and website.

D. Refer to NVIDIA’s APEX SDK in all press coverage referring to the use APEX in the development of any Game or Application.

Failure to provide attribution pursuant to this Section shall be considered a material breach of this agreement.

Except as expressly set forth in this Section 6, or in a separate written agreement with NVIDIA, you may not use NVIDIA's trademarks, whether registered or unregistered, in connection with the Physics Application in any manner or imply that NVIDIA endorses or otherwise approves of the Physics Application or that you and NVIDIA are in any way affiliated. Your use of the NVIDIA name under this Agreement does not create any right, title or interest in the NVIDIA name or any NVIDIA trademarks and all goodwill arising from your use inure solely to the benefit of NVIDIA.

7. DISCLAIMER. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, THE APEX SDK IS PROVIDED “AS IS” AND NVIDIA AND ITS LICENSORS MAKE, AND YOU RECEIVE, NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. NVIDIA SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NVIDIA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NVIDIA MAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND DOCUMENTATION. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

8. Remedies. The entire liability of NVIDIA and its licensors, and your exclusive remedy under the warranty provided herein will be, at NVIDIA’s option, to replace any media found to be defective within the warranty period, or to refund the purchase price and terminate this Agreement. To seek such a remedy, you must return the entire APEX SDK to NVIDIA, with a copy of the original purchase receipt within the warranty period.

9. Confidential Information. All technical and business information disclosed by NVIDIA to you under this Agreement, including but not limited to source code, documentation, technical assistance and any confidential information pertaining to NVIDIA’s business or products, are to be considered “NVIDIA Confidential Information.” You will not disclose any portion of NVIDIA Confidential Information to any third party and will protect all NVIDIA Confidential Information with the same degree of care as you use to protect your own information of a confidential or proprietary nature, but always with at least a reasonable degree of care. This obligation of confidentiality will survive termination and/or expiration of this Agreement for any reason.

10. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF NVIDIA AND ITS LICENSORS UNDER THIS AGREEMENT FOR DAMAGES WILL NOT EXCEED $100 IN THE AGGREGATE. IN NO EVENT WILL NVIDIA OR ITS LICENSORS BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER NVIDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not permit limitations of liability for incidental or consequential damages, so the above exclusions may not apply to you.

11. Customer and Technical Support. You will be solely responsible for providing customer and technical support to end users of the Physics Application for all features of the Physics Application, including those features that relate to integration, functionality or compatibility of the Physics Application with NVIDIA products. NVIDIA may provide you with technical support related to use of the APEX SDK under terms and conditions as posted on the NVIDIA PhysX developer website, which may, in NVIDIA’s sole discretion, be changed from time to time.

12. Term of License; Termination. Your right to use the APEX SDK will begin when you click the “ACCEPT” button, which constitutes acceptance of the terms and conditions herein. The license is effective until otherwise terminated. You may terminate it at any time by destroying the APEX SDK and all portions thereof, together with all copies in any form. If you fail to comply with any material term or condition of this Agreement and do not cure the noncompliance within 30 days of receipt of written notice of noncompliance from NVIDIA, NVIDIA may terminate your rights to conduct any further development under Sections 2(a) and (b) of this Agreement ("Partial Termination"). Upon Partial Termination, you will certify to NVIDIA in writing that the original and all stand-alone copies, in whole or in part, of the APEX SDK have been destroyed. Upon Partial Termination, you may continue to distribute any Physics Application that has been commercially released prior to such termination subject to prospective compliance with this Agreement. Upon any other termination, you will certify to NVIDIA in writing that the original and all copies, in whole or in part, of the APEX SDK have been destroyed, including those portions contained within any unshipped Physics Applications.

13. Governing Law. This Agreement will be governed by the laws of the United States of America to the extent that they apply and otherwise by the laws of the State of California, without reference to principles of conflicts of law.

14. Export. You agree and certify that no portion of the APEX SDK nor any other technical data received from NVIDIA will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If you have rightfully obtained the APEX SDK outside of the United States, you agree that you will not re-export any portion of the APEX SDK nor any other technical data received from NVIDIA, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the APEX SDK.

15. Assignment. You may not sublicense, assign or transfer this Agreement or the APEX SDK except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign or transfer any of the rights, duties or obligations hereunder is null and void.

16. Survival. The parties agree that where the context of any provision indicates an intent that it will survive the term of this Agreement, then it will survive. All terms of this Agreement survive Partial Termination except Sections 2(a) and (b).

17. Entire Agreement. This Agreement contains the parties’ entire agreement regarding your use of the APEX SDK and may be amended only in writing signed by both parties.

Copyright © 2012 NVIDIA Corporation. All rights reserved.

US AND INTERNATIONAL PATENTS PENDING.