# MICROSOFT GAME DEVELOPMENT KIT LICENSE AGREEMENT
**Last Updated: September 26, 2023**
This Microsoft Game Development Kit License Agreement (the "Agreement") is between Microsoft Corporation, a Washington corporation, or one of its affiliates ("Microsoft") and the party accepting this Agreement by clicking the box indicating acceptance ("Licensee"). By clicking the box indicating acceptance, Licensee hereby agrees to the terms of this Agreement and the Microsoft Privacy Statement set forth at https://go.microsoft.com/fwlink/?LinkId=521839,, and Licensee represents that they have the authority to enter into this Agreement. The Agreement is effective on the date Licensee clicks the box indicating acceptance ("Effective Date").
## SECTION 1 PURPOSE
This Agreement sets forth the terms and conditions under which Microsoft will license rights to use the GDK, certain software and documentation to Licensee for the Purpose.
## SECTION 2 DEFINITIONS
(a) **"Affiliate(s)"** means any legal entity that directly or indirectly owns, is owned by, or is commonly owned with a party. "Own" means having more than 50% ownership or the right to direct the management of the entity.
(b) **"Data Protection Law"** means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to Microsoft or Licensee, relating to data security, protection, Processing, and/or privacy, and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
(c) **"Download Site"** means docs.microsoft.com or another web site, portal or other electronic transmission or communications forum hosted or authorized by Microsoft and/or its Affiliates that contains information and/or software related to the GDK and that Microsoft and/or its Affiliates may make available to Licensee from time to time.
(d) **"Feedback"** means suggestions, comments, ideas, and all other types of information.
(e) **"Independent Contractor"** means an entity separately contracted by Licensee to assist in the development of a Microsoft Windows Title. An Independent Contractor will be required to enter into its own Microsoft Game Development Kit License Agreement to perform as an Independent Contractor to develop such Microsoft Windows Title for Licensee.
(f) **"Licensed Publisher"** means an entity that has entered into a Publisher License Agreement and/or other like agreement to publish a Microsoft Windows Title on the Microsoft Windows Platform.
(g) **"Microsoft Corporation"** means a multinational corporation that develops, manufactures, licenses and supports a wide range of products and services.
(h) **"Microsoft Game Development Kit" ("GDK")** means the alpha, beta and final versions of operating system software, online services, development tools, extensions and documentation licensed and provided by Microsoft and/or its Affiliates to Licensee pursuant to this Agreement as part of the GDK as well as supplements and updates thereto and/or subsequent versions thereof, including without limitation all information available for review or download at the Download Site or other forum Microsoft and/or its Affiliates may make available to the Licensee in connection with this Agreement.
(i) **"Microsoft Windows Platform"** means personal computers or other devices running Windows OS where a Microsoft Windows Title can run and be distributed to customers by Microsoft, its Affiliates and/or a Licensed Publisher.
(j) **"Microsoft Windows Title"** means a software product intended to run on the Microsoft Windows Platform and be distributed to customers by Microsoft, its Affiliates and/or a Licensed Publisher.
(k) **"Personal Data"** means any information relating to an identified or identifiable natural person ("Data Subject") and any other data or information that constitutes personal data or personal information under any applicable Data Protection Law.
(l) **“Process” or “Processing”** means any operation or set of operations that a party performs on Personal Data, including collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, restriction, erasure or destruction. “Processed” will have a corresponding meaning.
(m) **“Purpose”** means the reason that Licensee is licensing the GDK as set forth in Section 3(a).
(n) **“Redistributable Code”** means the software components included in the GDK that are identified as such by Microsoft and/or its Affiliates. Early pre-release versions of the GDK might not include any Redistributable Code. Redistributable Code may be provided to Licensee in machine-readable object code format (the “Object Code Version”) and/or human-readable source code format (the “Source Code Version”).
(o) **“Sample Code”** means the software components included in the GDK that are identified as such by Microsoft and/or its Affiliates.
(p) **“Subcontractor”** means designated individuals or companies working onsite or in a facility that is under the discretion and control of the Licensee to assist in the development of the Microsoft Windows Title.
(q) **“Third Party Software”** means any third-party software component included in the GDK that is provided under a separate license (instead of this Agreement) or that is subject to supplemental license terms (in addition to this Agreement). Solely with respect to such Third-Party Software, such separate or supplemental license terms supersede the license terms in this Agreement if the terms conflict. License terms, notices, and acknowledgements, if any, for the Third-Party Software may be accessible in an accompanying notices file.
(r) **“Tool(s)”** means all software components included in the GDK that are not Redistributable Code, Sample Code or Third-Party Software. Tools may be provided to Licensee in Object Code Version and/or Source Code Version.
## SECTION 3 GRANT OF LICENSE
(a) **Purpose.** Licensee is in the business of, among other things, developing and/or publishing Microsoft Windows Titles. Licensee is permitted to use the GDK solely to develop and test such Microsoft Windows Titles for the Microsoft Windows Platform. The Purpose does not include and shall not be deemed to include (i) development and testing of Microsoft Windows Titles or other software or products for platforms other than the Microsoft Windows Platform (including, but not limited to, Xbox Series consoles and their successor family of Microsoft Corporation’s game systems and Sony and Nintendo video game systems); or (ii) the publishing or commercialization of, or the distribution to end users of, Microsoft Windows Title(s) for the Microsoft Windows Platform or any other platform. For clarity, if and to the extent Licensee enters into a separate agreement with Microsoft and/or its Affiliates with respect to publishing, commercialization, or distribution of Microsoft Windows Title(s) on the Microsoft Windows Platform or other platform, Section 3(a(ii) shall not restrict any rights Licensee may have pursuant to such separate agreement.
(b) **License.** Subject to the terms and conditions contained in this Agreement, and conditioned on Licensee’s continuing compliance with this Agreement, Microsoft hereby grants to Licensee a nonexclusive, personal, nontransferable, and terminable license to:
(1) Use the GDK only as permitted herein and solely for the Purpose;
(2) Reproduce, modify and make derivative works of the Sample Code, only for incorporation into one or more Microsoft Windows Titles;
(3) Use the Source Code Version of Redistributable Code in source code form internally only, and only to create and maintain one or more Microsoft Windows Titles;
(4) Reproduce and incorporate the Object Code Version of Redistributable Code in object code form only in and as an inseparable part of the Microsoft Windows Titles; and
(5) Reproduce, modify, and make derivative works of the Source Code Version of Tools, but only for internal use, and only to create and maintain one or more Microsoft Windows Titles.
(c) **Identification.** Microsoft and/or its Affiliates will identify the software components of the GDK as being Sample Code, Redistributable Code, Third Party Software, or Tools by identifying the software file as belonging to one of these groups. If any software file is not identified, then unless Microsoft and/or its Affiliates identify the file as otherwise, it shall be a Tool.
(d) **Installation.** Licensee may install and use the GDK on Licensee’s devices solely for the Purpose. Further, Licensee may install and use the GDK on Licensee’s internal corporate network, if applicable, for the Purpose. Licensee may make one backup copy of the GDK, which such backup may only be used to reinstall the GDK. Each such installation and permitted copy must be complete and include all copyright and trademark notices.
(e) **Updates.** Microsoft is not obligated to provide maintenance, technical support, or updates to Licensee for the GDK. However, Microsoft may, in its sole discretion, provide new versions, technical support, updates or supplements for the GDK (“Updates”). Any such Updates will be deemed to be part of the GDK and governed by this Agreement. Updates may be provided via the Download Site or another delivery mechanism chosen by Microsoft. The use of the Download Site and any other delivery mechanism may be subject to additional terms of use. Any passwords given to Licensee to access or activate the GDK or any Updates thereto are strictly confidential. They must not be shared with any third party without Microsoft’s prior written consent.
(f) **Feedback.** Either party may provide suggestions, comments or other Feedback to the other with respect to the other’s products and services. Feedback is voluntary and, even if designated as confidential, the recipient may use it for any purpose without obligation of any kind. Any and all Feedback shall be subject to the Feedback provider’s underlying rights in the subject matter of such Feedback. The party receiving Feedback will not disclose the source of Feedback without the consent of the party providing it. Unless the parties specifically agree in writing, Feedback will not create any confidentiality obligation.
(g) Nothing in this Agreement restricts Microsoft’s right to directly or indirectly acquire, license, develop, produce, distribute, market, or promote products that compete with Licensee.
## SECTION 4 LICENSE CONDITIONS
(a) **Additional Microsoft Products; Online Services**
(1) Licensee acknowledges and agrees that certain components of the GDK may include other Microsoft products. The use of those other Microsoft Products (but not the GDK) is governed by the separate terms (other than this Agreement and the Microsoft Services Agreement (MSA)) and privacy policies applicable to such other Microsoft products. Licensee is responsible for reading and complying with the terms of the MSA.
(2) Licensee understands that some features of the GDK may provide access to, or rely on, online services (“Online Services”). The use of Online Services (but not the GDK) is governed by the separate terms and privacy policies in the Microsoft Services Agreement set forth at http://go.microsoft.com/fwlink/?linkid=398923. Please read them. In some cases, Licensee will not receive a separate notice that features of the GDK access or rely on Online Services. By using Online Services, Licensee consents to the terms of the Microsoft Services Agreement. The Online Services may not be available in all regions. Licensee shall not use the Online Services in any way that could harm the Online Services or impair any other party’s use of the Online Services. Licensee shall not use the Online Services to try to gain unauthorized access to any service, data, account, or network by any means.
(b) **Conditions of Use.** Licensee will:
(1) Take all reasonable and proper care of the GDK;
(2) Comply with all instructions relating to the use, security or operation of the GDK, at its expense, according to any written instructions given by Microsoft;
(3) Only use the GDK in a manner that will not result in legal liability for Microsoft;
(4) Comply with the obligations imposed on it under Data Protection Law;
(5) Ensure that any additional separate software licensed and provided to Licensee by Microsoft in addition to the GDK, if any, can only be used with the GDK to develop a Microsoft Windows Title; and
(6) Comply with the security requirements set forth in Section 20.
(c) **Reverse Engineering.** Licensee may use and study the design, performance and operation of the GDK solely for the Purpose. However, Licensee will not, directly or indirectly, reverse engineer, decompile, disassemble, or aid or assist any third party in the reverse engineering, decompiling or disassembling of, all or any part of the GDK. This limitation does not apply to the extent that such activity is expressly allowed by applicable law. If such reverse engineering is allowed by law, Licensee will give Microsoft written notice prior to starting such activity at the notice address set forth in Section 16 below. The notice must:
(1) Include sufficient information about Licensee’s intended method of reverse engineering;
(2) Set forth the purpose of the reverse engineering and the legal authority for such activity; and
(3) Give Microsoft a reasonable period of time to evaluate and legally challenge the activity. Licensee will not start any reverse engineering activity until such time as any legal challenge is resolved in Licensee’s favor.
For the purposes of this subsection (c), reverse engineering includes sniffing, decompiling, disassembly, peeling semiconductor components, or otherwise deriving or attempting to derive source code.
(d) **Use Restrictions.** Except as expressly set forth herein, Licensee acknowledges and agrees that Licensee will not:
(1) reproduce, distribute, or modify the Tools, or make derivative works based on the Tools, without Microsoft’s prior written consent (which Microsoft may grant or withhold in its absolute discretion);
(2) modify, or make derivative works based on, the Redistributable Code;
(3) alter any copyright, trademark, or patent notice set forth in any portion of the GDK;
(4) make, or allow anyone else to make, a copy of the GDK, or any software, tools, documentation or other components included in the GDK, unless expressly licensed to do so in Section 3;
(5) use the GDK or any portion thereof to create any product (including, but not limited to, a modification of the GDK or a derivative work of the GDK) that infringes or misappropriates a third party’s intellectual property rights;
(6) publish the GDK for others to copy;
(7) rent, lease, or lend the GDK;
(8) use Microsoft’s trademarks in Licensee’s Microsoft Windows Titles or in any way that suggests Licensee’s Microsoft Windows Titles come from or are endorsed by Microsoft;
(9) use the GDK in connection with development and testing of software or products for any platform other than the Microsoft Windows Platform (including, without limitation, Xbox Series consoles and their successor family of Microsoft Corporation’s game systems and Sony and Nintendo video game consoles);
(10) include Redistributable Code in malicious, deceptive, or unlawful programs or to propagate malware;
(11) disclose to any third party the results of any evaluation of the GDK, or any portion thereof, without first obtaining Microsoft’s prior written consent;
(12) work around or otherwise attempt to circumvent any technical limitations in the GDK;
(13) use the GDK to engage in fraudulent or dishonest activities or use the GDK in any way that is against the law;
(14) remove, minimize, block or modify any notices of Microsoft or its suppliers in the GDK; or
(15) use the GDK in any manner not expressly licensed under this Agreement.
(e) Licensee understands that the software is licensed not sold. All rights granted to Licensee pursuant to this Agreement are expressly granted by license only, and except as expressly set forth herein, Microsoft does not directly, by implication, estoppel or otherwise, grant to Licensee any other rights or licenses hereunder. No title shall pass to Licensee in any of the components of the GDK. Microsoft shall own all modifications of, and derivative works based on, the Source Code Version of Tools (excluding derivative works based on elements of such source code that are either publicly available or lawfully obtained from third parties), including, without limitation, all patent, copyright, trade secret, trademarks and other intellectual property rights, and Licensee shall provide Microsoft a copy, in source code and object formats, of any and all such modifications or derivative works thereof.
(f) **No Commercialization.** Licensee acknowledges, understands, and agrees that no Microsoft Windows Title may be published, distributed to end users, or otherwise commercialized except by Microsoft, its Affiliates, and/or a Licensed Publisher.
(g) **No Transfer or Copying.** Licensee shall not transfer, share, publish, make available, copy to, lease the GDK to, or otherwise permit any other person or third party to access all or any portion of the GDK. If and to the extent an organization desires for its employees, Subcontractors, and/or Independent Contractors to access and use the GDK in connection with testing and development of Microsoft Windows Titles on behalf of such organization, each individual employee, Subcontractor, and/or Independent Contractor must enter into their own Microsoft Game Development Kit License Agreement or similar agreement with Microsoft to obtain access to the GDK.
(h) **Excluded Licenses.** The license granted to Licensee hereunder does not include any license, right, power or authority to subject the GDK or derivative works thereof in whole or in part to any of the terms of an Excluded License. “Excluded License” means any software license requiring, as a condition of use, modification and/or distribution that the GDK or other software combined and/or distributed with it be:
1. Disclosed or distributed in source code form;
2. Licensed for the purpose of making derivative works; or
3. Redistributable at no charge.
(i) **Third Party Software.** Certain software components included in the GDK (including Redistributable Code, Sample Code, Third Party Software and Tools) may be owned by certain third parties and/or may be based on industry recognized standards or software programs published by industry recognized standards bodies, and certain third parties may claim to own patents, copyrights, and other intellectual property rights over such software components and over implementation of those standards. Licensee acknowledges and agrees that this Agreement only grants a license to use the software components as described in the Agreement and it is Licensee’s responsibility to secure any additional license rights.
(j) The GDK (including the software and all other components thereof) is licensed “as is” and Licensee bears the risk of using it.
## SECTION 5 COMPLIANCE
Licensee represents and warrants to Microsoft that Licensee’s use of the GDK is in compliance with this Agreement and applicable law, including, without limitation, Licensee’s adherence to and/or execution of privacy obligations under the terms of this Agreement and as required by applicable laws.
## SECTION 6 NATURE OF DATA AND SCOPE OF PROCESSING
(a) **Personal Data Processing and Handling.**
(1) The GDK may collect information about Licensee’s and its employees’ and Subcontractors’ use of the software and send that information to Microsoft in accordance with the Microsoft Privacy Statement located at https://privacy.microsoft.com. Microsoft may also periodically provide such information back to Licensee for purposes of assisting Licensee with the development of the Microsoft Windows Titles.
(2) With respect to the Personal Data transferred under this Agreement, Microsoft and Licensee agree that both are independent data Controllers, and not joint Controllers, as defined in the GDPR, of the Personal Data that each independently Processes. “Controller” means the entity that determines the purpose and means of Processing of Personal Data.
(3) In the event Microsoft provides Personal Data to Licensee, subject to a Data Subject’s additional authorization or instructions to the contrary, (i) Licensee will only use such Personal Data in connection with its direct business relationship with Microsoft, which is limited to the provision of games and game-related services; (ii) Licensee will not transfer, Share, or Sell the Personal Data to any third party except to contractually bound Processors or sub-processors operating on behalf of Licensee (where “Share” and “Sell” are defined by the California Consumer Privacy Act or other applicable Data Protection Law); (iii) where Microsoft transfers to Licensee data that is considered deidentified data under applicable Data Protection Law, Licensee will not (and will ensure that its sub-processors will not) attempt to reidentify the data such that it would become Personal Data; and (iv) Licensee will notify Microsoft if it determines that it can no longer meet its obligations under applicable Data Protection Law. To the extent the California Consumer Privacy Act applies to any Personal Data, Licensee hereby certifies that it understands the above restrictions and will comply with them.
(4) Upon (i) termination of the Agreement for cause, (ii) investigation of Licensee by Microsoft or a third party for mishandling of data, or (iii) commencement of an Inquiry (defined below), Licensee will, at Microsoft’s request, immediately delete or return to Microsoft all copies of Personal Data shared under this Agreement except to the extent Licensee has the right or obligation under applicable Data Protection Law to retain Personal Data after termination. If requested by Microsoft, Licensee shall confirm deletion in writing within 30 days. “Inquiry” means any type of request or inquiry from a governmental, legislative, judicial, law enforcement, or regulatory authority (e.g., the Federal Trade Commission, the Attorney General of a U.S. state, or a European data protection authority), or an actual or potential claim, inquiry, or complaint in connection with the parties’ Processing of Personal Data shared under this Agreement.
(5) Licensee must ensure its network, operating system, software, databases, and other relevant computer systems are properly built, configured, and operated to store, manage and protect any Personal Data received or obtained from Microsoft in a secure manner and in compliance with Data Protection Law. Each party will take all measures required in accordance with good industry practice and by Data Protection Law relating to data security (including pursuant to Article 32 of the GDPR).
(b) **International Personal Data Transfer Requirements.** Some jurisdictions require that an entity transferring Personal Data to a recipient in another jurisdiction take extra measures to ensure that the Personal Data has special protections if the law of the recipient’s jurisdiction does not protect Personal Data in a manner equivalent to the transferring entity’s jurisdiction (an “International Data Transfer Mechanism”). The parties will comply with any International Data Transfer Mechanism that may be required by applicable Data Protection Law, including the Standard Contractual Clauses. “Standard Contractual Clauses” means the European Union standard contractual clauses for international transfers from the European Economic Area to third countries, Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
The parties further agree as follows:
(1) If the International Data Transfer Mechanism on which the parties rely is invalidated or superseded, the parties will work together in good faith to find a suitable alternative.
(2) With respect to Personal Data of Data Subjects located in a jurisdiction that requires an International Data Transfer Mechanism (e.g., the EEA, Switzerland, or the United Kingdom) that Microsoft transfers to Licensee or permits Licensee to access, the parties agree that by executing this Agreement they also execute the Standard Contractual Clauses, which will be incorporated by reference and form an integral part of this Agreement. The parties agree that, with respect to the elements of the Standard Contractual Clauses that require the parties’ input, Schedule 1 contains information relevant to the Standard Contractual Clauses’ Annexes. The parties agree that, for Personal Data of Data Subjects in the United Kingdom, Switzerland, or another country specified in Schedule 1, they adopt the modifications to the Standard Contractual Clauses listed in Schedule 1 to adapt the Standard Contractual Clauses to local law, as applicable.
(c) **Schedule 1.** Schedule 1 describes the purposes of the parties’ Processing, the types or categories of Personal Data involved in the Processing, the categories of Data Subjects affected by the Processing, and the parties’ statuses under relevant Data Protection Law.
(d) **Attestation of Compliance.** Upon Microsoft’s request, which shall be no more than once per calendar year, Licensee will provide a written attestation to Microsoft that confirms and attests to Licensee’s compliance with the terms of this Section 6 and Data Protection Law.
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## SECTION 7 TERM, TERMINATION AND EFFECT OF TERMINATION
(b) Microsoft may terminate this Agreement with or without cause at any time by posting notice of such termination on the Download Site, which such notice shall take effect ten (10) business days thereafter.
(c) Upon the termination of this Agreement, Licensee’s limited right to access and use the GDK for the Purpose shall be revoked immediately, and Licensee shall delete and destroy any and all copies of the GDK, including any and all components and materials included therein, in Licensee’s custody or control.
Subject to Licensee’s compliance with the terms of this Agreement, Licensee may publicly disclose and discuss any components included in the GDK solely in connection with the Purpose. If and to the extent that Microsoft makes any non-public software, hardware, or other components available to Licensee, Licensee agrees to comply with any terms applicable to such non-public software, hardware, or components, including, but not limited to, any confidentiality obligations as may be set forth in a Non-Disclosure Agreement and/or in another agreement between Microsoft and Licensee governing Microsoft’s provision of and Licensee’s use of such non-public software, hardware, or components.
All title and intellectual property rights in and to the GDK, including any and all components thereof, are owned by Microsoft, its Affiliates, licensors or suppliers, including all tangible and intangible components thereof and any copies Licensee is permitted to make. Microsoft reserves all rights not expressly granted to Licensee.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE GDK, AND ANY SUPPORT SERVICES (IF ANY) RELATED TO THE GDK ARE PROVIDED AS IS AND WITH ALL FAULTS, AND MICROSOFT, ITS AFFILIATES, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF NEGLIGENCE, AND WORKMANLIKE EFFORT, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THERE IS ALSO NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY OF, OR ARISING OUT OF USE OR PERFORMANCE OF, THE GDK, INCLUDING ANY AND ALL COMPONENTS THEREOF, REMAINS WITH LICENSEE.
(a) Limitation of Liability. Microsoft’s entire liability under this Agreement is limited to Five U.S. Dollars (US$5.00). This is Licensee’s exclusive remedy. This limit applies to the maximum extent allowed by law, even if any remedy fails its essential purpose. As used in this Section 11(a), “Microsoft” includes Microsoft, its Affiliates, licensors and suppliers.
(b) Exclusion of Damages. To the maximum extent permitted by applicable law, in no event shall Microsoft, its Affiliates, licensors, or suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or the loss of confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the GDK, including any and all components thereof, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Microsoft, its Affiliates, licensors or any supplier, and even if Microsoft, its Affiliates, licensors, or any supplier has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Licensee.
Licensee hereby agrees to indemnify, defend, and hold harmless Microsoft, its Affiliates, licensors and suppliers against and from any and all claims, demands, costs, liabilities, losses, expenses and damages (including reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or relating to (a) any personal injury and/or property or any other damage arising from any unauthorized use of the GDK, including any and all components thereof, provided to Licensee hereunder; and/or (b) any actual or alleged infringement or misappropriation of a third-party’s intellectual property or other proprietary rights by any Microsoft Windows Title or other software or product (including, but not limited to, any modification of the GDK or any derivative work of the GDK) created or developed by Licensee using or otherwise referencing the GDK or any portion thereof.
(a) The laws of the State of Washington govern this Agreement. If federal jurisdiction exists, the parties consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, the parties consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington.
(b) If either Microsoft or Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.
The GDK is subject to U.S. export laws and regulations. Licensee agrees to comply with all applicable international and national laws, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on Microsoft export restrictions, see www.microsoft.com/exporting. Licensee represents and warrants that Licensee is not a resident of or located in, nor will Licensee access or use the GDK from, any U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea).
(a) **Entire Agreement.** This Agreement is the entire agreement between the parties regarding the GDK, including any and all components thereof. It replaces all prior agreements, communications and representations between the parties regarding its subject matter. This Agreement is effective immediately upon Licensee clicking the box to accept the terms and conditions herein.
(b) **Changes.** Microsoft may revise the terms of this Agreement from time to time. The most current version of this Agreement, which will be posted on the Download Site, will govern Licensee’s access to and use of the GDK. It is Licensee’s responsibility to check the Download Site regularly for the most current version of this Agreement. By continuing to use the GDK after revisions become effective, Licensee agrees to be bound by the modified Agreement.
(c) **Conflicts.** In the event of a conflict between the terms of this Agreement and the terms of any other agreement between Licensee and Microsoft relating to development, testing, or commercialization of Microsoft Windows Titles, the terms of such other agreement shall control.
Notices to Microsoft may be provided either by electronic or physical mail at the address set forth below. Microsoft may change the persons to whom notices will be sent by posting notice of such updated persons on the Download Site.
Licensee may not assign this Agreement or any portion thereof, to any third party unless Microsoft expressly consents to such assignment in writing. Microsoft will have the right to assign this Agreement and/or any portion thereof as Microsoft may deem appropriate. For the purposes of this Agreement, a merger, consolidation, or other corporate reorganization, or a transfer or sale of a controlling interest in a party’s stock, or of all or substantially all of its assets shall be deemed to be an assignment. This Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
Licensee’s threatened or actual unauthorized use of the GDK, including any and all components thereof, may result in immediate and irreparable damage to Microsoft for which there is no adequate remedy at law. In such event, Microsoft will be entitled to appropriate injunctive relief, without the necessity of posting bond or other security.
Unless Microsoft Corporation is a party to this Agreement, the parties agree that Microsoft Corporation is a third-party beneficiary to this Agreement and shall have the right to enforce the terms of the Agreement.
The following security obligations apply to Licensee and its employees and Subcontractors: The GDK, including all other components thereof is available to the public but solely to the extent an individual enters into a Microsoft Game Development Kit License Agreement with Microsoft. Accordingly, Licensee must, and ensure that its employees and Subcontractors, protect the GDK in accordance with the terms of this Agreement.
(a) **NO COPYING.** Licensee must not (a) copy the GDK or any other components thereof or (b) make such copies available to (i) members of Licensee’s organization; (ii) members of Licensee’s household, including family members and friends; (iii) third parties; or (iv) public Internet websites, such as blogs, newsgroups, or forums. If Licensee copies the GDK or any components thereof, Microsoft will take appropriate action, which may include revocation of access to the GDK including all components thereof; termination of the Agreement and/or Licensee’s relationship with Microsoft; and criminal prosecution.
This Agreement describes certain legal rights. Licensee may have other rights, including consumer rights, under the laws of Licensee’s state or country. This Agreement does not change those other rights if the laws of your state or country do not permit it to do so. For example, if you acquired the GDK in one of the below regions, or mandatory country law applies, then the following provisions apply to you:
(a) **Australia.** Licensee has statutory guarantees under the Australian Consumer Law and nothing in this Agreement is intended to affect those rights.
i. **Warranty.** The properly licensed GDK will perform substantially as described in any Microsoft materials that accompany the GDK. However, Microsoft gives no contractual guarantee in relation to the GDK.
ii. **Limitation of Liability.** In the case of intentional conduct, gross negligence, claims based on the Products Liability Act, as well as in cases of death or personal or physical injury, Microsoft is liable according to statutory law.
Subject to the foregoing clause ii., Microsoft will only be liable for slight negligence if Microsoft is in breach of such material contractual obligations, the fulfillment of which facilitate the due performance of this Agreement, the breach of which would endanger the purpose of this Agreement and the compliance with which a party may constantly trust in (so-called “cardinal obligations”). In other cases of slight negligence, Microsoft will not be liable for slight negligence.
| Processing Activity | Status of the Parties | Categories of Personal Data that May Be Processed | Categories of Sensitive Data that May Be Processed | Applicable SCCs Module |
| :--- | :--- | :--- | :--- | :--- |
| Licensee collects or receives Personal Data as a Controller. | Microsoft is a Controller. <br> Licensee is a Controller. | - Location data <br> - IP address <br> - Device preferences and personalization <br> - Service usage for websites, webpage click tracking <br> - Social media data and social graph relationships <br> - Activity data from connected devices such as fitness monitors <br> - Contact data such as name, address, phone number, email address, date of birth, dependent and emergency contacts <br> - Fraud and risk assessment, background check <br> - Metadata and telemetry <br> - Customer originated support ticket <br> - Billing data <br> - e-commerce data <br> - Event registration <br> - Training <br> - Globally Unique Identified (GUID) <br> - Passport User ID or Unique Identifier (PUID) <br> - Hashed End-User Identifiable Information (EUII)-Session IDs <br> - Device IDs <br> - Diagnostic Data <br> - Log Data <br> - Crash Dump Data | - Data related to the age of the user <br> - Data related to children | Module 1 |
1.2 **Retention Periods**: As Controllers, the parties retain Personal Data for as long as they have a business purpose for it or for the longest time allowable by applicable law.
- **“Data Exporter"** means the party that (1) has a corporate presence or other stable arrangement in a jurisdiction that requires an International Data Transfer Mechanism; and (2) transfers Personal Data, or makes Personal Data available to, the Data Importer.
- **“Data Importer”** means the party that is (1) located in a jurisdiction that is not the same as the Data Exporter’s jurisdiction; and (2) receives Personal Data from the Data Exporter or is able to access Personal Data made available by the Data Exporter.
2.1 Clause 7: The parties do not adopt the optional docking clause.
2.2 Clause 11(a): The parties do not select the independent dispute resolution option.
2.3 Clause 17: The parties select Option 1. The parties agree that the governing jurisdiction is Ireland.
2.4 Clause 18: The parties agree that the forum is Ireland.
2.5 Annex I(A): The data exporter is the Data Exporter (defined above) and the data importer is the Data Importer (defined above).
2.6 Annex I(B): The parties agree that Schedule 1 describes the transfer.
2.7 Annex I(C): The competent supervisory authority is the Irish Data Protection Commission.
2.8 Annex II: The parties agree that Schedule 1, Section 4, describes the technical and organizational measures applicable to the transfer.
3. **For the purpose of localizing the Standard Contractual Clauses:**
##### 3.1 **Switzerland**
3.1.1 The parties adopt the GDPR standard for all data transfers.
3.1.2 Clause 13 and Annex I(C): The competent authorities under Clause 13, and in Annex I(C), are the Federal Data Protection and Information Commissioner and, concurrently, the EEA member state authority identified above.
3.1.3 Clause 17: The parties agree that the governing jurisdiction is Ireland.
3.1.4 Clause 18: The parties agree that the forum is Ireland. The parties agree to interpret the Standard Contractual Clauses so that Data Subjects in Switzerland are able to sue for their rights in Switzerland in accordance with Clause 18(c).
3.1.5 The parties agree to interpret the Standard Contractual Clauses so that “Data Subjects” includes information about Swiss legal entities until the revised Federal Act on Data Protection becomes operative.
##### 3.2 **United Kingdom**
3.2.1 The parties agree that the Standard Contractual Clauses are deemed amended to the extent necessary that they operate for transfers from the United Kingdom to a Third Country and provide appropriate safeguards for transfers according to Article 46 of the United Kingdom General Data Protection Regulation (“UK GDPR”). Such amendments include changing references to the GDPR to the UK GDPR and changing references to EU Member States to the United Kingdom.
3.2.2 Clause 17: The parties agree that the governing jurisdiction is the United Kingdom.
3.2.3 Clause 18: The parties agree that the forum is the courts of England and Wales. The parties agree that Data Subjects may bring legal proceedings against either party in the courts of any country in the United Kingdom.
3.2.4 In addition, transfers from the United Kingdom shall be governed by the IDTA implemented by Microsoft. For purposes of the Agreement, the “IDTA” means the international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers issued by the UK Information Commissioner’s Office under S119A(1) of the UK Data Protection Act 2018.
4. **Technical and Organizational Security Measures.** Licensee will comply with the technical and organizational measures as set out in Section 6(a)(5) of the Agreement.
