Game License Uploading Agreement

THIS GAME LICENSE UPLOADING AGREEMENT ("Agreement") is made and entered into by and between Kongregate, Inc., a Delaware corporation with its principal office in the State of California, United States ("Kongregate"), and You, the developer of an online game ("Developer"). Through this agreement, Developer submits a game and related materials (Developer Materials) to Kongregate for inclusion on Kongregate's website, in Kongregate's online gaming services, including syndicated services, in Kongregate products, or in other media whether now or hereafter created (Kongregate Platform). The effective date is the date on which Developer submits the Developer Materials to accept this Agreement. For good and valuable consideration, the parties agree as follows:

1. Ownership. Developer shall retain all right, title, and interest in and to any games or materials that the Developer uploads to the Kongregate website or otherwise provides to Kongregate ("Developer Materials").

2. License. Developer hereby grants to Kongregate a worldwide, non-exclusive right and license to use, reproduce, distribute, display, publicly perform, deliver, market, and promote, Developer Materials through the Kongregate Platform.

3. Royalties. In certain cases Kongregate may pay you a royalty for the use of your Developer Materials based on advertising revenue, if any, generated by 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 ad revenue associated with your game. If you use the Kongregate Stats API, you will receive a 10 percentage point bonus royalty and if your game is exclusive to Kongregate you will receive a 15 percentage point bonus royalty, for a maximum possible royalty of 50% of the net ad revenue received. Net ad revenue is gross ad revenue less fees, commissions and expenses paid to third parties. Developer agrees that Kongregate, in its sole discretion, will determine royalty qualifications, percentages and amounts due to Developer and that such qualifications and percentages are subject to change by Kongregate.

4. License Termination. The license granted by Developer to Kongregate may be terminated by Developer by following the online license termination process on the Kongregate website or such other location of the Kongregate Platform. Within seven days of a receipt of a termination request, Kongregate shall make commercially reasonable efforts to remove the Developer Materials from the Kongregate Platform, to cease public distribution of Developer Materials, and to delete residual copies of Developer Materials on Kongregate servers and other machines not available to the general public. Notwithstanding the foregoing, Kongregate will not be responsible for removing copies of the Developer Materials that may be made by third parties or end users on their own servers, computers, or other hardware.

5. Developer Warranties. Developer warrants and represents that: (i) Developer has the right to grant the license described in this Agreement; (ii) the Developer 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; (iii) the Developer Materials do not contain any viruses, corrupted files, backdoors, or any other similar software or programs that may adversely affect end users of the Developer Materials or the operation of the Kongregate Platform, Kongregate's servers, or its systems, software or hardware; (iv) the Developer Materials do not contain falsehoods or misrepresentations or content that could give rise to a criminal offense, civil liability, violate any law, or is otherwise inappropriate; and (v) Developer's entry into this Agreement does not violate any laws, rules, or regulations which govern Developer or constitute a breach, event of default, or violation of any agreement by which Developer is bound; and (vi) the Developer Materials do not accept payments from or display dynamically served advertisements to users, nor do they provide a premium service for payment accepted elsewhere, except as authorized or provided by Kongregate.

6. Additional Warranties. Both parties warrant and represent that (i) its signatory has been duly authorized on its behalf to enter into and execute this Agreement and (ii) it has the requisite authority to enter into and be bound by this Agreement.

7. Indemnity. Developer 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 (i) a violation by Developer of the terms of this Agreement or Developer's obligations, representations, or warranties hereunder, (ii) a third-party claim that the Developer Materials infringe any patent, copyright, trademark, trade secret, right of privacy or publicity, or any other proprietary right of a third party.

8. Waiver. KONGREGATE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR, (I) THE AVAILABILITY, ACCURACY OR COMPLETENESS OF THE KONGREGATE PLATFORM, (II) ANY ERRORS, MISTAKES, OR INACCURACIES OF THE DEVELOPER MATERIAL AS INCORPORATED INTO THE KONGREGATE PLATFORM, (III) ANY UNLAWFUL COPYING OF THE DEVELOPER MATERIALS, UNAUTHORIZED ACCESS TO OR USE OF THE DEVELOPER MATERIALS ON THE KONGREGATE PLATFORM, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE KONGREGATE PLATFORM, (V) COMMUNICATIONS OR ACTIONS OF KONGREGATE PLATFORM USERS, OR (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE KONGREGATE PLATFORM OR OTHERWISE DURING DEVELOPER'S PROVISION OF THE DEVELOPER MATERIALS TO KONGREGATE.

9. Limitation of Liability. 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 DEVELOPER FOR DAMAGES EXCEED $5.00 USD.

10. Governing Law/Jurisdiction/Venue. This Agreement 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. The parties each 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.

11. Entire Agreement. This Agreement 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 may amend this Agreement upon ten (10) days prior notice delivered to the email address provided by Developer to Kongregate.

12. 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.

13. Counterparts. This Agreement may be executed in one or more counterparts, each of which, taken together, shall be considered one and the same document.

By submitting the Developer Materials to Kongregate, Developer expressly recognizes and agrees that any data or information Developer provides to Kongregate, including personally identifiable information, will be provided to Kongregate, with its principal office located in the State of California, in the United States, and Kongregate shall have the right to receive and use such data or information for any and all purposes consistent with this Agreement and related terms and conditions applicable to the Kongregate Platform.