THIRD-PARTY GAME REVENUE SHARE AGREEMENT
This Third-Party Game Revenue Share Agreement ("Agreement") is made and entered into by and between Kongregate, Inc., a Delaware corporation ("Kongregate") and the undersigned ("Developer") as of ________________ ("Effective Date") with reference to the following. Developer would like Kongregate to offer one or more of Developer’s electronic games on the Web Site, as defined below, and Kongregate is willing to offer on the Web Site, the game(s) on the following terms and conditions.
NOW, THEREFORE, the parties agree as follows.
1. Definitions; Game Earnings; API Implementation.
1.1. Definitions.
1.1.1. "API" means any application programming interface made available to Developer by Kongregate for use in connection with making each Game compatible with features and functions on a Web Site and any revenue-generating mechanism, including, without limitation, any APIs listed in the applicable Game Schedule.
1.1.2. "Game" means a game listed in a Game Schedule to this Agreement in the form attached as Exhibit A, including the name of the game, all content, characters and features, all copies thereof and all intellectual property rights in all of the foregoing.
1.1.3. "Game Earnings" means the fees (if any) actually received by Kongregate resulting directly from users playing a Game and/or any Version thereof on or through a Web Site, less (i) any deductions made in connection with currency exchange rates; and (ii) all taxes and other fees that may be imposed by any governmental or administrative organization.
1.1.4. "Kongregate IP" means all content, APIs, object code, source code, ideas, inventions, processes, know-how and other technology and related materials and all copies, modifications, derivative works and versions thereof provided by Kongregate to Developer under this Agreement for use in connection with a Game or any mutually agreed Version and all intellectual property rights in all of the foregoing.
1.1.5. "Version" means any and all modifications to, derivative works based on and versions, sequels and off-shoots of a Game or any portion thereof and all intellectual property rights therein.
1.1.6. "Web Site" means a web site, web page or portal owned or controlled by Kongregate or any of its affiliates, business partners or service partners.
1.2. Game Earnings. Kongregate and Developer will share all Game Earnings as set forth in the applicable Game Schedule. Kongregate will determine in its discretion and control the revenue-generating mechanism(s), if any, that will be used in connection with each Game and any mutually agreed Version thereof through the a Web Site, all related business models and any allocation of fees and revenues generated to Developer and third parties, including, without limitation, Kongregate's affiliates, business partners and service providers. Such mechanisms may include, without limitation, microtransactions and player wallets.
1.3. Kongregate APIs. Developer will implement and integrate all APIs for each Game and any Version thereof so the revenue-generating mechanisms and other Web Site features and functions determined by Kongregate in its discretion can be accessed through and used in connection with such Game and Version(s) and ensure that the Game and Version(s) are operable in connection with such mechanisms, features and functions.
1.4. Maintenance Services. Developer acknowledges and agrees that it may be required to provide maintenance and support services for each Game and any Version(s) thereof from time to time in order to maintain operability and connection with revenue-generating mechanisms and other Web Site features and functions and receive Developer's share of Game Earnings under this Agreement, including without limitation by implementing additional APIs as reasonably requested by Kongregate.
1.5. Performance. Developer will promptly provide to Kongregate such written or oral reports relating to each API implementation and any test results, information and other materials that Kongregate reasonably requests. Developer will perform all development and API implementation in a careful, professional, workmanlike and timely manner, to the best of Developer's ability.
2. License Grants.
2.1. By Kongregate. Kongregate grants Developer a worldwide, non-transferable, non-sublicensable, non-exclusive, fully paid-up, royalty-free right and license to use the Kongregate IP solely in connection with each Game and/or Version for which such Kongregate IP is provided under the applicable Game Schedule in accordance with the terms and conditions of this Agreement, solely for purposes of making each Game and/or Version operable in connection with revenue-generating mechanisms and other Web Site features and functions under Section 1.3. Nothing herein grants Developer any right or license to, and Developer may not without Kongregate's prior written consent make any use of, any Kongregate trade name, trademark, service mark or domain name or any URL link to any Web Site.
2.2. By Developer. Developer hereby grants to Kongregate a worldwide, non-exclusive, non-sublicensable right and license to (a) use, reproduce, distribute, display, publicly perform, deliver, market, and promote, the Game and any Version thereof provided by Developer under this Agreement through the Web Site and (b) to develop, create, implement, and/or distribute modifications of the Game and any such Versions as necessary in order to incorporate the Game and Version(s)in the Web Site.
3. Ownership. Developer owns and retains ownership of all rights in the Game and each Version thereof. Developer acknowledges ownership of the Kongregate IP by Kongregate. Each party will not do anything inconsistent with such ownership or contest or assist any third party in contesting such ownership. Each party will conduct itself and its business in a manner that reflects favorably at all times on each Game, each Version and the other party’s goodwill and reputation, avoid deceptive, misleading or unethical practices and make no false or misleading representations with regard to each party or any Game, or Version.
4. Mutual Confidentiality.
4.1. Definition. Each party (the "Disclosing Party") may disclose to the other party (the "Recipient") certain non-public, proprietary, Confidential Information to be used in the performance of this Agreement. "Confidential Information" means any information, technical data, or know-how of the Disclosing Party or any of its clients, customers, consultants, shareholders, licensees, licensors, vendors or affiliates, that the Recipient may obtain or otherwise acquire or have access to before or during the term of this Agreement that is either marked proprietary or confidential or that would appear to a reasonable person to be confidential. Developer's Confidential Information includes Game and Version source code and Kongregate's Confidential Information includes, without limitation: the terms and conditions of this Agreement and any Game Schedule, Kongregate IP, business plans, records and affairs; customer files and lists; special customer matters; sales practices, methods and techniques; merchandising concepts, strategies and plans; sources of supply and vendors; special business relationships with vendors, agents and brokers; promotional materials and information; financial matters; mergers; acquisitions; equipment; technologies and processes; selective personnel matters; inventions; developments; product specifications; procedures; pricing information; intellectual property; know-how; technical data; software programs; algorithms; operations and production costs; processes; designs; formulas; ideas; plans; devices; materials; and other similar matters which are confidential. "Confidential Information" does not include information which (a) was in the public domain at or subsequent to the time such information was communicated to Recipient by the Disclosing Party by no fault of Recipient, (b) was rightfully received by Recipient from a third party free of any obligation of confidence or (c) was known by Recipient prior to its first receipt of the information from Disclosing Party, as evidenced by Recipient's written records.
4.2. Confidentiality. The Recipient will hold, use and maintain the Disclosing Party's Confidential Information in the strictest confidence and in trust for the sole and exclusive purpose of performing under this Agreement. The Recipient will use commercially reasonable efforts to preserve the secrecy of Confidential Information and will restrict access to the Confidential Information, as follows. Recipient will not directly or indirectly disclose any Confidential Information to, or use any Confidential Information for the benefit of, any third party. Recipient may disclose the Confidential Information only to employees and authorized consultants who have a need to know the Confidential Information to exercise Kongregate's rights and to fulfill Recipient's obligations under this Agreement and who have executed a confidentiality agreement containing terms no less restrictive than those contained herein. Recipient will advise each of the persons to whom it provides access to any Confidential Information that such persons are strictly prohibited from making any use, benefit, publication or disclosure of, or permitting others to use for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information and Recipient will be responsible and liable for such persons' compliance with and any breach of this Agreement. Recipient will promptly notify the Disclosing Party if Recipient or anyone to whom Recipient discloses the Confidential Information becomes legally compelled to disclose any of the Confidential Information. The Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this Agreement.
4.3. Return of Confidential Information. Upon expiration or termination of this Agreement for any reason or the Disclosing Party's earlier request, Recipient will promptly destroy or deliver to the Disclosing Party, at the Disclosing Party's option, all Confidential Information in Recipient's possession or control and written certification of Recipient's compliance with its obligations under this Section 4.3.
5. Acknowledgement. Notwithstanding anything to the contrary in this Agreement, Developer acknowledges and agrees that (a) Developer has submitted the Game and any Versions thereof (excluding source code) to Kongregate voluntarily and not in confidence or trust; (b) no confidential, fiduciary, agency or other relationship exists or has been established between Developer and Kongregate; (c) Developer is not entitled receive any compensation under this Agreement other than its share of the Game Earnings, if any; (d) Kongregate may receive independent submissions from third parties that may be similar or identical to the Game and/or Versions thereof and Developer will not be entitled to any rights in or compensation in connection with any such submissions; and (e) Kongregate may allocate revenues earned through any Web Site among the Game and/or any Version thereof and third party products and services, in Kongregate's discretion. Nothing herein affects Developer's participation in any separate Kongregate revenue sharing program. IN NO EVENT WILL KONGREGATE BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF KONGREGATE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Representations and Warranties.
6.1. By Kongregate. THE KONGREGATE IP IS PROVIDED AS IS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AND KONGREGATE DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
6.2. By Developer. Developer represents and warrants that: (a) Developer is a legal entity in good standing or an individual over 18 years of age and all information provided by Developer is accurate and truthful; (b) Developer owns all right, title and interest in and to the Game, all Versions thereof and is authorized to grant to Kongregate all rights and licenses granted herein; (c) Developer has acquired and grants to Kongregate all rights, consents, clearances and waivers necessary to grant to Kongregate the rights and licenses granted herein; (d) the Game and each Version thereof does not and will not infringe, misappropriate or otherwise violate any third party patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right of any third party or any applicable federal, state or local law, rule or regulation; and (e) Developer has not taken any action, or entered into any agreement or transaction that would directly or indirectly prevent Developer from performing hereunder. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN ANY GAME SCHEDULE, DEVELOPER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
7. Indemnity. Each party will defend, indemnify and hold the other party, its affiliates, and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, causes of action, liability, loss, costs and damages, including reasonable attorney fees, arising out of or relating to any third party claim arising from the other party’s breach of this Agreement or a claim that any Game, Version or any portion thereof infringes, misappropriates or otherwise violates any third party patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or proprietary right or any applicable federal, state or local law, rule or regulation.
8. Term; Termination.
8.1. Term. Unless earlier terminated in accordance with this Section, the term of this Agreement will commence on the Effective Date and continue so long as there are one or more Game Schedules in effect.
8.2. Termination. Either party may terminate this Agreement and all Game Schedules, or one or more Game Schedules, without cause upon 30 days' prior written notice to the other party. Within seven days of a receipt of a termination notice, Kongregate shall make commercially reasonable efforts to remove all Game(s) affected by the termination notice and any Versions from the Web Site, to cease public distribution of such Game(s) and Versions, and to delete residual copies of such Games and Versions 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 Games or any Versions that may be made by third parties on their own servers, computers, or other hardware.
8.3. Effect of Termination. Upon expiration or termination of this Agreement or any Game Schedule for any reason, Sections 1.1, 3, 4, 5, 6, 7, 8.3, and 9 will survive.
9. General.
9.1. Audit. Each party will keep true and accurate books and records relating to its performance under this Agreement. Each party will have the right, upon reasonable advance notice and during normal business hours, at such party's expense, to examine the books, records, contracts, products, services, equipment, systems, facilities and other information and documentation of the other party relating to the other party's performance under and compliance with this Agreement and all Game Earnings. All information reviewed and obtained during any examination or inspection hereunder shall be treated as Confidential Information pursuant to Section 4; provided that each party will have the right to disclose and use such information in connection with any litigation, arbitration or other action or proceeding relating to this Agreement or any other agreement between the parties.
9.2. Independent Contractor. Developer is an independent contractor and nothing in this Agreement is intended to, or will be construed to create a partnership, agency, joint venture or employment relationship. This Agreement is not an employment agreement and Developer shall not receive any wages, benefits, vacation and sick leave, bonuses, stock or stock options that employees might otherwise be entitled to. Kongregate will therefore not make any wage withholding from the amounts paid to Developer under this Agreement. Developer is not authorized to make any representation, contract or commitment on behalf of Kongregate.
9.3. Assignment. This Agreement and the rights hereunder shall not be transferable or assignable without prior written consent of both Parties, provided, however that either Party may assign this Agreement (in its entirety only) in connection with a sale of all or substantially all of its assets or equity securities to an wholly owned or controlled subsidiary or parent of the Party.
9.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law rules. Each of the parties irrevocably consents to the exclusive personal jurisdiction of and venue in the federal and state courts located in San Francisco, California, as applicable, for any matter arising out of or relating to this Agreement, except that in an action seeking to enforce any order or any judgment of such federal or state courts located in San Francisco, California, such personal jurisdiction shall be nonexclusive.
9.5. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by telecopy or facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or to such other address as either party may specify in writing.
9.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
9.7. Waiver. No waiver of any breach or any right under this Agreement shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
9.8. Injunctive Relief. A breach of any of the promises or agreement contained in this Agreement by either party may result in irreparable and continuing damage to the other party for which there may be no adequate remedy at law, and damaged party is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
9.9. Counterparts; English Language. This Agreement may be executed in one or more counterparts each of which shall be an original and all of which together shall constitute one and the same instrument. English is the authoritative text of this Agreement and all communications, notices, arbitrations and other actions and proceedings relating to this Agreement and any other agreement between the parties shall be made and conducted in English.
9.10. Entire Agreement. This Agreement and all Exhibits and Game Schedules hereto embody the final, complete and exclusive agreement and understanding of the parties hereto, and supersede all prior or contemporaneous written or oral communications or agreements between Kongregate and Developer, regarding the subject matter hereof. This Agreement may only be amended by written agreement between Kongregate and Developer.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
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THIRD-PARTY GAME REVENUE SHARE AGREEMENT
EXHIBIT A
Form of Game Schedule
Schedule No. 1
This Game Schedule No. 1 to the Third-Party Game Revenue Share Agreement dated ____________ (the "Agreement") between Kongregate, Inc. ("Kongregate") and the undersigned ("Developer") is made effective as of ______________ and is a Game Schedule subject to the terms and conditions of the Agreement. All capitalized terms not otherwise defined herein will have the meaning set forth in the Agreement.
Game(s): _______________
Game Description: ___________________________________________
Kongregate APIs: Microtransaction, Authentication, and Statistics
Game Earnings: The parties will share all Game Earnings as follows: Kongregate will retain 50% of all Game Earnings and pay Developer 50% of all Game Earnings. Advertising earnings will be split according to terms defined in the standard Kongregate uploader agreement.
Term of Game Schedule: The term of this Game Schedule will commence on the effective date of this Game Schedule and continue unless and until terminated under Section 8 of the Agreement.
Acknowledged and Agreed:
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