NEAR DEATH STUDIOS, INC.
END USER LICENSE AGREEMENT
February, 2002

WARNING: YOU ARE ABOUT TO ENTER INTO A CONTRACT. USE OF THE MERIDIAN 59 ONLINE GAME AND THE CD-ROM ACCESS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS END USER LICENSE AGREEMENT BEFORE USING THE GAME SOFTWARE.

NOTICE TO USER:
This License is a legal agreement concerning the use of the Game Software between you, the “End User”, and Near Death Studios, Inc., the owner of the Meridian 59 Online Game and the Game Software. Operation, employment, play or use of the Game Software indicates your complete and unconditional acceptance of the terms and conditions set forth in this Agreement. If you do not agree to these terms and conditions, promptly return or, if received electronically, certify destruction of the Game Software within ten (10) calendar days after receipt of the Game Software and receive a full refund of any license fee paid if you: (a) Do not use the Game Software, and (B) return it with proof of payment to the location from which it was obtained.

1. Grant of License.
   The Game Software that you have received, are installing, downloading, accessing, operating, using or have acquired with this Agreement, including any updates, modifications, revisions, copies, and documentation are copyrighted, trade secrets and confidential information of, belonging to and owned by Near Death Studios, Inc., (hereinafter referred to as “NDS”) which maintains exclusive right, title and interest in and to all of the Game Software and which reserves all rights not expressly granted in this Agreement to End User. NDS grants to you, the End User, subject and contingent upon payment of all appropriate licensee fees and online access fees, a non-transferable, non-exclusive, license to (1) employ and use the Access Disk or downloadable access software to connect only to authorized NDS servers, and (2) use and play the Meridian 59 Online Game pursuant to the terms and conditions set forth in this Agreement.

2. License Restrictions.
   End User may only use the Game Software (1) in a machine-readable object-code form, (2) for End User’s personal use and purposes, and (3) on a single computer for which the Game Software has been licensed. End User may make only one (1) back-up copy of the Game Software, provided your back up copy is not installed or used on any computer. End-User may not transfer the rights to a backup copy. End User may not decompile, reverse-assemble, reverse-engineer or, in any manner, alter or modify the Meridian 59 Online Game or the Game Software, or in any manner derive the Game Software from the source code. End User shall not attempt, nor assist a third party to attempt, to “hack”, or improperly access the Game Software or the Meridian 59 Online Game server. End User shall not “hack” the communication protocol between the End User and the NDS Meridian 59 Online Game server. End User shall not make the Game Software available to any person not already licensed to use the Game Software. End User shall only use and employ the Access Disk to connect to authorized NDS servers. End User shall take appropriate and reasonable steps to protect the confidentiality and use of the Game Software, and shall not disclose it, permit its use, or otherwise use it except as expressly permitted by this Agreement to access the Meridian 59 game server. End User may not integrate the Game Software with any other software. End User may not rent, transfer, sublicense or authorize all of or any portion of the Game Software to be copied onto another user’s computer. If any violation of this provision is discovered by NDS, End User’s license will be automatically revoked and terminated immediately. The unauthorized copying of the Game Software or printed documentation, in whole or in part, and the acquisition and use of unauthorized copies may be both criminal and civil offenses for which NDS may take legal action. NDS reserves the right to trace serial numbers on programs or documentation at any time and in any reasonable manner.

3. Definition of “Game Software.”
   As used herein, “Game Software” shall mean collectively (a) the Meridian 59 Online Game residing on various authorized Meridian 59 game server(s), (b) the CD-Rom Access disk (the “Access Disk”), (c) all Meridian 59 binary executable code, (d) all proprietary dynamic libraries (DLL) used in the Meridian 59 Online Game, (e) all proprietary Meridian 59 game artwork including but not limited to all virtual art, textures, levels, music and sound effects, and (f) all of the contents of the files, disk(s), CD-Rom(s) or other media provided to End User under this Agreement, including but not limited to related explanatory written materials or files, upgrades, modified versions, updates, additions, and copies of the Game Software, if any, licensed by the End User. The term “Use” or “Using” means access, employ, install, download, copy or otherwise benefit from using the functionality of the Access Disk and/or Game Software in accordance with any and all documentation.

4. Term of License.
   The license granted herein is effective only if the End User has established an active online account with NDS for the use and play of the Meridian 59 Online Game and until terminated. NDS may terminate this Agreement and the license granted hereunder if End User fails to timely pay any and all license and online access fees and charges for the right to game play on the Meridian 59 game server. End User may terminate this Agreement by destroying the Game Software and the Access Disk together with all copies. The license granted herein shall also terminate upon conditions set forth elsewhere in this Agreement or if End User fails to comply with any term or condition of this Agreement. End User agrees, upon such termination, to destroy the Access Disk together with all copies thereof.

5. Intellectual Property Rights.
   The Meridian 59 Online Game, the Access Disk, and any backup copies are the intellectual property of and are owned by NDS. The structure, organization, and code of the Game Software are the valuable trade secrets and confidential information of NDS. The Game Software is protected by copyright, including without limitation, United States Copyright law, international treaty provisions and applicable laws in the country in which it is being used. Any backup copies that the End User is permitted to make under this Agreement must contain the same copyright and other proprietary notices that appear on or in the Game Software. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Game Software, the Meridian 59 Online Game, the Access Disk or any of the documentation related thereto. All rights not expressly granted herein are reserved by NDS.

6. LIMITED WARRANTY BY NDS.
   NDS warrants that during the license term, so long as End User is current and fully paid on all license and access fees and charges, when properly installed, the Access Disk and the Game Software will meet the End User’s requirements for game play of the Meridian 59 Online Game. NDS does not warrant that game play or operation of the Meridian 59 Online Game shall be uninterrupted or free of errors, down time, or breaks in service for purposes of undertaking game or access maintenance. This warranty shall not be valid if the Access Disk or the Meridian 59 Online Game has been subjected to misuse, unauthorized modification or installation, or the Meridian 59 Online Game server has been hacked or if service is not available due to acts of God. NDS’ entire liability and End User’s exclusive remedy shall be, at NDS’ option, (a) a refund of the price paid upon the return of the Access Disk, or (b) modification or replacement of the Game Software provided that End User has otherwise complied with this Agreement, or (c) a refund or credit of the access fee paid by End User for the period that the Meridian 59 Online Game could not be accessed and played by End User.
   THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE. NDS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERIDIAN 59 ONLINE GAME OR THE GAME SOFTWARE, OR ANY OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. NDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. LIMITATION OF LIABILITY.
   EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE STATUTE OR REGULATION, IN NO EVENT SHALL NDS BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT NDS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF NDS UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE END USER FOR THE GAME SOFTWARE OR THE ONLINE SERVICE FOR ACCESS TO THE MERIDIAN 59 ONLINE GAME GIVING RISE TO END USER’S CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID BY END USER TO NDS, NDS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.

8. Update Policy.
   NDS may from time to time revise or update the Game Software, and/or the Access Disk and/or the Meridian 59 Online Game, and/or any communication protocol. NDS intends that all updating will be performed on an “auto-updating” basis when the End User properly accesses the Meridian 59 game server. End User agrees to allow NDS to “auto-update” the downloadable version of the Game Software at any time, and to auto-install on End User’s computer all updates and revisions of the Game Software, when End User logs onto the NDS Meridian 59 game server. In order to receive updates and revisions, the End User must have an active account with NDS. NDS is not obligated to make any product revisions or to supply any such revisions or updates to the End User at any time.

9. Infringement.
   

   1. NDS will defend or settle, at its option and expense, any action brought against the End User alleging that the Game Software and/or Meridian 59 Online Game infringes a patent or copyright of the United States, Canada, or the European Union. NDS will pay any costs and damages finally awarded against the End User that are attributable to the claim, provided that the End User (1) notifies NDS promptly in writing of the action, (2) End User provides NDS with all reasonable information and assistance necessary to settle of defend the claim, and (3) End User grants NDS sole authority and control of the defense or settlement of the claim.
   2. If an infringement claim is made, NDS may, at its option and expense, either (1) replace the Game Software so that it becomes non-infringing, or (2) procure for the End User the right to continue using the Game Software. If NDS determines that neither alternative is financially practical or available, NDS may require the return of the Game Software and refund to the End User any license fee paid, less reasonable allowance for use.
   3. NDS has no liability to the End User for any alleged infringement other than what is expressly set forth in this Section. THIS SECTION STATES THE ENTIRE LIABILITY OF NDS AND END USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY PATENT OR COPYRIGHT INFRINGEMENT BY ANY SOFTWARE LICENSED UNDER THIS AGREEMENT.

10. Export Restrictions.
    The Game Software is subject to regulation by federal and state laws, and enforced by United States government agencies which protect the export and diversion of the Game Software, and/or the Access Disk, and any and all documentation supplied by NDS in connection with the Meridian 59 Online Game. The End User hereby agrees that he/she will not export in any manner any Game Software or direct product related thereto without first obtaining all necessary written authorizations and approvals from NDS, local, state and federal authorities, and all appropriate governmental agencies.

11. General Law.
    This Agreement contains the entire understanding between of the parties related to the subject matter hereof, and supercedes all prior agreements, whether written, oral, or contemporaneous with this Agreement, including but not limited to any and all provisions and conditions set forth in purchase orders. This Agreement may only be modified by a physical writing signed by both NDS and the End User. This Agreement shall be governed by and construed under the laws of the state of California, United States. Jurisdiction of all state actions is the County of Santa Clara, California, and all federal actions shall be heard in the Ninth Circuit Court in the Northern District of California. If any provision of this Agreement is ever held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, it will not effect the validity of the remaining balance of the Agreement which will remain in full force and effect. The prevailing party in any legal action regarding the subject matter hereof shall be entitled to recover, in addition to all other relief, reasonable attorneys fees and expenses. Any causes of action which the End User might bring under this Agreement must be instituted within one (1) year after the claim or cause of action has arisen or be barred.

If the End User has any questions about this Agreement, or he/she wishes to receive any information about NDS, the Game Software, or the Meridian 59 Online Game, he/she should use the address and contact information included with this product to contact NDS or log onto to www.neardeathstudios.com.