Publishing & Distribution Terms
PUBLISHING and Distribution Terms
Last Revised: 10 September 2025
These Publishing and Distribution Terms (the “Terms”) are a legally binding agreement between Hyper Games Ltd. and any Affiliates thereof as may be from time to time (the “Publisher”, “we” or “us”) and the studios, users, or clients (each, a “Studio”) that would like to engage with us and be provided with our publishing and distribution services (collectively, the “Services”). Each of the Studio and the Publisher shall hereinafter be referred to as a “Party” and together the “Parties”
By using any of our Services or, the Studio acknowledges and agrees that the Studio (itself or through any of its authorized signatories if the Studio is a corporate entity) have read, understood and agreed to be bound by these Terms and to comply with all applicable laws and regulations. If the Studio does not agree with these Terms, then the Studio must stop engaging with us and use of any of our services. These Terms shall govern any and all kind of Services provided by us as may become available from to time to time.
We reserve the right, at our discretion, to revise, modify or update these Terms at any time. Such changes shall be effective upon publication of the amended Terms. The last revision will be reflected in the “Last Revised” date above. Please make sure to review the Terms periodically. In the event of a material change to the Terms we will make reasonable commercial efforts to inform the Studios.
1. Definitions
For purposes of these Terms, the following terms shall have the following meanings:
“Additional Title” shall have the meaning set forth in Section 2.9.
“Affiliate” shall mean with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such Person.
“Agent” shall mean with respect to any Person, any of its respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, Affiliates, agents, representatives, predecessors, successors and assigns or any other persons authorized to act on its or their behalf.
“Arbitration” shall have the meaning set forth in Section 14.3.
“Arbitration Law” shall have the meaning set forth in Section 14.3.
“Arbitrator” shall have the meaning set forth in Section 14.4.
“Authority” shall mean any instrumentality, subdivision, court, administrative agency, commission, official or other authority, province, prefect, municipality, locality or other government or political subdivision thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority.
“Background IP” shall mean all pre-existing Intellectual Property Rights belonging to or licensed to a Party or other Intellectual Property Rights created outside the scope of these Terms without use or reliance on the other Party’s Confidential Information.
“Claim” shall mean any action, claim, lawsuit, demand, inquiry, hearing, investigation, notice of a violation or noncompliance, litigation, proceeding, arbitration, appeal, or other dispute, whether civil, criminal, administrative or otherwise.
“Claims Notice” shall have the meaning set forth in Section 11.2.
“Code Review” shall mean a process conducted by a Party to verify the quality, correctness, optimization, architecture, consistency, readability, stability, and reliability of a software or software code.
“Confidential Information” shall mean any information of a non-public, confidential and proprietary nature of the Discloser or information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, any information regarding the activities and business of the Discloser, its parent companies, subsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation, patents, patent applications, copyrights, trade secrets, industrial secrets, any other intellectual property (whether registered, non-registered or on the process of application), source code, object code, inventions, innovations, modifications, technologies, specifications, formulas, prototypes, computer programs and any and all records, data, ideas, methods, techniques, processes and projections, know-how, concepts, techniques, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials, formulas, development or experimental work, work in progress, mask work, cost data, marketing plans, product plans, business strategies, financial information, forecasts, legal documents personnel information, customer or supplier lists and other confidential proprietary information with respect to the Discloser and the Discloser’s business that derives actual or potential economic value from not being generally known to the public, to competitors or to other persons who may obtain economic value from its disclosure or use; provided however, that Confidential Information shall not include any information which: (i) is in the public domain at the time of disclosure, or subsequently becomes part of the public domain, through no breach by the Recipient of the Recipient’s obligations under these Terms and any Insertion Order; (ii) such information is received by the Recipient from a third party exempt from confidentiality undertakings;(iii) such information is proven by reasonably reliable evidence by the Recipient that it was independently conceived or discovered by the Recipient or its employees and consultants without reference to, or use of, the Discloser’s the Confidential Information; (iv) the Recipient can show reasonably reliable evidence that such information was rightfully in the Recipient’s possession at the time of disclosure, and the Recipient so advised the Discloser immediately upon disclosure or promptly thereafter; (v) is disclosed with the prior written consent of the Discloser; or (vi) required to be disclosed by applicable law, Authority or a valid court order, provided that the Recipient shall provide the Discloser with reasonable prior written notice of the required disclosure in order for the Discloser to obtain a protective order and the disclosure shall be limited to the extent expressly required.
“Consideration” shall have the meaning set forth in Section 3.1.
“Damage” shall mean any and all damages including, without limitation, loss of profits, goodwill, use, data or other intangible losses, punitive damages, liabilities, costs, debts, expenses, losses, judgments, diminutions in value, fines, penalties, demands, claims, cost recovery actions, lawsuits, administrative proceedings, orders, response action, removal and remedial costs, compliance costs, investigation expenses, consultant fees, attorneys’ and paralegals’ fees and other litigation or compliance expenses other than consequential or special damages.
“Defect” shall mean a defect, an error or any abnormality which impairs Game’s functionality or use, or a Game’s non-conformance with the description thereof in any specifications and/or documentation agreed by the Publisher and Studio including these Terms.
“Discloser” shall mean a Party that discloses information to another Party.
“Dispute” shall have the meaning set forth in Section 14.1.
“Effective Date” shall have the meaning set forth in Section 5.1.
“Electronic Agreement” shall mean either: (i) an affirmation, assent or agreement that a Person transmits to the other Person it or its affiliates by computer or other electronic device, including internet, telephonic and wireless devices, including, but not limited to, any consent a Person gives to receive communications from the other Person through electronic transmission; (ii) an agreement or a document executed or delivered by electronic transmission (via email, in PDF format or the like, or signed with “DocuSign”, “HelloSign”, e-sign or any similar form of signature by electronic means); or (iii) whenever a person clicks on an “I Agree,” “I Consent,” or other similarly worded button or entry field with a mouse, keystroke, touch enabled device or otherwise.
“Fix” shall mean any patch, fix, update required to remedy a Defect, and in the event the Studio has no access to the code comprising the Game, the support required on an ad-hoc basis to remedy the fix
“Game” shall mean any and all Platforms identified in any Insertion Order entered into between the Parties and all mobile applications collectively for which the Parties have entered into an Insertion Order or other written agreement or form referencing and incorporating the terms of these Terms, and all updates, patches, versions and expansion content thereof.
“Game Materials” shall have the meaning set forth in Section 2.3.
“Indemnitee” shall have the meaning set forth in Section 11.1.
“Insertion Order” shall mean any insertion order, statement of work or other written agreement between the Parties which reference these Terms or entail the provision of Services.
“Intellectual Property” shall mean any and all intellectual property including, but not limited to, domestic and foreign patents and patent applications, registered and unregistered trademarks, service marks and other indicia of origin, pending trademark and service mark registrations and applications for registrations thereof, registered and unregistered copyrights, copyright registrations and applications for registration thereof, internet domain names, applications and reservations therefor and universal resource locators, trade secrets, inventions (whether or not patentable) and invention disclosures, moral and economic rights of authors and inventors (however denominated), technical data, customer lists, corporate and business names, trade names, trade dress and brand names, know-how and show-how, formulae, methods (whether or not patentable) and designs, processes and procedures, technology, source code, integrated circuit topographies (whether registered or not registered), industrial designs (whether registered or not registered), object codes, computer software programs, databases and data collectors and other proprietary information or material of any type, whether written or unwritten (including but not limited to all goodwill associated with, and all derivatives, improvements and refinements of any of the foregoing).
“Intellectual Property Rights” shall mean patent rights, copyrights, trademark rights, mask work rights and any and all other intellectual property rights in inventions, improvements, designs, ideas, concepts, innovations, original works of authorship, formulas, techniques, know-how, methods, systems, processes, compositions of matter, computer software programs, databases and trade secret and with respect to each of the foregoing whether or not patentable, copyrightable or protectable as trade secrets, irrespective of whether it has been registered in a patent, copyright, trademark or other form, and irrespective of whether it constitutes a commercial or professional secret.
“Knowledge” shall mean with respect to a Party, such Party’s actual knowledge after reasonable inquiry of officers, directors and other employees of such Party reasonably believed to have knowledge of such matters; provided that a Party shall be deemed to have actual “knowledge” of a fact or matter if in exercising reasonable care an officer, director or other employee of such Party would be expected to discover or become aware of that fact or matter in the course of carrying out his or her duties and responsibilities on behalf of such Party.
“Law” shall mean any applicable statute, law, ordinance, rule or regulation of any Authority.
“Lien” shall mean lien, security interest, option, right of first refusal, the Claim, easement, mortgage, charge, indenture, deed of trust, right of way, restriction on the use, proxies, voting or trust agreements, calls or commitments of any kind, license to a third party, lease to a third party, security agreement, or any other encumbrance or other restriction or limitation on the use of property or irregularity in title thereto.
“Loss” shall mean any loss, liability, damage, cost, or expense, (including reasonable legal fees and expenses) other than consequential, special, or punitive damages.
“Merchandise” shall have the meaning set forth in Section 8.3.
“Monthly Report” shall have the meaning set forth in Section 3.4.
“Net Revenues” shall mean proceeds made (in cash or any other asset) which are actually received by after deduction of all (i) taxes, tariffs, value added tax, custom duties, import or export levies and any other governmental fee (not including tax on a Person’s income); (ii) fees payable to third parties reasonably required in connection with the transactions contemplated under these Terms and any Insertion Order; (iii) production, marketing, transportation, freight, handling charges and insurance costs, to the extent applicable; (iv) retroactive discounts, rebates, allowances and credits; and (v) any charge-backs, refunds, cancellations, fraud, third party payment processing and currency system fees and commissions, and Platform transaction fees (if not already applied by respective the Platform).
“Open Source Materials” shall mean all software or other material that is distributed as “free software”, “open source software” or under a similar licensing or distribution terms, including, but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL) the Sun Industry Standards License (SISL) and the Apache License any similar form of license.
“Overlap Period” shall have the meaning set forth in Section 6.2.
“Person” shall mean any individual or corporate entity including, but not limited to, any firm, partnership, joint venture, trust, corporation, limited liability entity as well as any unincorporated organization, estate, or any other entity (including any Authority).
“Personal Data” shall mean any information that alone or in combination with other information can be used to specifically identify an individual, including but not limited to first and last name, phone number, email address, IP address, billing information, information about an individual’s personality, location, personal status, intimate affairs, health, financial information, vocational qualifications, opinions or beliefs.
“Platform” shall mean any and all available mobile application platforms, including but not limited to iOS and Android.
“Priority A Defect” shall mean a Defect that causes the Game (in its entirety) to become inoperative or severely impaired which in turn is likely to cause commercial impact on the Studio’s business.
“Priority B Defect” shall mean a Defect that significantly and materially degrades Game’s performance or materially restricts the Publisher’s or a Game user’s ability to use Game but does not rise to the level which in turn is likely to cause commercial impact on the Studio’s business.
“Priority C Defect” shall mean a Defect that causes only a minor impact on the Publisher’s or a Game user’s use of Game.
“Publisher IP” shall have the meaning set forth in Section 8.2.
“Recipient” shall mean a Party that receives information from another Party.
“Services” shall have the meaning set forth in Section 2.1.
“Source Code” shall mean collectively, all software source code of any Intellectual Property owned or used or as currently proposed to be used by a Party as part of the Game or as required to use, develop or commercialize the Game or the Game Materials.
“Task” shall have the meaning set forth in Section 2.4.
“Tax” shall mean any federal, state, local, net income, alternative or add-on minimum, estimated, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, capital profits, lease, service, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, abandoned property or escheat, environmental or windfall profit tax, customs duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with all interest, penalties, additions to tax and additional amounts with respect thereto.
“Term” shall have the meaning set forth in Section 5.1.
“Threshold Amount” shall be set forth in each Insertion Order with Respect to each .
“Threshold Date” shall have the meaning set forth in Section 6.1.2.
“Transaction Documents” shall have the meaning set forth in Section 10.2.
“Transfer” shall mean the automatic transfer and assignment of all rights and title to the Game and any Intellectual Property related thereto to the Publisher at no further cost including the disbursement of the Consideration or any Net Revenues. The Transfer shall also include the provision of the Source Code and any other necessary Game Materials related thereto to the Publisher in order to enable the Publisher to be able to fully and completely able to further develop, commercialize and operate the Game and any underlying Intellectual Property as well as the execution and delivery of all assignment forms, licenses, consents, documents or further instruments providing for the transfer as required to perfect the transfer on the date of such Transfer. For purposes of clarity, the Transfer of the Game shall include the right to develop, acquire, manufacture, distribute, or sell sequels, expansion packs, add-ons, game-packs, spin-offs and other products based on or similar to the Game at any time and without any payment or other obligations to the Studio and that the Studio shall have no right whatsoever with respect to the same. For the avoidance of doubt, the Transfer shall also include the waiver of any and all moral rights, including any right to identification of authorship or limitation on subsequent modification, that the Studio or the Studio’s Agents and Affiliates may have with respect to the Game or the Intellectual Property.
“Transfer Date” shall have the meaning set forth in Section 6.2.
2. Appointment; Distribution Rights and Implementation Requirements
2.1. By entering into these terms, the Studio appoints the Publisher as the Game’s sole and exclusive distributor and publisher within any Platform and hereby authorizes the Publisher to perform any and all actions and services reasonably required for the successful publishing of the Game as shall be reasonably determined from time to time by the Publisher (the “Services”).
2.2. Following the Effective Date, the Publisher shall have the publishing and distribution rights to the Game and shall determine in the Publisher’s absolute and sole discretion, with the Studio’s full cooperation, all matters regarding the method, manner and extent of publishing, release, advertising, packaging, promotion, marketing, distribution, bundling, channels, pricing, terms, sales territories, trademarks, names, customer information, registration and exploitation of the Game, if any, as well as the marketing strategy, the actions, marketing operations, localization efforts and materials required for the release and publishing of the Game. The Publisher shall also be able to determine the any characteristics related to the Game including but not limited to, the Game’s name, monetization and pricing methods, applicable distribution channels, category, label, logo, icon. The Publisher shall also determine the timing and requirements pertaining to soft launches, alpha and beta versions, and full commercial launch of the Game.
2.3. Promptly following the execution of any Insertion Order referencing these Terms, the Studio will provide access to the Publisher the most current object code, Source Code, graphic assets, files, documentation, Development Tools and information required to develop, patch, update, perform maintenance activities and operate the Game (the “Game Materials”). At the sole discretion of the Publisher, the Publisher may require that all Game Materials will be uploaded to the Publisher’s designated code repository, according to the Publisher’s requirements, to enable the Publisher’s full and complete ability to provide the Services under these Terms and any Insertion Order or, alternatively, at the discretion of the Publisher, provide access to the Publisher to the most updated Game Materials, from time to time.
2.4. During the Term the Publisher may request the Studio, subject to the Studio’s prior written consent, to perform certain developments, integrations, maintenance activities, adjustments, implementation of patches and fixes and other tasks in relation to the Game (the “Tasks”) in accordance with a time schedule and requirements to be defined and determined by the Publisher (any Intellectual Property underlying any such Task, when completely performed and accepted by the Publisher will be deemed a part of the Game). If the deliverables under a Task are not accepted by the Publisher for any reason, the Studio will make best efforts to perform any required corrective actions instructed by the Publisher. Unless otherwise agreed in writing between the Parties separately, if delivery or performance of a Task is delayed by more than thirty (30) days from the scheduled date the Studio shall be deemed to be in material breach of these Terms. In addition, the Studio shall provide the Publisher with support and maintenance services in accordance with the terms of each Insertion Order.
2.5. Upon explicit and mutual written consent, the Game may include in-app purchases, cross-promotion advertisements, ad networks integrations as well as the full SDK toolkit of the Publisher. The Studio shall not implement or integrate at any time in the Game any of the same without the prior explicit written consent of the Publisher.
2.6. In the sole discretion of the Publisher, the Publisher may conduct a Code Review on the Game and the Game Materials to verify the compliance of the Studio with the terms and conditions hereof (such review shall not relieve the Studio from any and all of the Studio’s obligations and responsibilities under these Terms and any Insertion Order), following the Code Review and subjects to its outcome, the Publisher may require the performance of related Tasks providing for the improvement, fixing or patching of the Game to be adequately satisfactory in the sole discretion of the Publisher.
2.7. The Studio acknowledges and agrees that the Publisher does not guarantee any level or amount of Net Revenues, Consideration or any other income, sales or proceeds (either on a unit or revenue basis), with respect to the Game, and no representations made by the Publisher to the contrary will be binding on the Publisher.
2.8. The Studio acknowledges, covenants and agrees that the representations of the Studio under Section 10 constitute a material part of the agreement between the Publisher and the Studio and that the Publisher may rely completely on their truthfulness and accuracy and the Studio’s compliance therewith for the Term and thereafter and that no representation or warranty made, nor any document or material delivered, in connection herewith contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein or therein not misleading, in view of the circumstances in which they were made. The Studio hereby further covenants and agrees that the representations of the Studio under Section 10 shall remain true, complete, accurate and not misleading for the Term and thereafter (where applicable). If any information provided to the Publisher by the Studio or within an Insertion Order or otherwise, changes in any material respect on or after the Effective Date, the Studio agrees to promptly notify the Publisher of any change to the information provided, but in any event within fourteen (14) calendar days of such change.
2.9. The Parties agrees that the Publisher shall have a right of first offer and the right of first refusal (in the event the first offer is not accepted and an alternative third party engages with the Studio), to publish, in accordance with the terms hereof, mutatis mutandis, any sequels, expansion packs, add-ons, game-packs, spin-offs and other products based on or similar to the Game, with respect to all of the foregoing, in case their development is completed following the Effective Date (each, an “Additional Title”). Upon receipt of a bona fide proposal regarding, or if no such proposal is received, then upon decision of the Studio or an Affiliate thereof to pursue a transaction with a third party with respect to any Additional Title, the Studio will promptly provide the Publisher written notice of the terms of the proposed transaction. Upon receipt of such written notice, the Publisher and the Studio shall enter into a test period of fourteen (14) calendar days to enable the Publisher to evaluate performance of the Additional Title and upon request by the Publisher during the fourteen (14) calendar days’ period, the Studio shall promptly provide the Publisher with user metrics with respect to the applicable Additional Title. Thereafter, the Publisher shall have an additional period of fourteen (14) calendar days to consider entering into an Insertion Order with the Studio referencing and incorporating the terms of these Terms. If the Publisher elects to pursue an exercise the right under this Section 2.9, the Publisher shall deliver written notice of the same to the Studio within such period, and the parties will proceed to execute the Additional Title Addendum. If the Publisher fails to deliver the notice described in the preceding sentence within the twenty eight (28) calendar days following receipt of the Studio’s written notice of the proposed transaction, the Studio or the Affiliate, as applicable, will be free for a period of ninety (90) days thereafter to consummate the transaction on substantially the same terms, and with the third party, described in its written notice to the Publisher. In the event that the Studio or the Affiliate do not consummate the transaction within such period, the process shall repeat with respect to any other contemplated transaction.
3.1. The consideration and the specific economic terms in connection with each game shall be agreed upon in each respective Insertion Order (the “Consideration”).
3.2. Unless otherwise mentioned in a specific Insertion Order, the following terms shall apply to the Consideration:
3.2.1. The Consideration shall be the sole cost, fee or expense payable to the Studio in connection with these Terms or the Services. In the event that an Insertion Order or the engagement under these Terms are terminated, the Publisher shall be entitled to receive the Publisher’s prorated portion of any Net Revenues associated with the efforts of the Publisher (including, but not limited to, users of the Game acquired or referred in any way by the Publisher) within the three (3) months’ period following the termination.
3.2.2. The Consideration shall be calculated on a quarterly basis, for Net Revenues received by the Publisher during each quarterly period and will be paid within thirty (30) days following the end of the respective quarter in the same currency received by the Publisher. All payments under these Terms and any Insertion Order shall be made according to the wire and any other payment instructions timely given by the Studio to the Publisher against delivery to and receipt by the Publisher of a lawful tax invoice issued by the Studio. The Publisher’s calculation of Net Revenues and the Consideration owed with respect thereto shall be conclusive evidence for any and all amounts due under these Terms and any Insertion Order.
3.2.3. As of the first calendar quarter in which the Consideration is due, the Publisher shall provide the Studio with monthly reports, each month, within twenty one (21) calendar days following the month that has just ended (the “Monthly Report”). The Monthly Report shall state the Net Revenues received by the Publisher during the preceding calendar quarter and the accurate calculation of the applicable Consideration for such preceding calendar quarter.
3.2.4. In the event that the Game is not published through the account of the Publisher in any of the Platforms or if the any of the funds associated with the Net Revenues are received by the Studio, the Studio shall wire the same within thirty (30) calendar days according to the wire and any other payment instructions timely given by the Publisher to the Studio against delivery to and receipt by the Studio of a lawful tax invoice issued by the Publisher and shall retain only the Consideration.
3.2.5. Any and all payments to be made are subject to a threshold of US$500, i.e., any and all payments not equal or exceeding a threshold of US$500, will be delayed until an amount of US$500 is accrued and shall be wired thereafter in accordance with the terms hereof mutatis mutandis.
4.1. Each Party hereby acknowledges, understands, and agrees that the transactions contemplated under these terms or any Insertion Order may have tax consequences for such Party and that each Party is solely responsible for its own compliance with its tax obligations with respect to any applicable Tax.
4.2. Each Party agrees to indemnify, defend, and hold the other Party, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from such Party’s failure to report or pay any such Taxes, duties or assessments.
5.1. These Terms shall commence with respect to each Studio upon the date of entry of the Parties into the first Insertion Order between them (the “Effective Date”) and shall continue for an indefinite period of time unless terminated earlier in accordance with this Section 5 (the “Term”).
5.2. Either Party may terminate an insertion Order in accordance with its terms.
5.3. Either Party may terminate these Terms and any Insertion Order with immediate effect by providing the other Party with a written notice, in the event that the other Party:
5.3.1. commits a material breach of these Terms which is not capable of being cured or (if such breach is capable of being cured) fails to remedy such breach within a period of thirty (30) calendar days after being notified in writing to do so; or
5.3.2. suspends payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; or
5.3.3. files a petition for bankruptcy, is adjudicated bankrupt, is insolvent, makes an assignment for the benefit of creditors, enters into these Terms with its creditors pursuant to other bankruptcy law or if a notice of intention to appoint an administrator is served in respect of it, and each of the foregoing is not canceled or rescinded within a sixty (60) calendar days period.
5.4. The termination of these Terms and any Insertion Order shall not relieve either Party of its obligations to the other Party with respect to:
5.4.1. maintaining the confidentiality and non-use obligations in connection to the Confidential Information as set forth under these Terms and any Insertion Order;
5.4.2. ownership and assignment of any intellectual property referred to under these Terms and any Insertion Order, if applicable;
5.4.3. limitation of liability; and
5.4.4. any consideration due until the date of termination and thereafter, which shall be paid by the applicable Party within fourteen (14) days as of the date such consideration is due; the provisions of this Section 5 together with any other section which is necessary for the interpretation or enforcement of these Terms shall survive the expiry or termination of these Terms howsoever arising. Without derogating from the foregoing, and unless expressly stated otherwise under these Terms and any Insertion Order, all rights and licenses granted under these Terms shall terminate at the date of termination and neither Party shall have any obligation or liability to the other Party under these Terms following the date of termination.
6. Transfer of Rights upon Termination
6.1. In addition to any other obligations of the Parties upon termination in accordance with the terms hereof, upon termination of these Terms, each of the following shall apply:
6.1.1. In the event that the Game is published through the Publisher’s account in any Platform, the Publisher shall make commercially reasonable efforts to remove or transfer the Game from the Publisher’s account in each respective Platform no later than 30 days from the date of termination.
6.1.2. In the event that these Terms is terminated by the Studio, prior to the lapse of twelve months (12) months from Effective Date (the “Threshold Date”), then, the Studio hereby agrees to Transfer the Game to the Publisher no later than thirty (30) calendar days from the date of termination.
6.1.3. In the event that these Terms is terminated by the Studio, following the Threshold Date and the Net Revenues at the date of termination are equal to at least the Threshold Amount, then, the Studio hereby agrees to Transfer the Game to the Publisher no later than thirty (30) calendar days from the date of termination.
6.1.4. In the event that these Terms is terminated by the Studio, following the Threshold Date and the Net Revenues at the date of termination are equal to less than the Threshold Amount, then, the Publisher shall return the game to the Studio (if published through the account of the Publisher) and the Studio shall retain all rights and title to the Game.
6.1.5. In the event that these Terms is terminated by the Publisher, then, the Publisher shall return the game to the Studio (if published through the account of the Publisher) and the Studio shall retain all rights and title to the Game.
6.2. Upon any Transfer of the Game in accordance with this Section 6, in addition to any of the terms set forth in Section 4, the Studio represents and covenants that all material Taxes and the Tax liabilities due by or with respect to the income or operations of the Game or the ownership of the Game for all taxable years or other taxable periods that end on or before the date of the Game Transfer to the Publisher pursuant to the terms of this Section 6 (the “Transfer Date”) and, with respect to any taxable year or other taxable period beginning on or before and ending after the Transfer Date (such period, an “Overlap Period”), the portion of such taxable year or period ending on and including the Transfer Date, have been timely paid or will be timely paid in full on or prior to the Transfer Date and in connection with the Overlap Period, as soon they become due. The Studio has not been the subject of an audit or other examination of Taxes by tax authorities of any nation, state or locality with respect to the income or operations of the Game or the ownership of the Game; (ii) to the Knowledge of the Studio, no such audit is contemplated or pending; and (iii) the Studio has not received any notices from any Authority relating to any issue that could affect any Tax liability with respect to the income or operations of the Game or the ownership of the Game. All Taxes that the Studio is (or was) required by the Law to withhold or collect with respect to the income or operations of the Game or the ownership of the Game in connection with amounts paid or owing to any employee, independent contractor, creditor, equity holder or other third Party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable. There are no Liens on the Game and any Intellectual Property related thereto, that arose in connection with any failure (or alleged failure) to pay any Taxes. Immediately prior to, and immediately subsequent to, the consummation of the transfer of the Game pursuant to the terms of these Terms, the Studio will be solvent, with the ability to pay its debts as they become due. For purposes of these Terms, solvent shall mean that the present fair saleable value of the Studio’s assets is greater than the amount that will be required to pay the Studio’s liability on its existing debts as they become absolute and matured.
7. MAINTENANCE AND SUPPORT SERVICES
7.1. Support. The Studio will provide phone and e-mail technical support during the Term. The Studio shall make available support services to enable the Publisher to report any Error and to seek assistance in enquiries regarding the Game according to the table below.
7.2. Support Times. Studio shall acknowledge all Defects as soon as practicable after the Defects are reported by the Publisher. The Studio shall implement the following Defect correction procedures:
7.2.1. Priority A Defect: Studio shall initiate work on any Priority A Defect and exercise best efforts on an urgent first priority basis to provide the Publisher with a Fix within two (2) Business Days;
7.2.2. Priority B Defects: Studio shall initiate work on any Priority B Defect and exercise best efforts on an urgent first priority basis to provide the Publisher with a Fix within five (5) Business Days;
7.2.3. Priority C Defects: Studio shall initiate work on any Priority C Defect and exercise best efforts on an urgent first priority basis to provide the Publisher with a Fix within ten (10) Business Days.
7.3. Cooperation by the Publisher. The Publisher will cooperate with the Studio in view of resolving Defects, including, without limitation, by providing as much details as available about the Defect, and taking all such reasonable measures requested by the Studio in order to detect and provide further information with respect to each Defect.
8. Confidentiality
8.1. During the Term each Party in such Party’s capacity as a Recipient agrees that it will not disclose or use the Confidential Information of the Discloser without the Discloser’s prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information to prevent the disclosure of the Discloser’s the Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights under these Terms and any Insertion Order (i.e., on a “need to know” basis), who shall be advised of the Recipient’s obligations under, and will each agree in writing to comply with, this Section 7, and provided that the Recipient shall be fully responsible for such disclosures. The confidentiality and non-use obligations under this Section 7 shall survive any termination or expiration of these Terms for a period of 5 years following the date of termination or expiration of these Terms.
8.2. In each case unless explicitly provided otherwise in these Terms, the Discloser shall retain ownership of the Confidential Information and that the Recipient shall not acquire any rights therein, except the right to use such Confidential Information to the extent provided in these Terms.
8.3. Upon the expiration of these Terms, written request of the Discloser or the Recipient’s determination that it no longer has a need for such Confidential Information, the Recipient shall return or delete any and all Confidential Information and any copies in tangible form thereof or certify in writing that the Recipient has deleted all the Confidential Information and destroyed any copies in tangible form thereof. Notwithstanding the foregoing, neither Party is obligated to return or destroy any Confidential Information that (a) it is required by law or regulation to retain, (b) is commingled with other information or documents of the Recipient if it would pose a substantial administrative burden to destroy such Confidential Information, or (c) is contained in an archived computer system or backup made by the Recipient in accordance with its standard security or disaster recovery procedures, provided in each case that: (i) such retained documents will eventually be erased or destroyed in the ordinary course of records management and/or data processing procedures; and (ii) that the Recipient shall remain fully subject to the obligations of confidentiality in these Terms until the later of the eventual destruction or the termination or expiration of the confidentiality obligations set out in these Terms.
8.4. The rights, duties, and obligations of the Parties with respect to all the Confidential Information disclosed before the date of these Terms in contemplation of the execution of these Terms shall be as set forth in this Section 7.
9. Intellectual Property Rights
9.1. All Background IP is and shall remain the exclusive property of the Party owning it prior to or at the Effective Date, and except as otherwise expressly provided in these Terms, no Party shall acquire any rights, title or interest in or to the Background IP of the other Party.
9.2. The Parties agree that any and all rights to Intellectual Property made, conceived or developed by the Publisher during the performance of the Services that is not directly derived or based on the Studio’s Confidential Information, shall be deemed the Publisher’s exclusive property and shall vest absolutely and exclusively in the Publisher (collectively, the “Publisher IP”).
9.3. The Studio hereby grants the Publisher, during the Term, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable (except as permitted under these Terms and any Insertion Order) license to install, use, run, execute, embed, display, create derivative works (solely for the purpose hereof) and perform the Game in its systems, social media accounts and in any Platform or medium as well as to market, produce, manufacture, physical and digital products based on, or derived from, the Game, the Game Materials or any Intellectual Property related thereto (the “Merchandise”).
9.4. Other than as expressly set forth in Section 5, the provisions of this Section 8 remain in full force and effect after termination or expiration of these Terms for whatever reason.
10. Representations of the Publisher
The Publisher represents and warrants to the Studio that: (i) the Publisher is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into these Terms and to carry out the provisions of these Terms and the Person entering into these Terms on its behalf is authorized to do so; (ii) the execution and delivery of these Terms and the fulfillment of the terms hereof will not constitute a default under or conflict with any these Terms or another instrument to which the Publisher is party or by which the Publisher is bound nor will it result in a breach of any confidentiality undertaking to any third party and will not use any proprietary information of any third party, (iii) the Publisher will comply with all applicable laws, statutes, ordinances, administrative orders, rules and regulations in connection to its performance of these Terms, and (iv) there are no contracts, impediments, hindrances or restrictive covenants preventing the full performance of the Publisher’s duties and obligations under these Terms and any Insertion Order, and nothing contained in these Terms shall require or permit the Publisher to do any act inconsistent with the requirements of any statute, regulation or rule under any applicable law that may be in effect from time to time.
11. Representations of the Studio
The Studio hereby represents and warrants to the Publisher as follows:
11.1. Where the Studio is a corporate entity, the Studio is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite power (corporate or otherwise) and authority to own and operate its properties and to carry on its business as now being conducted. The Studio is duly qualified or licensed to do business and is in good standing under the laws of the jurisdiction of its incorporation.
11.2. These Terms, any Insertion Order, and any other documents to be executed or delivered in connection herewith (collectively with these Terms, the “Transaction Documents”) by the Studio and the consummation of the transactions contemplated hereby have been or, in the case of the Transaction Documents other than these Terms, will be prior to the Effective Date, duly authorized by all requisite corporate, equity holder or other similar action, and no other corporate or similar proceedings on the part of the Studio are necessary or required to authorize the execution, delivery, filing or performance of these Terms or the other Transaction Documents or to consummate the transactions contemplated hereby, and the Studio has or will have at or prior to the Effective Date full power and authority (including full corporate power and authority) to execute and deliver the Transaction Documents and to perform the Studio’s obligations under these Terms and any Insertion Order or other Transaction Documents. These Terms has been duly executed and delivered by the Studio, and the other Transaction Documents will be duly executed and delivered by the Studio, and these Terms constitutes, and each of the other Transaction Documents when so executed or delivered will constitute, assuming the due execution and delivery of these Terms and the other Transaction Documents by the Publisher, a valid and legally binding obligation of the Studio, enforceable against the Studio in accordance with its terms, except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
11.3. The execution, delivery or performance of these Terms and the other Transaction Documents by the Studio and the consummation by the Studio of the transactions contemplated hereby will not (i) violate or conflict with any provision of the organizational documents of the Studio, (ii) result in any breach or constitute any default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, modification, payment or acceleration of any obligation or a loss of a material benefit, or to increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation any Claim, or Lien, or require any notice under contract to which the Studio is subject or is a Party, (iii) constitute or result in a default under any provision of any contract applicable to the Game and no consent of any Person is needed in order for the Studio to be able to enter into these Terms, (iv) violate, conflict with, be subject to, or result in any breach under any provision of any law or order applicable to the Studio or the Game and any Intellectual Property related thereto, or (v) require the consent, permit or approval of any Authority.
11.4. There are no Claims pending or threatened before any Authority against the Studio in connection with the Game and there is no valid basis for any such Claim. The Studio is not subject to any order entered in any Claim in connection with the Game.
11.5. The Studio is in compliance with all rules, terms and conditions of any and all applicable Platforms as well as any laws and orders applicable to the Game and to the Knowledge of the Studio, no event has occurred or circumstance exists that (with or without notice or lapse of time or both) (i) could reasonably be expected to constitute or result in a violation by the Studio, or a failure on the part of the Studio, to comply with such laws or orders, or (ii) could reasonably be expected to give rise to any obligation on the part of the Studio applicable to the Game to undertake, or to bear all or any portion of the cost of, any remedial action of any nature. The Studio has not received during the past five (5) years any notice that alleges that the Studio is not in compliance with any laws or orders with respect to the Game.
11.6. All agreements, contracts and licenses existing as of the date of these Terms which involve licenses granted by the Studio to any third the Party with respect to any item of Intellectual Property included in the Game and the Game Materials, or that grant to the Studio a license for the use of Intellectual Property (excluding commercially available, off-the-shelf software) used in the Game and any related Intellectual Property are in full force and effect and is the legal, valid and binding obligation of the Studio and each of the other parties thereto, enforceable in accordance with the terms thereof, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. To the extent any Intellectual Property is used in the Game by the Studio under license, the Studio is not in default under any such license. To the Knowledge of the Studio, no other Person is in default under any such license and there is no event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default by the Studio or, to the Knowledge of the Studio, any other Person. the Studio does not intend to terminate any such license. To the Knowledge of the Studio, no other Person intends to terminate (whether for cause or convenience) or cause a default under any such license before its stated term, if any. There are no pending negotiations regarding a downward adjustment in price or other modification to any such license that could be expected to result in terms that are adverse to the Game, or any attempt or outstanding rights to negotiate such downward adjustment in price or such other modification under any such license, and no Person has made a demand for any such renegotiation.
11.7. The Studio has not made any Claim of a violation, infringement, misuse or misappropriation by any third Party (including, without limitation, any employee or former employee of the any shareholder of the Studio) of its rights to, or in connection with, any Intellectual Property, which Claim is still pending.
11.8. The Studio has not received any notice or Claim from any third Party challenging the right of the Studio to use any of the Intellectual Property.
11.9. The Studio owns or is licensed to use all of the Intellectual Property, free and clear of any Liens and other adverse Claims, without obligation to pay any royalty or any other fees with respect thereto. The Studio’s use of the Intellectual Property (including, without limitation, the development, creating derivative works, marketing, licensing, sale or distribution of products and the general conduct and operations of the Game) does not violate, infringe, misappropriate or misuse any Intellectual Property rights of any third Party.
11.10. All current and former employees, individual consultants, interns and individual independent contractors of the Studio, including without limitation those who are or were involved in, or who have developed, invented, discovered, derived, programmed, designed or in any way contributed to, the creation or development of any Intellectual Property have executed and delivered to the Studio a written Agreement, that is substantially identical to the forms of invention assignment, employment, independent contractor and/or consulting services agreements, as applicable, previously delivered by the Studio to the Publisher, pursuant to which any and all the Intellectual Property of any kind necessary for or relevant to the Game developed by any of such employee or consultant of the Studio during the course of such Person’s employment or engagement by the Studio or using the Studio’s facilities or resources, shall be the property solely of the Studio for no additional consideration and irrevocably assigning (with no exceptions to or exclusions from the scope of such assignment’s coverage) to the Studio all rights in the Intellectual Property developed in the course of their employment or engagement by the Studio. The Studio’s employees and consultants have expressly waived any rights, including moral rights, they may have had to compensation or royalties in connection with any inventions arising as a consequence of service to the Studio (to the extent such specific waiver is necessary under applicable Law). To the Knowledge of the Studio, no current or former employee, consultant, intern or independent contractor is in violation of any term of any such Agreement, or any other Agreement relating to the relationship of any such employee, consultant or independent contractor with the Studio.
11.11. The Studio has taken all reasonable measures to preserve and maintain trade secrets included in the Intellectual Property and the rights of the Studio thereto and to cause the same to be readily understood, identified and available in order to ensure the ability of the Studio to account for, enforce rights under, make use of, understand and memorialize the rights of the Studio in the Intellectual Property. The Studio has taken all necessary security measures to protect the secrecy, confidentiality and value of the Game, the Game Materials and any related the Intellectual Property, which measures are reasonable and customary in the industry in which the Studio operates. All vendors and other third parties to whom trade secrets or confidential information have been or may be disclosed have entered into a confidentiality Agreement with the Studio, which is valid and binding on the Studio and to the Knowledge of the Studio, on the other Party thereto.
11.12. The Studio has not incorporated the Open Source Materials into, or combined the Open Source Materials with, the Intellectual Property or the Game or distributed Open Source Materials in conjunction with any Intellectual Property or the Game or used Open Source Materials, in such a way that, with respect to the foregoing actions, creates, or purports to create obligations for the Studio with respect to any Intellectual Property or grant, or purport to grant, to any third Party, any rights or immunities under any Intellectual Property (including using any Open Source Materials that require, as a condition of use, modification and/or distribution of such Open Source Materials that other software incorporated into, derived from or distributed with such Open Source Materials be (i) disclosed or distributed in the Source Code form, (ii) be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge). Each of the Game and any related Intellectual Property (excluding those in development) contains all notices, legends, license terms, restrictions, disclaimers and attributions required by Open Source Materials used by the Studio. The Studio is in compliance in all respects with all its agreements and contracts pertaining to the Open Source Materials.
11.13. Neither the Studio nor any other Person acting on its behalf has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, result in the disclosure, delivery or license by the Studio or any Person then acting on its behalf to any Person of any Source Code.
11.14. The Studio has complied in all material respects with all applicable laws, contractual and fiduciary obligations, and the Studio’s privacy policies relating to (i) the privacy of the users of the Game, and (ii) the collection, storage, use, transfer and any other processing of any Personal Data collected or used by the Studio in any manner or maintained by third parties having authorized access to such information in connection with the Game. The Studio has at all times obtained all consents from users or customers and made all disclosures to users or data subjects required by applicable laws relating to privacy or data, and none of such disclosures made or contained in any such privacy policy or in any such materials has been inaccurate, misleading or deceptive.
12.1. Either Party will defend, indemnify and hold harmless the other Party and its, the Agents, successors and assigns (each an “Indemnitee” and collectively, the “Indemnitees”) from and against any Claim or Loss of any Indemnitee and those that may be asserted by a third party in accordance with this Section 11) suffered by or imposed upon an Indemnitee by any third party arising from or related to: (i) any breach of such Party’s representations, warranties or covenants under these Terms; (ii) any gross negligence or intentional misconduct by such Party (or its Agents) in performing its obligations under these Terms; (iii) the breach or infringement of any third party’s rights, trade secrets, trademarks, patent and any other similar rights due to materials, requirements, requests, creative requirements, specifications or instructions provided by such Party in the performance of these Terms.
12.2. In the event that an Indemnitee wishes to assert a Claim for indemnification under these Terms and any Insertion Order it shall give the indemnifying Party a prompt written notice thereof (hereinafter, a “Claims Notice”), which shall describe in reasonable detail the facts and circumstances upon which the asserted Claim for indemnification is based and thereafter keep the indemnifying Party informed, in all material respects, with respect thereto. In the event that such Claims Notice results from a third party Claim against the Indemnitee such Indemnitee shall, promptly upon becoming aware of the commencement of proceedings by such third party, provide the indemnifying Party with the Claims Notice and the indemnifying Party shall have the right to assume the defense thereof (at indemnifying Party’s expense) with counsel mutually satisfactory to the parties (such acceptance not to be unreasonably withheld); provided, however, that any adjustment, settlement or compromise of such Claim which reduces the limitation of liability of the indemnifying Party shall be subject to prior written consent of the Indemnitee (such consent not to be unreasonably withheld or delayed), and that the Indemnitee shall have the right to retain its own counsel, at the expense of the Indemnitee, and within the indemnification limitations herein, if representation of all parties by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the parties in such proceeding. Failure of an Indemnitee to give prompt notice or to keep the indemnifying Party informed, as provided herein, shall not relieve the indemnifying Party of any of its obligations under these Terms and any Insertion Order, except to the extent that the indemnifying Party is actually and materially prejudiced by such failure. The indemnifying Party shall not be liable nor shall it be required to indemnify or hold harmless the Indemnitee in connection with any settlement effected without its consent in writing, which shall not be unreasonably withheld or delayed. Anything to the contrary notwithstanding, any adjustment, settlement or compromise referring and/or relating to the fault, guilt or culpability of an indemnifying Party shall require such indemnifying Party’s prior written consent, in its sole discretion.
12.3. The provisions of this Section 11 remain in full force and effect after termination or expiration of these Terms for whatever reason.
13.1. Except in cases of willful misconduct, fraud or violation of confidentiality obligations under these Terms, in no event shall either the Party be liable to the other Party for any loss or damage in respect of any (i) loss of profit, opportunity, business, or goodwill (in each case whether direct or indirect); or (ii) any indirect, consequential, punitive, exemplary or special damages or losses, arising under or in connection with these Terms.
13.2. Notwithstanding anything to the contrary under these Terms and any Insertion Order, the Publisher’s total liability to the Studio, whether in contract, tort (including negligence) or otherwise under these Terms, shall in no circumstance exceed the total amount actually received by the Publisher for the Services under these Terms and any Insertion Order in the preceding twelve (12) months, except in cases of the Publisher’s willful misconduct, fraud or violation of confidentiality obligations under these Terms. The Publisher shall not be liable for any failure, error or delay in performing the Services if such failure, error or delay is caused by the Studio, or is a result of an express instruction from the Studio.
13.3. It is hereby clarified that both the Studio and the Publisher are subject to the terms, conditions and policies of each respective Platform, as such, certain obligations of the Publisher are subject to such terms, conditions and policies of each respective Platform and other third parties. Accordingly, the Studio releases, to the fullest extent permitted by applicable Law, the Publisher and any of its respective Affiliates or Agents, from all and any responsibility, liability, Claims and/or Damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of the acts or omissions of third parties. The Studio expressly waives any rights the Studio may have under any law that would otherwise limit the coverage of this release to include only those Claims which the Studio may know or suspect to exist in the Studio’s favor at the time of agreeing to this release.
13.4. The provisions of this Section 12 remain in full force and effect after termination or expiration of these Terms for whatever reason.
14. Relationship of the Parties
14.1. It is hereby expressly acknowledged and agreed that in performing any of the actions and the transactions contemplated under these Terms and any Insertion Order, each Party acts independently and neither these Terms nor the performance hereof shall be construed as creating between the Parties any partnership, joint venture, employment relationship, franchise or agency or any other similar relationship other than the performance of the obligations of the Parties in accordance with the terms of these Terms unless explicitly set forth, and as expressly limited in the scope set forth, in these Terms.
14.2. Each Party is an independent contractor and is not the other Party’s representative or agent for any purpose and will not represent itself as such or act in any way which might imply that such Party and the other Party are not separate and distinct entities. Neither Party has the authority to assume or create any obligation of any nature or to make any representation, guarantee, or warranty on the other Party’s behalf without the other Party’s prior written approval.
15. Governing Law; Jurisdiction; Dispute Resolution