OnLive EMEA S.à r.l TERMS OF SERVICE Last Updated 7 December 2011 Welcome to the OnLive® Game Service (the "Service" or "SERVICE"), a service of OnLive EMEA s.à r.l (collectively, "OnLive" or "ONLIVE" or "we" or "us"). The OnLive Terms of Service (the "Terms") govern our relationship with anyone who accesses the Service by any method or means, including but not limited to access of the Service through the OnLive Game System ("OGS"), which includes the MicroConsole™ TV adapter (the "MicroConsole TV adapter") and the Gamepad Controller ("Controller"). Please read the Terms, the Privacy Policy and the OnLive Community Guidelines carefully. By clicking "I Agree," you agree to be bound by the Terms, the OnLive Privacy Policy, and the OnLive Community Guidelines. Your use of the Service is only for purposes that are permitted by these Terms. Any use or access of the Service by any means other than those authorised by these Terms is prohibited unless specifically agreed with OnLive. On an ongoing basis, OnLive makes changes and additions to the Service including but not limited to: new games, features, and functionality. OnLive will provide reasonable notice of all material changes and additions to the Service. Your continued use of the Service after such notification will indicate your acceptance of any such changes and additions and your continued acceptance of the Terms, the OnLive Privacy Policy, and the OnLive Community Guidelines. You may not use the Service if you do not agree to be, or are unable to be, bound by the Terms, the OnLive Privacy Policy, and the OnLive Community Guidelines. 1. Privacy The OnLive Privacy Policy tells you about the way we handle and protect your Personal Information (as defined in the OnLive Privacy Policy) when you use the Service. We ask that you review and agree to the OnLive Privacy Policy before sharing Personal Information on the Service. 2. Community Guidelines In order to provide a safe and welcoming environment for all of our users, we have established certain ground rules regarding your behavior on the Service that are specified in the OnLive Community Guidelines. The OnLive Community Guidelines apply to your use of the Service and any and all User Generated Content (as defined in Section 9 below) that you contribute to the Service. OnLive reserves the right to terminate or suspend your OnLive Service Account ("Account") if you breach the OnLive Community Guidelines. 3. Eligibility In order to register for an Account on the Service, you must be at least 18 years of age, be an emancipated minor or have reached the age of majority in your country of residence, and be a current resident of the United Kingdom ("Account Holder"). As an Account Holder, you represent and warrant to OnLive that you meet the eligibility criteria in the preceding sentence. 4. Accepting and Changing the Terms You become bound by the Terms by (a) clicking to agree to the Terms; (b) downloading to a desktop, laptop, mobile device or obtaining through any other means on any other device or medium, the OnLive Application Software without the authorization of OnLive; (c) installing the OnLive Application Software without the authorization of OnLive; or (d) otherwise accessing the Service without the authorization of OnLive. We may change the Terms at any time in our sole discretion. We will provide you with reasonable notice of any changes to the Terms. Continued use of the Service after the notice period will constitute acceptance of the Terms. 5. Third Party Terms Buying or accessing certain third party content on the Service may require you to review, and accept or decline certain third party disclosures, policies, and agreements including but not limited to third party end user license agreements, privacy policies, and terms of service ("Third Party Terms"). You may be presented with Third Party Terms prior to your purchase or use of third party content, or wherever OnLive, in its sole discretion, deems presentation of Third Party Terms is reasonably necessary or legally required to provide proper notice to you. You can accept Third Party Terms by (a) entering your password to purchase access to or to use the third party content on the Service or (b) accessing the purchased or selected third party content through the Service having been given reasonable notice of the Third Party Terms. If you do not accept Third Party Terms in the manner described but you nevertheless gain unauthorized access to the Service, you will be deemed to have accepted Third Party Terms upon such access of the third party content. If you choose to decline any Third Party Terms, you may do so by not purchasing the third party content referenced by the Third Party Terms or otherwise declining the Third Party Terms as provided by OnLive or the third party providing the Terms. Please be advised that some Third Party Terms may state or imply you have certain rights to a physical product, rights to download, or install third party content to a local machine, and/or other rights associated with physical possession or control of third party content. Such statements within Third Party Terms may not be applicable to use of the third party content on the Service. In all Third Party Terms, the user agreeing to, and/or the user presented with Third Party Terms, will in all cases continue to be the consumer end user of the third party content. Unless expressly agreed by OnLive, OnLive shall not be the intended or actual licensee, user, or recipient of any Third Party Terms. 6. Accounts You do not have the right to share your Account with any third party, except as you provide pursuant to the Parental Controls features. You are solely responsible for all activity on your Account, including violations of the Terms by any third party that accesses the Service through your Account, and for the security of your Account. You also agree to the following: • You agree to provide and maintain an active email address through which you can be reached for the duration of your Account. You agree to provide accurate and up-to-date email address, contact and billing information to OnLive. • You agree to use the Service only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions. • You agree to notify OnLive of any unauthorized use of your Account, any impending or threatened event that may negatively impact the Service, security of the Service, or any other violation of the Terms known to you, including by third parties that have accessed the Service through your Account. • You agree to not make any attempt to access the Service via any means or interface other than those which have been provided to you by OnLive, unless you have been granted explicit written permission by an authorized representative of OnLive to do otherwise. • You agree to not engage in any activity that interferes with or disrupts, degrades, harms or threatens to harm the Service, security of the Service, our servers, or the use of the Service by any of our users. • You agree to not represent to any third party that you are an OnLive employee or authorized representative of OnLive. • You agree to not register a Player Tag (i.e. OnLive user name) that is vulgar, offensive, libelous, slanderous, discriminatory or obscene or that violates any law, or otherwise breaches the Terms or Community Guidelines. • You agree to not transfer or share your Account with any other party except as permitted by the Parental Controls features as explained below. • You agree not to transfer or share your OnLive Service login information with any other party. • You agree to not tamper with in any manner, disassemble, reverse engineer, or otherwise modify any hardware or software of the Service made available to you. • The Service includes parental controls features ("Parental Controls") which restrict access to certain content and features which may be deemed inappropriate for Minors (youth between 13 and up to 18). The Parental Controls can only be accessed with a parental control passcode, and you agree not to share this parental control passcode with any third parties (including the Minor for whom the Parental Controls are activated). You may provide access to your Account to any member of your household (each an "Authorised User"), provided the following conditions are met: • You do not allow access to your Account to any person under the age of 13 years old; • You do not provide the details of your parental control passcode to any third party, including any Authorised User; • You expressly bring the OnLive Privacy Policy to the attention of each Authorised User; and expressly inform each Authorised User that their personal data, which may be disclosed through OnLive Friends and Voice Chat features, may be collected by OnLive and disclosed to other users while on the Service. You, as the Account Holder, assume responsibility for all activity on the Account from Authorised Users, including Authorised User activity when Parental Controls are enabled. Account Holders who set up Parental Controls and allow Minors to use an Account are liable for all activities of such Minor and all public disclosures of information made by such Minor. OnLive reserves the right to terminate or suspend your Account for breach of the account guidelines set out in this Section 6. 7. OnLive Application Software The OnLive Application Software and other related materials (collectively, the "Materials") made accessible to you in connection with the Service will be licensed under, and subject to, the terms and conditions of the OnLive End User License Agreement ("OnLive EULA"). 8. Our Content With the exception of User Generated Content (as defined in Section 9 below), as between you and OnLive or its affiliates, subsidiaries, licensors, or suppliers retain title to and ownership of everything on or used in connection with the Service, including, but not limited to, text; images; graphics; logos; audio and video content; visual, auditory, tactile, and motion user interfaces, and any OnLive hardware, software, or computer code (collectively, "Content"). This also includes, without limitation, the structure, design, animation, video, effects, overall "look and feel" and arrangement of Content on the Service. With regard to any gaming statistics like scores, rankings, log in/log out times, length of gameplay, and your presence on the Service, OnLive owns that content exclusively and/or shares ownership of that content with third party content providers and may grant any of our affiliates, subsidiaries, licensors, partners, or suppliers permission to use such content, including the use and display of such content publicly for the purposes of leaderboards, enhancing multiplayer gameplay, tournaments, and marketing and promotion efforts. Subject to license restrictions and these Terms, certain Content on the Service may not be available to users accessing the Service through specific client devices (e.g. Macintosh, Windows PC, MicroConsole™ TV adapter, cell phones, tablet computers, Internet TVs, and set-top boxes). Such limitations will be specified in the Content descriptions provided prior to your purchase of any such Content, during the purchase process and/or in the EULA for any particular piece of Content which has such restrictions. OnLive owns patents, copyrights, trademarks, service marks, trade names, trade secrets, domain names and other intellectual property, and proprietary rights throughout the world in, or to, or associated with the Content and/or the Service (the "IP Rights"), and the Content and the Service are protected by the IP Rights and all other applicable intellectual property rights and laws. Subject to your compliance with the Terms, the OnLive Privacy Policy and the OnLive Community Guidelines, OnLive grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license under the IP Rights to use the Service in accordance with the Terms, for the duration of your membership and/or access to the Service, solely for your personal and non-commercial use. You may not modify, reproduce, distribute, create derivative works or adaptations of, publish, perform, display, transmit or in any way exploit any of the Content in whole or in part except as expressly authorized by OnLive. You may not, in whole or in part, reverse engineer, derive (or attempt to derive) any source code, modify, disassemble, decompile, or remove any proprietary notices or labels from the Service or any hardware or software associated or used in connection with the Service. Except as expressly and unambiguously provided herein, OnLive does not grant you any express or implied rights in or to the Service, any Content or any software associated or used in connection with the Service. Except as expressly provided herein (or in the Privacy Policy) you may not transfer, publish, display, disclose or make available any reproductions of the Service or the Content to any other parties in any way, including, without limitation, by uploading videos or images to file sharing sites, sharing or making available screen captures of the Service or any Content, or sharing or making available any source code or executable code of any software associated or used in connection with the Service. You may not rent, lease, license or sublicense the Service to others, or use the Service in any manner for the benefit of any third party. 9. User Generated Content Any time you post a message or communication on an OnLive sponsored forum, or create, post, upload, submit, share or distribute any content through the use of the Service, including the OnLive User Community Forums, or play a game on the Service, including any user name, tag, handle, motto, avatar video or still, and including contributions via video, voice and text chat, text messaging, forums, message boards, whether within or outside a game (any such message, communication, content or play, collectively, "User Generated Content" or "UGC"), you grant OnLive a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, fully paid-up license (with the right to sublicense) to use, reproduce, distribute, display, perform, transmit, modify, edit, create derivative works from, and otherwise exploit such UGC, in any form, format, or medium now known or later developed. You represent and warrant that you have the right to grant these rights to OnLive and that you will not post any content or links, user-generated or otherwise, that infringe, misappropriate or violate any privacy, intellectual property, or any other rights of any party, or which violates our Community Guidelines, or that is vulgar, offensive, libelous, slanderous, discriminatory or obscene or that violates any law. You hereby waive all "moral rights" with respect to all UGC and all copyrights therein to the extent such moral rights can be waived under the existing law of any jurisdiction, and, to the extent such moral rights cannot be waived, you warrant that you will not seek to enforce such moral rights against OnLive. UGC specifically excludes any gaming and Service usage statistics like scores, rankings, log in/log out times, length of gameplay, and your presence on the Service. OnLive owns gaming and Service usage statistics exclusively and/or shares ownership of that content with third party content providers and may grant any of our affiliates, subsidiaries, licensors, partners, or supplier's permission to use such content, including the use and display of such content publicly for the purposes of leaderboards, enhancing multiplayer gameplay, tournaments, and marketing and promotion efforts. OnLive reserves the right to pre-screen, monitor, moderate, and delete any UGC that you or other OnLive users submit to the Service, including, but not limited to, posts made to public forums. However, we have no obligation to do so, and you may be exposed to content you find vulgar, offensive, libelous, slanderous, discriminatory, obscene or is in violation of a law. You acknowledge that OnLive is not an author, publisher or editor of any UGC posted on the Service or of any information provided by another content provider on the Service. 10. Voice Chat Voice chat communications within the Service should not be considered private. Voice chat communications may be heard by others as part of gameplay or in other contexts, for example, as part of Spectating. OnLive is under no obligation to monitor user communications but reserves the right to act on reports of misconduct or abuse of such privileges at OnLive's sole discretion. Because voice chat and other communications may be viewed and/or heard, users should avoid revealing any personally identifiable information. 11. OnLive Purchases and Billing Offers are only valid within the United Kingdom. Offers cannot be combined unless expressly stated. Some game purchases may not be available for all platforms and different prices may be charged for different platforms (e.g., PC, Mac, and MicroConsole TV adapter). Promotion codes and coupons have no cash value. Subject to any OnLive promotional offers you may accept, OnLive may require payment of fees for the Service membership offer you select (the "Membership Plan"), third party content, and any additional items and services that may be available through the Service. You may have to register for an Account and sign up for a Membership Plan in order to access the various features of the Service and pay for any third party content. All purchases are charged in GBP. By registering for an Account on the Service, you represent that you are at least 18 years of age and have reached the age of majority in your country of residence. A credit card is not required to sign up for the Service. However, if you select a Membership Plan that requires a credit card, you represent that you are authorized to use that credit card. You must also be authorized to use any subsequent credit card in the event you change or update the credit card you used to register. By signing up for a Membership Plan, you expressly authorize OnLive to charge you for services and products purchased under your Account including but not limited to required or optional fees associated with maintaining an active Membership Plan in good standing (the "Membership Fees"), third party content, and any additional items and services that may be available through the Service. Membership Plans may require one-time or recurring Membership Fees. If so, OnLive will bill you in accordance with the terms of your Membership Plan. You acknowledge that the Service (including the sale of a right to play games through it) is a supply of services to you by OnLive, which commences once you register for the Service and pay the Membership Fees or once you purchase the right to play a particular game. OnLive will have commenced the supply of services to you by granting you access to the Service or the relevant game, and you will lose your right to cancel the purchase under Directive 97/7/EC as implemented in your country of residence. Notwithstanding the above, the purchase of an OGS or any other hardware will constitute the supply of goods, and you will have seven days (beginning the day after you receive the goods) in which you may choose to cancel the contract. If you provide notice of such cancellation to OnLive, and return the merchandise and we will provide you with a full refund for the purchase. Prices for any third party content are subject to change at any time without notice. OnLive reserves the right to change the pricing, billing, Membership Plans and Membership Fees for the Service at any time. In the event OnLive makes any such changes to the Service, we will provide you with at least thirty (30) calendar days notice via the email address you have provided in your Account. If you do not consent to these changes, you must stop using the Service and may close your Account. In the event your Account is closed or suspended for any reason, including because you do not consent to the changes to the changes to the pricing, billing, Membership Plans and Membership Fees for the Service, OnLive reserves the right to charge you for any costs, surcharges, or debts still pending on your Account. You may not register a new OnLive Account until all costs, surcharges, and debts are settled for any prior OnLive Account that you have used, or have been used with the same credit card or email address. 12. OnLive Game System: MicroConsole TV Adapter and OnLive Gamepad Controller The Terms also apply to use of the OnLive Game System, which includes the MicroConsole TV adapter and OnLive Gamepad Controller ("Controller") to access the Service. Use of the MicroConsole TV adapter or Controller confirms your agreement to: • Accept any software updates and upgrades sent to the MicroConsole TV adapter and/or Controller. • Accept any different or additional terms applicable to the third party components included with the MicroConsole TV adapter and/or Controller. • Not tamper with in any manner, disassemble, reverse engineer, or otherwise modify the MicroConsole TV adapter and/or Controller. • Save as permitted by law, not derive (or attempt to derive), modify, decompile, or remove any software code from the MicroConsole TV adapter and/or Controller. • Not remove any proprietary notices or labels from the MicroConsole TV adapter and/or Controller. • Save as permitted by law, use any software in the MicroConsole TV adapter only in executable form and solely in conjunction with the MicroConsole TV adapter. Basic information relating to setup, installation and support is shipped with the MicroConsole TV adapter and Controller, and further details are found in the Support section of the OnLive website. 13. Suspending Your Account You may suspend (i.e. temporarily deactivate) your Account at any time, for any or no reason, for up to twelve (12) months by contacting OnLive CS from the Support section of the OnLive website. Also, OnLive may suspend an Account, or resume a suspended Account, under certain conditions specified in the Terms, including, for example, the expiration or renewal of your Service membership term. OnLive may suspend your Account if it is inactive (i.e. you have not successfully logged in to the Service using your Account, or you have not made any transactions associated with your Account) for twelve (12) months. You or OnLive may resume (i.e. reactivate) a suspended Account, if the Account is in good standing and any outstanding concerns have been addressed, at any time during the suspension. Suspending your Account will temporarily disable your access to the Service using the suspended Account, and temporarily disable your access to all content or services on the Service that the Account would otherwise have access to, if any, whether purchased or not. Resuming your Account will restore your access to the suspended Account, and restore your access to content and services that are still available to you after the time that has elapsed during the suspension period or provide access to content and services that became available to you during the suspension. During this time, OnLive will retain all of your information, including your Personal Information, just as if the Account is in active use so as to enable OnLive to (a) keep track of any content or service expirations or activations during the suspension period, and (b) reactivate your Account if it is resumed during that twelve (12) month period. During the suspension period you, or OnLive under certain conditions specified in the Terms of Service, may close your Account per the terms described below in Closing Your Account. OnLive will close your Account if it not resumed within twelve (12) months of the last suspension. If you decide to suspend your Account, please contact OnLive CS from the Support section of the OnLive website. The Terms will continue to apply to you in full from the time you accept the Terms, as set forth in the "Accepting and Changing the Terms" section herein, throughout your Account suspension and until your Account is closed by either you or OnLive. 14. Closing Your Account CLOSING YOUR ACCOUNT WILL RESULT IN PERMANENT LOSS OF ACCESS, CONTENT, SERVICES AND VALUE ON THE ONLIVE SERVICE. ONLIVE URGES YOU TO CONSIDER SUSPENDING YOUR ACCOUNT, PER THE "SUSPENDING YOUR ACCOUNT" SECTION ABOVE. RATHER THAN CLOSING YOUR ACCOUNT, PLEASE READ THIS "CLOSING YOUR ACCOUNT" SECTION CAREFULLY BEFORE PROCEEDING WITH CLOSURE. You may close your Account at any time, however, OnLive may close an Account if the Account is suspended and not resumed within the twelve (12) month maximum suspension period, as detailed in the "Suspending Your Account" section, above, or under certain conditions specified in the Terms of Service. Closing your Account will immediately and permanently terminate your access to the Service using the closed Account; immediately and permanently terminate your access to all content, messages, services on the Service that the closed Account would otherwise have access to or could derive value from; and result in your immediate and permanent forfeiture of any coupons, access passes, credits, or anything that may be of value directly or indirectly associated with the Account, if any, whether purchased or not. Any remaining payments due on the Account will remain due and collectable after the Account is closed until they are paid. If you decide to close your Account, please contact OnLive CS from the Support section of the OnLive website. Within six (6) months after closing your Account or after any payments due on the Account are paid, whichever is later, we will either delete or securely encrypt your Personal Information except your email address, which we will keep in order to determine whether to send further marketing-related emails. We will also keep all financial and transactional records that are required for accounting, revenue-reporting and tax-reporting purposes. Your non-Personal Information, such as your Player Tag and password, will not be deleted. We will also keep information about your use of the Services or Websites including, but not limited to, data about your gameplay, session times and durations, and use of the Service, though we will disassociate such information from your Personal Information. Please note that even after you remove information from your Account or delete your Account entirely, information that was shared with other users may continue to exist on the Service. If you engage in any repeated or objectionable misconduct, to be determined in accordance with these Terms and the OnLive Community Guidelines, OnLive reserves the right to either suspend or close your Account, in OnLive's sole discretion, immediately and without notice as set forth in the "Suspending Your Account" and "Closing Your Account" sections herein. Please refer to the OnLive Community Guidelines for examples of objectionable conduct. The Terms will continue to apply to you in full from the time you accept the Terms, as set forth in the "Accepting and Changing the Terms" section herein, until your Account is closed by either you or OnLive. 15. Survival Sections 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 of the Terms shall survive any expiration or termination of the Terms, or your Account. Expiration or termination of the Terms or your Account will not affect any accrued rights or liabilities under these Terms. The Privacy Policy will survive termination of the Terms, or your Account in accordance with its terms. 16. Copyright Policy OnLive respects the intellectual property of others and we expect our users to do the same. If you are a copyright owner or authorized to act on behalf of a copyright owner and believe that any content or material provided through or in connection with the Service infringes any copyright you own or for which you are authorized to act on behalf of the copyright owner, please provide OnLive's Agent for Notice with written or electronic notice containing the following: Notice of Alleged Infringement ("Notice") 1. A description of the copyrighted work(s) you claim has been infringed. 2. A description of the allegedly infringing content or material, including the location on the Service of the allegedly infringing content or material with sufficient detail to enable us to locate it on the Service. 3. Your address, telephone number, and email address. 4. Both of the following statements outlined in the Notice: a. "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law." b. "I hereby state that the information in this Notice is accurate and that I am the owner of, or authorized to act on behalf of the owner of, an exclusive right that is allegedly infringed." 5. Your full legal name and your electronic or physical signature. Please send all of the above to: Copyright Agent c/o OnLive, Inc. 181 Lytton Ave. Palo Alto, CA 94301 Main: (650) 543-5500 Fax: (650) 543-5595 Or by email to: copyrightenforcement@onlive.com Any Personal Information provided to OnLive pursuant to this section 16 shall be held and processed by OnLive in accordance with the OnLive Privacy Policy. 17. Disputes and Governing Law and Jurisdiction You agree to handle any disputes between you and OnLive in accordance with the policy outlined below, the OnLive Privacy Policy or as otherwise agreed in writing between you and OnLive. As an alternative to litigation, we will consider reasonable requests to resolve any dispute through dispute resolution procedures such as arbitration or mediation. The construction, validity and performance of these Terms and all non-contractual obligations arising from or connected with these Terms, the OnLive Privacy Policy, the OnLive Community Guidelines or the Service shall be governed by English law. Any action or proceeding brought to adjudicate any dispute related to the Terms, OnLive Privacy Policy, OnLive Community Guidelines, or the Service shall be subject to the non-exclusive jurisdiction of the English courts, except as otherwise agreed by the parties in writing. 18. Injunctive Relief If you breach or indicate your intention to breach the Terms (including, without limitation, in a manner that infringes, misappropriates or violates any intellectual property or privacy rights or may cause irreparable or continuing harm), OnLive may seek injunctive relief against you, or any other remedy available under applicable law. 19. Representations and Warranties You represent and warrant that (i) you have the full power and authority to enter and perform under the Terms, (ii) the execution and performance of your obligations under the Terms does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) the Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions. 20. Indemnification You agree to defend, indemnify and hold OnLive, its directors, officers, employees, contractors, affiliates, suppliers, and licensors (collectively "OnLive Indemnified Parties") harmless from any liability, damage, settlement, loss, or expense (including, without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought or made against any of the OnLive Indemnified Parties arising out of or relating to any actions by you that infringes any copyright, trademark, trade secret, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy. If you have to indemnify any of the OnLive Indemnified Parties under this Section, OnLive and/or the relevant OnLive Indemnified Parties will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without OnLive's prior express written permission. 21. INFORMATION NOTICE OnLive provides the Service on an "as is" and "as available" basis, though OnLive will provide the Service to you with reasonable skill and due care. OnLive does not represent or warrant that the Service or its use (i) will be uninterrupted; or (ii) will be free of inaccuracies or errors. OnLive utilizes the internet, which by its very nature can be unreliable and unpredictable. Internet connection and reliability problems may reduce service quality and in some cases make the service unavailable. In addition to an internet connection, the service also requires suitable, capable, reliable, and fully operational devices and software, which are all outside of OnLive's control. OnLive is not responsible for any internet, telephone, wireless, or other fees associated with your use or access of any service, product, or content through the OnLive Service, including your use or access of any free service, product, or content through the OnLive Service. 22. LIMITATION OF LIABILITY TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ONLIVE (OR ANY OF ITS AFFILIATES OR LICENSORS) NOR ANY OF THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LICENSORS, CUSTOMERS, AGENTS OR REPRESENTATIVES OF ONLIVE HAVE ANY LIABILITY OF ANY KIND OR NATURE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR LOSS OF ANY CONFIDENTIAL OR OTHER INFORMATION OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR INABILITY TO USE THE MATERIALS OR THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. OnLive will not be liable for any liability associated with provision of the service or failure to provide the Service associated with infrastructure (including, without limitation, the internet), devices and software outside of OnLive's control such as computers, displays, televisions, input devices, switches, routers, firewalls, operating systems, and browsers. Nothing in these Terms will exclude or limit either party's liability for (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused by its negligence (iii) under the indemnity in section 19; or (iv) any other liability which cannot be excluded by law. 23. Severability If any provision of the Terms is held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. This shall, in no way, affect the validity and enforceability of all other provisions in the Terms. 24. Miscellaneous You and OnLive are independent parties, and nothing in the Terms constitutes a partnership or joint venture between you and OnLive or makes either party the agent of the other. Unless otherwise specified herein, the Terms, the OnLive Privacy Policy, and the OnLive Community Guidelines constitute the entire agreement between you and OnLive with respect to the subject matter hereof and supersede all prior or contemporaneous communications, negotiations and proposals with respect to such subject matter. You may not assign or transfer the Terms or any of your rights or obligations under the Terms (whether by operation of law or otherwise) without the prior written consent of OnLive. 25. Beta Program OnLive may from time-to-time establish a Beta program ("Beta") to give certain users an opportunity to test and experience additional new features of the Service, pay for and use third party content, and gather feedback on the new features and content on the Service. Any and all information made available to you by virtue of your participation in a Beta, whether furnished to you directly by OnLive or learned by you through your access to a Beta, is confidential to OnLive. For example, you may not do any Tweets, Facebook posts, or other online posting of details, and you may not post or otherwise communicate screenshots, or videos, or any other content whatsoever about your participation in a Beta. You may disclose that you are a participant in a Beta, but you may not discuss with or disclose to any third party any information you learn through a Beta including your opinions regarding a Beta. If you are chosen to participate in a Beta, you will: • Carry out the testing in connection with a Beta personally. You will not display or provide access to the Service to any other person. • Use your best efforts to secure your system and the Beta against unauthorized access or disclosure. • Never disclose any information about a Beta, including, without limitation, any information about the Service provided or made available by OnLive or any hardware, software, screenshots, video, or other code or scripts to any third party. • Never discuss gameplay, quality of service, or bugs encountered while using a Beta anywhere outside of OnLive's provided in-site forums and customer support. • Delete and destroy all information related to a Beta in your possession or control immediately upon the request of OnLive, and confirm deletion and destruction of such information if requested to do so by OnLive. OnLive notes that any breach by you of this confidentiality provision will cause irreparable harm to OnLive, and OnLive may seek injunctive relief to prevent the breach or threatened breach of your obligations. As a Beta user, you agree to: • Test and evaluate a Beta and/or devices to be used with the Beta, including, but not limited to, audiovisual content, features, functionality, capabilities, operation, Service performance and device performance. • Inform OnLive of any bugs or other defects you encounter in connection with the Service. • Receive all software updates and upgrades, if any that OnLive sends to the MicroConsole TV adapter, to your computer, or to any hardware or software associated or used in connection with the Service, including the OnLive Gamepad Controller. • Comply with reasonable requests and instructions from OnLive in connection with Beta, which may be provided from time to time during a Beta, including, but not limited to, requests and instructions to test or evaluate specific aspects of the Service. • Provide OnLive with your comments, feedback, evaluations, analyses, suggestions and recommendations regarding a Beta ("Feedback"), all as voluntarily provided by you or as may otherwise be requested by OnLive. Your participation in a Beta is strictly voluntary and for your enjoyment. While your participation in a Beta is helpful, you understand that it is not a vital part of the development of the Service so as to give you any right to compensation or payment. Participation in one phase of a Beta does not entitle you to participation in any other phase of a Beta, if any, or to any compensation or payment with respect to the Service. You acknowledge and agree that your participation in a Beta (or any phase of a Beta) does not give you any claim of ownership to any part of the Service. All Feedback that you provide or make available to OnLive during a Beta, however communicated by you and whether at OnLive's request or not, shall be the sole and exclusive property of OnLive, and you hereby irrevocably assign to OnLive all of your right, title and interest in and to such Feedback, including, without limitation, any and all intellectual property rights in or to any such Feedback. Without limiting the generality of the preceding sentence, you agree that OnLive and its successors, assigns and licensees shall have the perpetual and irrevocable right to reproduce, modify and otherwise use and exploit all of the Feedback (and any and all portions and derivatives thereof) in any manner now known or hereafter devised for any purposes, including, but not limited to, in connection with the development and exploitation of the Service or any other product or service, without any compensation or the provision of any credit to you. You hereby waive all moral rights with respect to all Feedback and all copyrights therein to and, the extent such moral rights cannot be waived, you warrant that you will not enforce such moral rights against OnLive. All other terms in the OnLive Terms of Service continue to apply to your participation in a Beta.