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dreamweaver

2006-12-18, 21:14:20

NDA:

ATARI BETA TESTING AGREEMENT
April 3, 2005

Thank you for agreeing to participate in the beta testing program for Test Drive Unlimited (the "Game") to be published by Atari, Inc. or its affiliate ("Atari") and developed by Eden Games. This is an unusual opportunity for you to experience an exciting game or range of games before its/their release to the general public. This document shall serve as an agreement (the "Agreement") between you and Atari with regard to your participation in the beta testing program for the Game. Please read it carefully.

1. Testing Services. You will have the opportunity to access and play the Game. Atari requires that you provide feedback regarding your game-play experience, including issues such as usability, bug reports, overall impressions, and any other information relating to the Game (the "Feedback"). If you fail to provide adequate Feedback, Atari may terminate this Agreement. You agree that you shall receive no compensation for participating in the beta testing program. You understand and acknowledge that Atari may use built-in tracking features to obtain information regarding use of the beta test site, and agree that this information is the property of Atari.

2. Limited License. You are entitled to access, download or install, and operate the Game solely for the purposes of performing your obligations under this Agreement. You may not sell, license, or transfer the Game, or reproductions of the Game, to other parties in any way. You may download or install, and operate only one copy of the relevant Game on a single terminal. You may not network the Game or otherwise use the Game on more than one computer or computer terminal at the same time, except that you may, for the purposes of participating in this beta test, connect online to the Game.

3. Term. This Agreement shall commence on the date above, and shall continue in effect until you have completed testing the Game and provided all Feedback to Atari, or until the initial commercial release of the Game, or until terminated by Atari. Atari may terminate this Agreement at any time without notice to you.

4. Facilities. All your testing shall be done at your own facilities, and all necessary supplies, including appropriate computer equipment, shall be supplied by you. Atari agrees to provide to you appropriate software and access codes to Atari's beta test site, as may be reasonably necessary in order for you to test the Game and perform your obligations under this Agreement.

5. Protection of Confidential Information. During the course of performing your obligations under this Agreement, you may have access to computer software, game concepts, storylines, methods, features, business methods or other technical or business information which is not generally known and which is proprietary to Atari or to parties affiliated with Atari ("Confidential Information"). You agree to treat as Confidential Information all information concerning the Game or of which you are otherwise made aware in connection with performing your obligations under this Agreement, including without limitation, the Feedback, and any technical or business information Atari may provide to you in connection with this Agreement, regardless of whether it is specifically designated as confidential and regardless of whether it is in written, oral, electronic, or other form. The Confidential Information may include, without limitation, trade secrets, know-how, inventions, game interfaces, technical data or specifications, testing methods, business or financial information, research and development activities, product and marketing plans, and customer and supplier information. You agree that you shall maintain all Confidential Information in strict confidence; you will not disclose Confidential Information to anyone other than an Atari employee or an Eden Games employee, or discuss Confidential Information with anyone except within the game itself or on the official beta boards; and will use all Confidential Information only for the purposes stated in this Agreement. You agree to maintain all the Confidential Information in confidence during the term and after termination of this Agreement, and agree not to disclose or permit access by any third party to any Confidential Information, unless Atari in writing expressly permits you to do so.

6. Ownership. You agree that all right, title, and interest to the Feedback, and any inventions relating to an improvement of the Game conceived or made as a result of your participation shall be Atari's property, and may be used and disclosed by Atari for any purpose. To the extent that any portion of your Feedback is protectable by copyright, you agree that it has been specially ordered and commissioned by Atari and is a "work made for hire", and that Atari shall be considered the "author" of the Feedback and the sole and exclusive owner throughout the world of copyright in the Feedback. In the event that any portion of the Feedback is protectable by copyright but does not qualify as a "work made for hire", you hereby assign and agree to assign to Atari all right, title, and interest in and to the copyright in the Feedback or in any portion of the Feedback. All right, title, and interest to the Game remains the property of Atari or Eden Games or their licensors, and is protected by copyright and other intellectual property laws.

7. No Alterations/Return of Material. You shall not alter or remove any proprietary legend or notice from any Confidential Information, the Game, or any other material supplied to you by Atari, or attempt to copy, modify, transfer, decompile or reverse engineer any Confidential Information, the Game, or other such material. Upon Atari's request during the term of this Agreement, and upon termination of this Agreement, you agree to turn over to Atari all copies of the Feedback and all copies of documents or other media in any form, written or mechanical, which contain Confidential Information, whether created by you or furnished to you by Atari.

8. Remedies. You acknowledge that if you breach any of the provisions of Paragraphs 5 or 7, Atari would suffer irreparable damage. You therefore agree that if you do breach any of these provisions, in addition to provable damages and reasonable attorneys' fees, Atari shall be entitled to enjoin such breach and to obtain specific performance of such provisions in any court of competent jurisdiction.

9. LIMITED WARRANTY. THE GAME SHALL BE PROVIDED TO YOU ON AN AS IS BASIS ONLY. ATARI, AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE GAME. ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY THAT THE GAME ARE FIT FOR A PARTICULAR PURPOSE, AND THE IMPLIED WARRANTY OF MERCHANTABILITY, ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.

10. LIMITATION OF LIABILITIES. ATARI, AND ITS LICENSORS, SUPPLIERS AND/OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, PROMOTION AND MARKETING OF THE GAME, SHALL NOT BE LIABLE, FOR ANY REASON WHATSOEVER, FOR ANY DAMAGES OF ANY KIND, INCLUDING INCIDENTAL, CONSEQUENTIAL, TORT, CONTRACT, OR ANY DIRECT OR GENERAL DAMAGES, THAT YOU MIGHT INCUR AS A RESULT OF YOUR USE AND TESTING OF THE GAME. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. Miscellaneous. You agree that you shall be acting as an independent contractor and shall not be considered, or represent yourself as, an agent, employee, joint venturer, or partner of Atari. This Agreement shall be binding upon and inure to the benefit of Atari's respective successors and assigns, however, you may not assign this Agreement, in whole or in part, without Atari's prior written consent. No waiver of any default, condition or breach of this Agreement shall constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement shall be governed by the laws of the State of New York and you and Atari both agree to submit to the jurisdiction of, and waive any objections to the venue of, the state and federal courts of the State of New York. This Agreement represents the entire agreement between you and Atari with respect to the beta testing.

If you understand these terms and these terms are acceptable, please indicate your agreement and your intent to be legally bound by them by clicking on the "I AGREE" button below. We look forward to working with you, and thank you for your participation.

Atari, Inc.