La Confrérie des Traducteurs

The Elder Scrolls V: Skyrim®: Dawnguard™ PRIVATE BETA TRIAL AGREEMENT

This Agreement (the “Agreement”), by and between Bethesda Softworks LLC, on its own behalf and on behalf of its parent, ZeniMax Media Inc. both Delaware companies, with its principal place of business at 1370 Piccard Drive, Rockville, Maryland 20850 (“Bethesda”), and You (“Reviewer”), relates to this The Elder Scrolls V: Skyrim® Private Beta Trial for downloadable content expansion, titled Dawnguard™ (“Beta Trial”). Your participation in the Beta Trial and confidential access to the Beta Trial software are subject to the following terms and conditions, which constitute a binding legal agreement between you and Bethesda, effective immediately.

R E C I T A L S

WHEREAS, Bethesda is engaged in the creation and development of an interactive entertainment software game downloadable content expansion, titled Dawnguard™ (the “DLC”) for The Elder Scrolls V: Skyrim® (“Skyrim”) for the Microsoft XBox platform (DLC and Skyrim, collectively, the “Game”);

WHEREAS, Reviewer is an individual of 18 years or older with experience as a consumer and dedicated player of multimedia interactive entertainment software, has purchased Skyrim, and wishes to participate in the Beta Trial;

WHEREAS, Bethesda desires to retain the services of Reviewer, and Reviewer desires to provide services to Bethesda, by participating in the Beta Trial on a confidential basis by playing and evaluating the Game prior to its public release, and providing comment and suggestions on the DLC; and

WHEREAS, Bethesda and Reviewer mutually agree that Reviewer's access to the pre-release version of the DLC and other Confidential Information (as defined herein) of Bethesda can only occur upon the guaranty by Reviewer to abide by the strictest confidentiality and nondisclosure obligations pursuant to the terms and conditions hereinafter provided.

NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, the disclosure of certain Confidential Information by Bethesda, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Bethesda and Reviewer represent and agree as follows:

1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference.

2. Role of Reviewer. Bethesda and Reviewer acknowledge and agree that Reviewer is an individual whose interest in multimedia entertainment software and desire to have access to and be involved with the latest developments in such software have caused Reviewer to volunteer his or her services through the Microsoft (“Microsoft”) Xbox Live® (“Xbox Live”) network to test and evaluate the Game prior to its release, in exchange for the opportunity to gain access to and have input into the Game prior to disclosure or release to the general public.

(a) Bethesda intends to invite the Reviewer to participate in the Beta Trial and play the Game pursuant to all Microsoft and Xbox Live requirements and Bethesda’s instructions and providing comment to Bethesda from the perspective of a consumer concerning the character animation, performance and other features of the Game. Reviewer agrees to perform such tasks as Bethesda shall direct in a timely manner and to provide the information requested by Bethesda.
(b) Nothing in this Agreement shall be construed in any way to grant Reviewer with any license, right, interest, or expectation whatsoever to be contacted or consulted by Bethesda, or otherwise to be involved, directly or indirectly, in development of the Game or any other Bethesda game or property, or to have access to or any right or interest in Bethesda's proprietary rights or Confidential Information, as hereinafter defined.
(c) Nothing in this Agreement shall be construed in any way to create or confer a right, interest, or expectation of Reviewer in or to any tangible or intangible property or property right of Bethesda, or in or to any Confidential Information, as hereinafter defined, which may be disclosed by Bethesda to Reviewer. Reviewer shall make no use of nor derive any benefit from such property or Confidential Information, directly or indirectly, unless expressly authorized in writing by Bethesda, or permit others to make any such use or derive any such benefit without the prior express written consent of Bethesda.
(d) Reviewer acknowledges that any ideas, concepts, inventions, characters, plots, titles, designs, art work, programs, programming techniques, and the like which Reviewer may suggest, disclose, or present to Bethesda during the term of this Agreement, expressly including but not limited to any and all patent, copyright, trademark, and trade secret rights related thereto, automatically shall become the property of Bethesda. Upon Bethesda’s request, Reviewer shall sign and deliver to Bethesda documentation in form and substance satisfactory to Bethesda confirming and perfecting the foregoing ownership rights of Bethesda. If Reviewer fails promptly to sign and deliver such documentation, then Bethesda shall have the right to execute such documentation as Reviewer's attorney-in-fact, and Reviewer does hereby constitute and appoint Bethesda as Reviewer's attorney-in-fact for the purpose of executing such documentation. The rights of Bethesda pursuant to this subparagraph constitute a power coupled with an interest, with rights of substitution and delegation, and are irrevocable.
(e) It is expressly understood by Reviewer that all tasks which Reviewer may undertake for or on behalf of Bethesda, whether at the request of Bethesda or otherwise, shall be performed without monetary or any other financial compensation or benefit of any kind, and without any expectation of such financial compensation or benefit now or in the future. Reviewer expressly acknowledges that such tasks are sought by Reviewer voluntarily and of Reviewer's own free will as a result of Reviewer's personal interest and enjoyment in performing such tasks.
(f) Reviewer acknowledges that software and/or content may be modified by Bethesda and that modifications may cause a loss of data or content and loss of function or utility in or on Reviewer’s hardware. Reviewer WAIVES protections afforded by statute or law, and agrees that Bethesda is not liable for nor has control over Microsoft or Xbox Live’s actions; your Xbox Live® account and/or sub-account(s); any loss of data, content, function or utility; or any behavior of other testers participating in the Beta Trial. Reviewer further releases, discharges, indemnifies, and holds harmless Bethesda, its affiliates, and each of their officers, directors, employees, stockholders, members and agents from any and all claims, losses, causes of action and liabilities of any kind arising out of or relating in any way to the Beta Trial.
(g) Reviewer agrees that it is acting as an independent contractor. Nothing contained in this Agreement shall be construed as creating any obligation or an expectation on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in this Agreement will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the right, power, or authority to make any representation or warranty, or to assume or create any obligation, whether express or implied, or to bind the other party in any manner whatsoever.
(g) Reviewer acknowledges the reliance of Bethesda on Reviewer's honest, good faith, and unbiased comments, suggestions, and evaluations of the Game and in discussions between Bethesda and Reviewer. Reviewer represents and agrees that Reviewer will act at all times with the highest ethical standards.

3. Nondisclosure of Confidential Information. As a material inducement to Bethesda to enter into this Agreement and to permit Reviewer access to Bethesda's Game, Reviewer hereby expressly represents and agrees that it will not disclose or make any use of, or benefit from, directly or indirectly, the Confidential Information of Bethesda.
(a) “Confidential Information” as used in this Agreement shall mean any and all information or material, of every kind and form, which is proprietary to Bethesda, or is designated as Confidential Information by Bethesda, whether or not owned or developed by Bethesda, which is not generally known other than by Bethesda or those obligated to Bethesda to maintain confidentiality, and of which Reviewer obtains knowledge through or as a result of Reviewer's relationship hereunder with Bethesda. This includes, but is not limited to, all information during the Beta Trial, any Beta Trial forums, and private Bethesda forums.
(b) Reviewer acknowledges and agrees that such Confidential Information has been developed or obtained by Bethesda through the investment of significant time, effort, and expense, and that such confidential information provides Bethesda with a significant competitive advantage in its business.
(c) Reviewer agrees to hold in strictest confidence and not to disclose or reveal to any person or entity Confidential Information without the express prior written consent of a duly authorized representative of Bethesda. In particular, you must not discuss the Beta Trials with anyone associated with a competing videogame format or publisher, a news or information service (whether television, magazine, newspaper or otherwise) or in any online forum or chat room, other than the official Beta Trial forum or specifically designated private Bethesda forum. Reviewer agrees not to use or to disclose any of the Confidential Information for any purpose whatsoever at any time to any third party by direct or indirect means. Without limiting the generality of the foregoing, Reviewer agrees that any reports or announcements concerning Confidential Information which are not made or authorized by Bethesda, and which appear in any publication or other communication medium prior to Bethesda's official disclosure of such Confidential Information, shall not release Reviewer from its obligations hereunder with respect to such Confidential Information. Reviewer agrees that he or she shall not publish or contribute to any review, notice, or other report concerning any of Bethesda's Confidential Information prior to Bethesda's intentional disclosure, at which time it shall no longer be Confidential Information. It shall be the duty of Reviewer to secure the authorization of Bethesda in the event of any reasonable doubt on the part of Reviewer regarding the status of disclosed Confidential Information.
(d) Nothing contained in this Agreement shall be construed to create any obligation on the part of Bethesda to disclose any Confidential Information whatsoever to Reviewer. Bethesda reserves the right to suspend, restrict, or cancel the Beta Trial, and/or may terminate Reviewer’s participation in the Beta Trial at Bethesda’s sole and absolute discretion.
(e) It is understood by the parties that Bethesda, in its sole and absolute discretion, may furnish Reviewer with certain materials, either in writing or otherwise fixed in tangible form. The parties agree that any and all of these materials shall be deemed Confidential Information. Reviewer shall not copy, alter, modify, disassemble, reverse engineer, or decompile any of these materials without the prior written consent of Bethesda. Reviewer agrees to return to Bethesda any and all of these materials, together with any and all copies and notes (including but not limited to complete or partial copies incorporated in other materials) that may have been made, promptly upon the request of Bethesda or, if not requested earlier, promptly after the purpose(s) for which they have been furnished have been accomplished or abandoned.

4. Representations of Reviewer. Reviewer makes the following representations to Bethesda, intending that Bethesda rely thereon in entering into this Agreement:
(a) Reviewer is eighteen (18) years of age or older and has full legal capacity to enter into this Agreement and to perform the obligations assigned to Reviewer herein.
(b) Reviewer has not, and will not in the future, enter into any agreement or understanding, whether written or oral, with any third party that impedes or conflicts with the performance of the Reviewer's obligations provided in this Agreement.
(c) Reviewer has read this Agreement fully and carefully, and has asked Bethesda all questions Reviewer may have prior to signing. Reviewer acknowledges being given the opportunity to consult with an attorney or other representative prior to signing this Agreement.

5. Remedies of Bethesda. The parties agree that Reviewer's obligations pursuant to this Agreement are of a unique, unusual, and extraordinary character, and that Bethesda is bestowing great trust and confidence in Reviewer in the disclosure of its Confidential Information as provided herein. The material breach of any obligation by Reviewer provided in this Agreement will cause Bethesda great and irreparable injury and damage for which Bethesda's remedies at law cannot reasonably or adequately compensate. Therefore, Bethesda shall be entitled to immediate equitable relief to prevent such injury and/or damage. All remedies hereunder, and all remedies provided at law, shall be deemed cumulative and are not exclusive.

6. Term and Termination. This Agreement may be terminated by Bethesda with or without cause at any time.

7. Continuing Effect. The provisions of subparagraphs 2(b), (c), (d), (e), and (f) and paragraph 3 shall survive termination of this Agreement.

8. Waiver. No failure or delay by Bethesda in the exercise of any right, power, or remedy pursuant to this Agreement will operate as a waiver of any such right, power, or remedy. Any waiver shall be in writing signed by Bethesda. Any waiver will not be construed as a waiver of any other provision of this Agreement, nor will such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.

9. Entire Agreement. This Agreement and any addenda hereafter executed by the parties constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, correspondence, and understandings between the parties, both written and oral.

10. Severability. In the event any provision of this Agreement (or portion thereof) is determined by a court of competent to be void, invalid, or otherwise unenforceable, such provision (or part thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be deleted from this Agreement, while the remainder of the Agreement will continue in full force and remain in effect according to its stated terms and conditions.

11. Modification. No modification or amendment of any provision of this Agreement will be effective unless in writing and signed by both of the parties hereto.

12. Assignment. This Agreement shall not be assignable by Reviewer under any circumstance.

13. Binding Effect. All of the terms and provisions contained in this Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, successors, and permitted assigns.

14. Attorney's Fees. In the event that Bethesda commences an action to enforce any provision of this Agreement against the Reviewer, then Bethesda in such action (including any appeals), shall be entitled, in addition to all other applicable remedies, to payment of the costs of suit and the reasonable attorney's fees incurred by Bethesda.

15. Headings. The headings of the paragraphs of this Agreement are for convenience of reference only and will not be of any effect in construing the meanings of the paragraphs.

16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Maryland, without regard to conflicts of law principles, and the parties hereby consent to the sole and exclusive jurisdiction of the Maryland courts in Montgomery County, Maryland, to resolve any disputes hereunder.