Open Gaming License

D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 1 of 7 Last Updated: February 27, 2009 Dungeons & Dragons 4th Edition Game System License This Game System License Agreement (the “License”) is offered by Wizards of the Coast LLC, a Delaware limited liability company (“Wizards”). The License applies to the use in third party publications of certain proprietary elements of Wizards’ Dungeons & Dragons 4th Edition roleplaying game products (“4E”), specifically, the 4E Player’s Handbook, Dungeon Master’s Guide, Monster Manual, Player’s Handbook 2. Monster Manual 2, and Adventurer’s Vault (collectively, “Core Rulebooks”). Please read this License carefully. By returning the Statement of Acceptance as presented in the file “SOA.pdf” that is available for download at http://www.wizards.com/d20 (“Statement of Acceptance”), the person or entity named on the Statement of Acceptance (“Licensee”) expressly agrees to be bound by the terms of this License. 1. Effective Date. The License commences fourteen (14) days after the date Wizards receives Licensee’s completed Statement of Acceptance, provided the submitter of the Statement of Acceptance has not received a written notice from Wizards within such fourteen (14) day period declining to offer a License. Licensee represents and warrants that all information provided to Wizards on the Statement of Acceptance is accurate. Licensee will notify Wizards of any changes to the information provided on the Statement of Acceptance (including without limitation, name or address change) by submitting a corrected Statement of Acceptance within fourteen (14) days following the effective date of such change. Any failure by Licensee to so notify Wizards of corrections or updates to the information provided on the Statement of Acceptance will cause this License to terminate upon notice from Wizards. Notwithstanding the foregoing, except as otherwise provided in this License no Licensed Product (as defined below) will have a first on-sale date prior to October 1, 2008. 2. Updates or Revisions to License. Wizards may update or revise the License at any time in its sole discretion by posting the updated License on its website page located at http://www.wizards.com/d20. Wizards will indicate on the License the date it was last updated. Licensee is responsible for checking the License regularly for changes, and waives any right to receive specific notice of changes. Licensee’s continued use of any Licensed Materials (as defined below) after the “Last Updated” date above, including without limitation any publication or distribution of Licensed Products (as defined below), confirms Licensee’s acceptance of any changes to the License and Licensee shall be bound by such revised terms. If Licensee does not accept such changes, the License will terminate pursuant to Section 10.1. 3. Licensed Products. The license granted in Section 4 is for use solely in connection with Licensee’s publication, distribution, and sale of roleplaying games and roleplaying game supplements that contain the Licensed Materials and are published in a hardcover or soft-cover printed book format or in a single-download electronic book format (such as .pdf), and accessory products to the foregoing roleplaying games and roleplaying game supplements that are not otherwise listed as excluded in Section 5.5 (“Licensed Products”). 4. License Grant. Subject to Licensee’s compliance with all of the terms and conditions of the License, Wizards grants Licensee a non-exclusive, non-transferable, non-sublicenseable royalty-free, worldwide license to utilize the following materials (“Licensed Materials”) in Licensed Products, solely in the manner described herein and subject to the additional requirements, limitations and restrictions set forth herein and in Section 5: 4.1 4E References. Licensee may reprint the proprietary 4E reference terms, tables, and templates (each, a “4E Reference”) described in the 4E System Reference Document as presented in the file “SRD.pdf” that is available for download at http://www.wizards.com/d20 (“SRD”), incorporated herein by D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 2 of 7 reference. Licensee acknowledges that Wizards has previously defined each 4E Reference. Licensee will not define, redefine, or alter the definition of any 4E Reference in a Licensed Product. Without limiting the foregoing, Licensee may create original material that adds to the applicability of a 4E Reference, so long as this original material complies with the preceding sentence. Licensee will comply with all usage guidelines set forth in the SRD. Wizards may update or revise the SRD at any time in its sole discretion by posting the updated SRD on its website page located at http://www.wizards.com/d20. Wizards will indicate on the cover page of the SRD the date it was last updated. Licensee is responsible for checking the SRD regularly for changes, and waives any right to receive specific notice of changes. 4.2 Logo. Licensee must print Wizards’ proprietary “compatibility” service mark as presented in either of the files labeled “GSLLogo.pdf” and “GSLLogoBW.pdf” that are available for download at http://www.wizards.com/d20 (“Compatibility Logo”) on the lower left quadrant of the back cover of each Licensed Product and on the lower one-third (1/3) of the page in which the legal text described in Section 5.2 is located, or if a Licensed Product is made available only in an electronic format, the last page, and sized identically to the Compatibility Logo as shown in the files listed above. Licensee may additionally utilize the Compatibility Logo in advertisements and marketing materials (including without limitation, website listings and catalogs) for Licensed Products, provided, that such Compatibility Logo solely appears in the lower left quadrant of any such advertisement or marketing material; and is sized identically to the Compatibility Logo as shown in the files listed above. 4.3 Imagery. Except as expressly provided in Section 5.7, Licensee may utilize imagery and artwork contained in 4E solely to independently create and publish 2-D pictorial derivative works (“Derivative Imagery”) in a Licensed Product. 5. Requirements; Limitations 5.1 Use of Trademarks. Use of any trademarks included in the Licensed Materials is subject to Wizards’ trademark usage guidelines, as may be provided from time to time, and is limited to use solely to refer to 4E and the Core Rulebooks. Licensee will not use such trademarks in any other manner, and will not use any trademarks of Wizards other than pursuant to this License or another agreement between Wizards and Licensee. 5.2 Licensed Products Legal Text. Within the first three (3) non-cover pages of all Licensed Products, and, where practical, together with any other legal text supplied by Licensee, Licensee will include the following statements in at least ten-point font: DUNGEONS & DRAGONS, the DUNGEONS & DRAGONS Compatibility Logo, D&D, PLAYER’S HANDBOOK, PLAYER’S HANDBOOK 2, DUNGEON MASTER’S GUIDE, MONSTER MANUAL, MONSTER MANUAL 2, and ADVENTURER’S VAULT are trademarks of Wizards of the Coast in the USA and other countries and are used with permission. Certain materials, including 4E References in this publication, D&D core rules mechanics, and all D&D characters and their distinctive likenesses, are property of Wizards of the Coast, and are used with permission under the Dungeons & Dragons 4th Edition Game System License. All 4E References are listed in the 4E System Reference Document, available at www.wizards.com/d20. DUNGEONS & DRAGONS 4th Edition PLAYER’S HANDBOOK, written by Rob Heinsoo, Andy Collins, and James Wyatt; DUNGEON MASTER’S GUIDE, written by James Wyatt; and MONSTER MANUAL, written by Mike Mearls, Stephen Schubert and James Wyatt; PLAYER’S HANDBOOK 2, written by Jeremy Crawford, Mike Mearls, and James Wyatt; MONSTER MANUAL 2, written by Rob Heinsoo, and Chris Sims; Adventurer’s Vault, D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 3 of 7 written by Logan Bonner, Eytan Bernstein, and Chris Sims. © 2008, 2009 Wizards of the Coast. All rights reserved. 5.3 Advertising Legal Text. Licensee will include the following legal text in at least 8-point font in all advertisements and other marketing materials in which the Compatibility Logo appears pursuant to Section 4.2: DUNGEONS & DRAGONS Compatibility Logo ™ & © Wizards of the Coast in the USA and other countries. Used with permission. 5.4 First On-Sale Date. Licensee will ensure that no Licensed Product is first on sale to consumers prior to October 1, 2008. Wizards may terminate this License immediately upon notice to Licensee in the event that any sale of a Licensed Product is made, by any individual or entity, to a consumer prior to October 1, 2008. Without limiting the foregoing, Licensee may produce, publish, and distribute (a) marketing and promotional materials for Licensed Products, and (b) non-commercial Licensed Products (i.e. free), in accordance with the terms of this License prior to October 1, 2008. 5.5 Licensed Products. This License applies solely to Licensed Products as defined in Section 3 and to the specified uses set forth in Section 4. For the avoidance of doubt, and by way of example only, no Licensed Product will (a) include web sites, interactive products, miniatures, or character creators; (b) describe a process for creating a character or applying the effects of experience to a character; (c) use the terms “Core Rules” or “Core Rulebook” or variations thereof on its cover or title, in self-reference or in advertising or marketing thereof; (d) refer to any artwork, imagery or other depiction contained in a Core Rulebook; (e) reprint any material contained in a Core Rulebook except as explicitly provided in Section 4; or (f) be incorporated into another product that is itself not a Licensed Product (such as, by way of example only, a magazine or book compilation). 5.6 Reprinting. Licensee will not publish or reprint (a) the contents of the SRD in their entirety; or (b) definitions of any 4E References, whether or not similar to those listed in any product published by Wizards. 5.7 Imagery. For the avoidance of doubt and in addition to the provisions of Section 9 related to ownership and use of Wizards Intellectual Property (as defined therein), Licensee expressly acknowledges Wizards’ ownership of all imagery and artwork contained in 4E, and Licensee expressly agrees it will not reprint any such imagery or artwork without Wizards’ written permission. In addition, and without limiting the foregoing, Licensee will not reprint, publish, use, nor create Derivative Imagery of, any of the following proprietary characters (whether from 4E or any other products published by Wizards or TSR, Inc.): Balhannoth, Beholder, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind Flayer, Illithid, Slaad, Umber Hulk’ and Yuan-Ti. 6. Quality and Content Standards. The nature and quality of all Licensed Products will conform to the quality standards set by Wizards, as may be provided from time to time. At a minimum, the Licensed Products will conform to community standards of decency and appropriateness as determined by Wizards in its discretion. Without limiting the foregoing, no Licensed Products will depict in any text, graphical or other manner: (a) excessively graphic violence or gore; (b) sexual situations, sexual abuse, pornography, gratuitous nudity of human or humanoid forms, genitalia, or sexual activity; or (c) existing real-world minorities, nationalities, social castes, religious groups or practices, political preferences, genders, lifestyle preferences, or people with disabilities, as a group inferior to any D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 4 of 7 other group or in a way that promotes disrespect for those groups or practices, or that endorses those groups or practices over another. Without limiting the foregoing, Licensed Products will not contain any content that is unlawful, defamatory, harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable or that would infringe upon or violate the rights of any third party or constitute, encourage, or provide instructions for a criminal offense. 7. Compliance with Laws; Noninfringement. Licensee is solely responsible for ensuring that Licensed Products (a) comply with all applicable laws, regulations, orders and other requirements of any governmental authority in any territory in which Licensed Products are published, marketed, distributed, and/or sold; and (b) do not infringe upon or violate the rights of any third party. 8. Right of Review. Upon Wizards’ request, Licensee will supply samples of Licensed Products to Wizards sufficient for Wizards to ensure that such Licensed Products conform to the requirements of this License, including without limitation, Section 6 and Section 7. 9. Proprietary Rights. 9.1 Ownership. Licensee recognizes Wizards’ rights and interests in and to all Wizards Intellectual Property and that all rights therein, including good will pertaining thereto, belong exclusively to Wizards. Licensee acknowledges and agrees that its use of Licensed Materials inures to the benefit of Wizards. No right, title, or interest in the Licensed Materials or any Wizards Intellectual Property is transferred by this License. Licensee understands and agrees that it is not authorized to, and will not utilize, any Wizards Intellectual Property (other than Licensed Materials), including without limitation any trademarks owned by Wizards, except and unless Licensee has entered into a separate licensing agreement with Wizards authorizing such use. Licensee will not attack the title of Wizards in and to any Wizards Intellectual Property, nor will Licensee attack the validity of this License. “Wizards Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards, in each case whether arising under the laws of the United States or any other jurisdiction, including all rights of registration and renewal and causes of action for infringement or misappropriation related to any of the foregoing. For the avoidance of doubt, Wizards Intellectual Property includes all content contained within the Core Rulebooks and all Licensed Materials, including without limitation the SRD. 9.2 Third Party IP. To the extent any Licensed Product contains third party content or any content that is otherwise subject to the intellectual property rights of any third party, including without limitation any patents, copyrights, trademarks, rights of privacy or publicity (“Third Party IP”), then, as between Licensee and Wizards, Licensee is the licensee of all Third Party IP contained in such Licensed Product. Licensee will obtain all required licenses and permissions for its use of Third Party IP in the Licensed Products. 9.3 Protection of Wizards’ Rights. Licensee will assist Wizards to the extent necessary or as requested by Wizards to protect any of Wizards’ rights in and to Wizards Intellectual Property. Wizards will reimburse Licensee for any reasonable out-of-pocket costs incurred as a result of providing such assistance, provided that Wizards has approved such costs in advance. Licensee will not institute any suit or take any action on account of any such infringements or imitations, or otherwise institute any suit or take any action relating to Wizards Intellectual Property. Licensee will take no action that will harm, misuse or bring into disrepute the activities, properties or products of Wizards or Wizards Intellectual Property. D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 5 of 7 9.4 Remedies. Licensee recognizes and acknowledges that its breach of any of the covenants, agreements or undertakings hereunder with respect to use of the Licensed Materials, including without limitation trademark use requirements or quality standards, will cause Wizards irreparable damage which cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement of Wizards’ rights in Wizards Intellectual Property, thereby entitling Wizards to equitable remedies, costs and reasonable attorneys’ fees. 10. Termination and Effect. 10.1 Termination. Wizards may terminate this License and the rights granted hereunder automatically upon written notice to Licensee or upon posting on its website a termination of the GSL as applied to all licensees. Licensee may terminate its license hereunder for any reason (other than its own breach of the terms of this License) by either (a) ceasing all use of Licensed Materials, or (b) delivering to Wizards an executed “Termination Notice” as presented in the file “Termination.pdf” that is available for download at http://www.wizards.com/d20 (“Termination Notice”). 10.2 Survival. Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 (together with all other provisions that reasonably may be interpreted as surviving termination of this License) will survive the termination of this License. 10.3 Effect of Termination. Upon termination for any reason other than a termination resulting from Licensee’s delivery of a valid Termination Notice, Licensee will immediately cease all use of the Licensed Materials and will destroy all inventory and marketing materials in Licensee’s possession bearing the Compatibility Logo. Licensee will remove the Compatibility Logo from all advertising, web sites, and other materials. Licensee will solely bear all costs related to carrying out this provision (in addition to any other provision) of the License. Wizards may, in its sole discretion and upon written agreement between Wizards and Licensee, extend this License for those Licensed Products that otherwise comply with the terms of this License. Upon termination resulting from Licensee’s delivery of a valid Termination Notice, Licensee will have six (6) months from the date listed on the Termination Notice (“Termination Date”) to use (as authorized hereunder) all Licensed Products, and advertisements for Licensed Products, in Licensee’s possession as of the Termination Date. Licensee may not produce new Licensed Products (including without limitation, reprints of existing Licensed Products), nor other authorized materials with the Compatibility Logo after the Termination Date. 10.4 Injunctive Relief. Licensee acknowledges and agrees that noncompliance with the terms of this License may cause irreparable injury to Wizards for which Wizards will not have an adequate remedy at law, and that Wizards will therefore be entitled to apply to a court for extraordinary relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, without necessity of posting bond or security. The existence of these rights will not preclude Wizards from pursuing any other rights and remedies at law or in equity that Wizards may have, including recovery of damages, and each and every remedy will be cumulative and in addition to every other remedy provided hereunder or available at law or in equity. Licensee will be responsible for all legal costs, including Wizards’ attorneys’ fees, associated with any action required by Wizards to enforce the terms of this License. 11. Representations. Licensee represents and warrants that: (a) Licensee is the sole author and owner of the Licensed Products; and, to the extent a Licensed Product contains any material contributed by a third party or any other Third Party IP, Licensee has obtained all necessary rights, licenses and/or permissions to use such Third Party IP in such Licensed Product; D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 6 of 7 (b) Licensee has full power and authority to enter into and perform its obligations under this License; (c) this License does not conflict with any other contract or prior material commitment made by Licensee; (d) no Licensed Product infringes upon or violates any statutory or common law copyright or other intellectual property, contract, property or other right of a third party; (e) no Licensed Product invades the right of privacy of any person, nor contains any matter libelous or otherwise in contravention of the rights of any third party; and (f) Licensee will comply with all applicable laws, regulations, orders and other requirements of any governmental authority in its performance under this License. 12 Limitation of Liability. THIS LICENSE AND THE RIGHTS PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND WIZARDS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WIZARDS SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT RECIPIENT MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. WIZARDS WILL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF THIS AGREEMENT. 13. Indemnification. Licensee will defend and indemnify Wizards and its affiliates, and their respective employees, directors and representatives, against any claim or action brought by a third party, to the extent relating to any demands arising directly or indirectly out of or relating to (a) the Licensed Products, including without limitation, any material contained therein that is alleged to be scandalous, libelous, unlawful, or infringing or violating any copyright, right of privacy, proprietary right, or any other right whatsoever; (b) the breach or alleged breach of any of Licensee’s representations or warranties; or (c) Licensee’s actions or inactions related to this License. Licensee will pay any award against Wizards or its affiliates (or their respective employees, directors or representatives) and will reimburse Wizards for any other damages and liabilities incurred by Wizards and any costs and attorneys’ fees reasonably incurred by Wizards and/or its affiliates (or their respective employees, directors or representatives) resulting from any such claim or action. 14. Relationship of Parties. This License will not be construed as creating an agency, partnership, joint venture or any other form of legal association between or among Licensee and Wizards, and Licensee will not represent to the contrary, whether expressly, by implication, appearance or otherwise. 15. No Assignment. Licensee may not assign this License, in whole or in part. 16. No Waiver; Construction. Failure by Wizards to enforce any provision of this License will not be deemed a waiver of future enforcement of that or any other provision. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this License. 17. Independent Development. Nothing in this License will impair Wizards’ right to acquire, license, develop, have others develop for it, market and/or distribute materials or products that contain concepts, D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 7 of 7 storylines, characters, images or other content substantially similar to, or otherwise competing with, Licensed Products. 18. Choice of Law; Jurisdiction. This License will be governed by the laws of the State of Washington, USA, without reference to its choice of law rules. Licensee irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located at King County, Washington with respect to any claim or suit brought by Licensee arising out of or related to this License, and Licensee agrees not to commence or prosecute any such claim or suit other than in the aforementioned courts. LICENSEE EXPRESSLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY DISPUTE, CLAIM OR CAUSE OF ACTION RELATED TO OR ARISING OUT OF THIS LICENSE. 19. Severability. If any part of this License is declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity of the remainder of this License. 20. Entire Agreement; Integration. This Agreement sets forth the entire current agreement of the parties with respect to its subject matter and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter, and can only be amended or modified by Wizards.