Game License & Upload Agreement

THIS GAME LICENSE & UPLOAD AGREEMENT, as it may be amended from time to time, (“Agreement”) is made and entered into by and between Kongregate Inc., a Delaware corporation, with its principal place of business at 450 Sansome Street, 12th Floor, San Francisco, California 94111, United States (“Kongregate”), and you, the developer of an online game (“You”). Through this Agreement, You submit a game (“Game”) to Kongregate for inclusion in or on www.kongregate.com, Kartridge, any other site or gaming service, including syndicated services, that is owned or operated by Kongregate, Kongregate’s apps or mobile products, and/or in other media whether now or hereafter created (each, a “Kongregate Platform” and collectively, the “Kongregate Platform”). The “Effective Date” of this Agreement is the date on which You upload your initial Game to a Kongregate Platform and thereby accept this Agreement. All other capitalized terms used but not defined herein, are understood and shall be interpreted consistent with any definition and usage of such terms in the Royalties Addendum (the “Royalties Addendum”), which is referenced hereto and incorporated into this Agreement. For good and valuable consideration as provided herein, the parties agree as follows:

  1. Ownership. You shall retain all right, title, and interest in and to any Game, trademarks and trade names associated with the Game, any updates, patched and error corrections that You supply and/or any related materials that the You upload to the Kongregate Platform (collectively, “Game Materials”). In no event shall Kongregate’s exercise of any rights granted under the license set forth in this Agreement constitute an assignment, transfer, conveyance, release, or relinquishment of any of your rights in or to Game Materials, including without limitation any copyrights, trademarks, trade secrets, patentable inventions or other proprietary rights embodied or incorporated therein. Notwithstanding the foregoing, to the extent Kongregate provides materials related to the Game, e.g., creation of marketing, advertising or promotional materials as Kongregate deems proper, the intellectual property rights in such shall belong to, and vest in, Kongregate. Notwithstanding Kongregate’s intellectual property rights in its marketing, advertising, and promotional materials, as set forth in the prior sentence, Kongregate agrees that upon termination of this Agreement for any reason, Kongregate will destroy or delete all marketing, advertising, and promotional materials (other than for non-public archive purposes) in which Game Materials are present or remove any such Game Materials from such marketing, advertising and/or promotional materials.

  2. License. You hereby grant to Kongregate, a worldwide, non-exclusive, sub-licensable right and license to (A) use, reproduce, distribute, display, publicly perform, demonstrate, deliver, market, and promote, Game Materials through the Kongregate Platform; (B) develop, create, implement, and/or distribute modifications from Game Materials as necessary in order to incorporate the Game into the Kongregate Platform; and (C) sell, issue to the public, allow your Game to be hosted, downloaded, distributed or otherwise exploited by way of digital download or other remote electronic delivery method through the Kongregate Platform. In connection with this license, the parties hereto agree to cooperate and provide the other assistance as commercially reasonably required in order to effect the terms of this Agreement. With regard to Section 2(B), Kongregate acknowledges that all modifications made to the Game Materials by Kongregate are subject to the Game Material owners’ or authorized licensee’s written approval, which will not be unreasonably withheld.

  3. Advertising Revenue. In certain cases, Kongregate may pay you a royalty for the use of Your Game Materials based on advertising revenue, if any, generated by the number of views of your Game’s page. Kongregate will determine a royalty, based on a percentage of the Net Ad Revenue received by Kongregate, specifically associated with your Game. You will receive a base royalty of 25% of the Net Ad Revenue received in connection with your Game. If You use the Kongregate Stats API, You will receive an additional 10% for a royalty of up to 35% of the Net Ad Revenue received. If your Game is exclusive to Kongregate, You will receive a bonus of 15%, for a maximum possible royalty of 50% of the Net Ad Revenue received. “Net Ad Revenue” is the gross ad revenue per Game, as calculated by Kongregate, less fees, commissions and expenses paid to third parties. You agree that Kongregate, in its sole discretion, will determine royalty qualifications, percentages and amounts due to You and that such qualifications and percentages are subject to change by Kongregate.

  4. License Termination. The license granted by You to Kongregate may be terminated by You by sending an email request to developer_support@kongregate.com. Within ten (10) business days of a receipt of a termination request, Kongregate shall make commercially reasonable efforts to remove the Game Materials from the Kongregate Platform, to cease public distribution of Game Materials, and upon written request, use commercially reasonable efforts to delete residual copies of Game Materials on Kongregate servers and other machines not available to the general public. Notwithstanding the foregoing, Kongregate will not be responsible for removing cached copies of the Game Materials that may be made by third parties on their own servers, computers, or other hardware.

  5. User Data. Kongregate and its affiliates will be the sole and exclusive owner and controller of any end user customer data and any other data collected by the Kongregate Platforms in connection with Your Game(s), especially any personally identifiable information. The use and/or collection of such data shall be in accordance with Kongregate’s then current Privacy Policy and any and all applicable privacy and data protection laws and regulations as may be amended or superseded from time to time. Neither party will copy, monitor, inspect, modify, process or exploit the data of the other party except as agreed in writing by them. Notwithstanding the foregoing, if required for the purpose of applicable privacy and data protections laws and regulations, esp. including those of the European Economic Area, You agree to enter into a data processing addendum (“DPA”). Each of us agree to be responsible for all legal and regulatory compliance in relation to user privacy and data.

  6. Your Representations and Warranties. You represent and warrant that: (A) You are the sole owner or authorized licensee of (with the right to sub-license) the Game and Game Materials as described in this Agreement; (B) the Game is an original work and is not copied in whole or in part from any other work or material; (C) the Game Materials, including code, visual, and musical elements, do not infringe on the rights of any third party, including any copyright, trademark, patent, trade secret or other intellectual property right, or any right of privacy or publicity; (D) the Game will not contain or require for proper use any third party materials that You do not have a valid and fully paid up license to use and sublicense hereunder; (E) the Game Materials shall be of sound workmanship, free of all material bugs, errors or defects and do not contain any viruses, corrupted files, backdoors, or any other similar malicious software or programs that may adversely affect end users of the Game or the operation of the Kongregate Platform, Kongregate’s servers, or its systems, software or hardware; (F) the Game Materials are not obscene, offensive, racist, or sexist, and do not contain falsehoods or misrepresentations or content that could give rise to a criminal offense, civil liability, or violate any law; and (G) the Game Materials do not accept payments from or display dynamically served advertisements to Kongregate’s users, nor do they provide a premium service for payment accepted elsewhere, except as authorized or provided by Kongregate.

  7. Additional Warranties. Each of the parties represents and warrants that (A) it has the power and to enter into and execute this Agreement and the Royalties Addendum, if applicable, and has been duly authorized to grant the rights and licenses as provided herein and be bound by this Agreement; (B) the entry into this Agreement does not violate any laws, rules, or regulations which govern it or constitute a breach, event of default, or violation of any agreement by which each is bound and (C) each shall comply in all respects with any and all applicable laws, rules and regulations as well as all terms, conditions, guidelines and requirements of the owner/operator/controller of the applicable platform for or through which the Game is to be sold.

  8. Indemnity. You shall indemnify, defend, and hold Kongregate harmless from and against any damages, amounts agreed to in settlement, demands, liabilities, obligations, costs, and expenses of any nature whatsoever (including reasonable attorneys’ fees) incurred by Kongregate to the extent resulting from (A) a violation by You of the terms of this Agreement or Your obligations, representations, or warranties hereunder, and/or (B) a third-party claim that the Game Materials infringe any patent, copyright, trademark, trade secret, right of privacy or publicity, or any other proprietary right of a third party.

  9. Waiver. KONGREGATE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR, (A) THE AVAILABILITY, ACCURACY OR COMPLETENESS OF THE KONGREGATE PLATFORM, (B) ANY ERRORS, MISTAKES, OR INACCURACIES OF YOUR MATERIAL AS INCORPORATED INTO THE KONGREGATE PLATFORM, (C) ANY UNLAWFUL COPYING OF YOUR MATERIALS, UNAUTHORIZED ACCESS TO OR USE OF YOUR MATERIALS ON THE KONGREGATE PLATFORM, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE KONGREGATE PLATFORM, (E) COMMUNICATIONS OR ACTIONS OF KONGREGATE PLATFORM USERS, OR (F) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE KONGREGATE PLATFORM OR OTHERWISE DURING YOUR PROVISION OF YOUR MATERIALS TO KONGREGATE.

  10. LIMITATION OF LIABILITY; LIABILITY CAP. KONGREGATE SHALL NOT BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR IN ANY OTHER FORM OF ACTION, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE OR FAILURE TO PERFORM HEREUNDER. IN NO EVENT SHALL KONGREGATE’S LIABILITY TO YOU FOR DAMAGES EXCEED THE GREATER OF $5.00 USD OR THE ROYALTIES PAID TO YOU FOR THE PAST TWELVE MONTHS.

  11. Governing Law/Jurisdiction/Venue. This Agreement and the Royalty Addendum, when applicable, shall be governed by the law of the State of California, without reference to its principles of conflict of laws to the extent they would require the application of another state’s law. You consent to the jurisdiction of the state and federal courts located in the county of San Francisco in the State of California, and waive any objection to venue in such courts.

  12. Survival. The parties’ representations and warranties, covenants, indemnifications, limitation of liability, confidentiality obligations, audit rights and those provisions that by their nature are intended to survive termination shall so survive following the termination of this Agreement.

  13. General.

    1. Independent Contractors. Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the parties, and neither party shall hold itself out as a partner or agent of the other party.

    2. Legal Construction; Interpretation. If one or more of the provisions of this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement; and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained in this Agreement.

    3. No Assignment. You shall not be entitled to assign the Agreement without the prior written consent of Kongregate.

    4. Counterparts. This Agreement, of which the Royalties Addendum is a part to the extent applicable, may be executed in one or more counterparts, each of which, taken together, shall be considered one and the same document.

    5. Entire Agreement; Amendments. This Agreement, including the Royalty Addendum, and any written amendments executed by both parties embodies the entire agreement and understanding between the parties and supersedes all prior understandings and agreements, whether written or oral, between the parties relating to the subject matter hereof. Kongregate reserves the right to amend the terms of this Agreement at any time. When any changes are made, we will try to provide reasonable notice and will post the updated version on the Platform and may also send an email or provide additional notice. Each time You access our Platform, the then current version of the Agreement applies. You agree to check the terms of this Agreement periodically for updates, amendments or new information that govern your use of the Kongregate Platform and services. Should you have any questions about the changes, You are welcome to contact us at developer_support@kongregate.com. If You do not agree with the changes, then unfortunately, we must ask you to cease using the Kongregate Platform for Your Game(s) as we must have all developers under the same terms in order to provide equitable Services to all.

By checking “Accept” below You affirmatively agree that this Agreement, and the Royalties Addendum to the extent it applies to You, shall be binding on You, just as if You had provided a physical signature. By submitting Game Materials to Kongregate, You expressly recognize and agree that any data or information You provide to Kongregate, including personally identifiable information, will be provided to Kongregate.

Last updated: October 24, 2018