PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE TENCENT DISTRIBUTION PLATFORM (AS DEFINED BELOW) TO DISTRIBUTE YOUR GAME.
THIS TENCENT WEGAME DISTRIBUTION AGREEMENT ("AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU ("DEVELOPER") AND ENTROPY GAME GLOBAL LIMITED, A COMPANY REGISTERED IN HONG KONG WHOSE REGISTERED OFFICE IS AT RM 907, WING TUCK COMMERCIAL CENTRE, 177-183 WING LOK STREET, SHEUNG WAN ("TENCENT") AND THE TERMS AND CONDITIONS HEREIN GOVERN USE OF THE TENCENT DISTRIBUTION PLATFORM TO DISTRIBUTE PC GAMES. BY DISTRIBUTING A PC GAME THROUGH THE TENCENT DISTRIBUTION PLATFORM, OR INDICATING YOUR ACCEPTANCE IN ANY MANNER (INCLUDING BY EMAIL OR BY CLICKING A BUTTON), DEVELOPER ACCEPTS, AND AGREES TO BE LEGALLY BOUND BY, THIS AGREEMENT. TENCENT IS WILLING TO DISTRIBUTE DEVELOPER'S LICENSED GAME ON THE TENCENT DISTRIBUTION PLATFORM ONLY UPON THE CONDITION THAT DEVELOPER ACCEPTS ALL THE TERMS CONTAINED IN THIS AGREEMENT.
If you are accepting the terms of this Agreement on behalf of a company or other entity or organization you represent and warrant that you have (i) submitted complete and accurate information with respect to such company, entity, or organization pursuant to the Tencent's identity confirmation process and (ii) the authority to bind that to such company, entity, or organization to the terms of this Agreement. In such event, "Developer" will refer to that the company, entity, or organization identified during Tencent's identity confirmation process.
IF DEVELOPER DOES NOT ACCEPT ALL THE TERMS OF THIS AGREEMENT, THEN TENCENT IS UNWILLING TO DISTRIBUTE DEVELOPER'S LICENSED GAME THROUGH THE TENCENT DISTRIBUTION PLATFORM.
1. DEFINITIONS
1.1"Affiliate" shall mean a person or entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with a party.
1.2"Business Day" means any day other than a Saturday, Sunday or statutory holiday in the People's Republic of China.
1.3"Commercial Launch" means the date the Licensed Game is made commercially available by Tencent under this Agreement to a non-limited number of End Users via the Tencent Distribution Platform.
1.4"Configurable Business Terms" means following information that Developer submits to the Tencent Distribution Platform to establish details as to the Developer and Licensed Game: Developer entity that is a party this Agreement, Territory for the Licensed Game, title for the Licensed Game, and Developer's bank account information.
1.5"Developer Platform" means the online platform made available by Tencent to provide Developer with the Sales Data and other information related to the distribution of the Licensed Game.
1.6"Developer Revenue Share" means 80% (eighty percent) of the Gross Revenue from the Licensed Game.
1.7"DLC" means any online content or feature that is made available by Developer for Purchase, download, or online access separate from the base version of the Licensed Game, whether through in-game transactions or otherwise, including any item, item set, avatar, attribute, ability, additional filters, expansion packs, game scenarios, maps or map packs, skill, skill level, service, stock multimedia, "VIP" status privilege, or other in-game consumable, feature, or functionality which may be acquired or used by an End User within the Licensed Game. In some instances, DLC may be purchased using Game Virtual Currency.
1.8"Effective Date" means the date Developer agrees to the terms of this Agreement.
1.9"End User" means an end user of the Tencent Distribution Platform.
1.10"Game Distribution Data" means any data that Tencent collects from End Users relating to the distribution and Purchase of the Licensed Game, DLC, and Game Virtual Currency.
1.11"Game Virtual Currency" means any virtual currency or other denotation of value that is made available only within the Licensed Game, which may be used by an End User to purchase DLC.
1.12"Game Refund Policy" means the Tencent WeGame Game Refund Policy located at https://developer.wegame.com/developer/static/refund_policy_en.html.
1.13"Game Removal Policy" means the Tencent WeGame Game Removal Policy located at https://developer.wegame.com/developer/static/removal_policy_en.html
1.14"Gross Revenue" means all amounts actually received by Tencent from End Users for the Purchase or download of the Licensed Game and for the Purchase of DLC and Game Virtual Currency less deductions for actual, documented and recorded taxes (including goods and service taxes, sales taxes, business taxes, value added taxes and intra-territorial withholding taxes, as may be applicable), charge-backs, refunds, bad debts, cancellations and fraud arising out of such transactions.
1.15"Licensed Game" means the PC Version of the interactive entertainment product identified in the Configurable Business Terms, which is provided by Developer to Tencent for distribution over the Tencent Distribution Platform, including all DLC, Localized Versions, and Upgrades provided therefore.
1.16"Licensed Marks" means all trademarks, service marks, trade dress, words, names, symbols, icons, devices, designs, short phrases, short sayings, and other designations, and combinations of the preceding items, used by or on behalf of Developer to identify or distinguish the Licensed Game or Developer, including titles, logos, product designs, product features, character names, character images, place names, scenes, and events, or other content or elements described in the Licensed Game, as well as any translations, transliterations, foreign language equivalents, and combinations, and any other titles or names to which the parties mutually agree. "Tencent Marks" are not Licensed Marks and in all cases are and will remain the sole property of Tencent.
1.17"Localized Version" means any version of the Licensed Game created for any country or territory in the Territory.
1.18"PC Version" means a version of a product that is primarily accessed via a personal computer ("PC") via client software on any past, present or future PC operating systems.
1.19"Personal Data" means any data or information that can be used, individually or together with other information, to identify, contact, or locate an End User, including a person's name, mailing address, email address, Tencent ID or similar account ID, telephone number, financial information, or government-issued identifier.
1.20"Purchase" means the purchase of the Licensed Game, DLC or Game Virtual Currency by using cash, pre-paid cards, or any other available payment method.
1.21"Sales Data" means non-personally identifiable sales and activation data for End Users of Tencent Distribution Platform that is retained by Tencent for analysis of games.
1.22"Subscriber Agreement" means the Tencent WeGame Subscriber Agreement between Tencent and End Users that governs End Users' access to the Tencent Distribution Platform and games presented thereon. The current Subscriber Agreement can be found at https://developer.wegame.com/developer/static/subscriber_agreement_en.html
1.23"Developer Agreement" means the Tencent WeGame Platform Developer Agreement entered into between Developer and Tencent. The current Developer Agreement can be found at https://developer.wegame.com/agreements/wegame_developer_agreement_en.html
1.24"Tencent Marks" means all trademarks, service marks, trade dress, words, names, symbols, icons, devices, design, short phrases, short sayings, and other designation, and a combination of the preceding items, used by or on behalf of Tencent or its Affiliates to identify or distinguish any version of the Tencent Distribution Platform or any of Tencent, its Affiliates, or their respective products or services.
1.25"Tencent Distribution Platform(s)" refers to online PC game distribution platform(s) owned or controlled by Tencent or its Affiliates.
1.26"Tencent Distribution Platform Data" means any data or information that is submitted by an End User through the Tencent Distribution Platform or otherwise collected by Tencent as a result of an End User's access or use of the Tencent Distribution Platform, including user name, password, profile, social graph data, any Tencent ID, and email address.
1.27"Tencent Distribution Platform Feature" means any service or feature made available to End Users or Tencent via the Tencent Distribution Platform.
1.28"Territory" means worldwide unless otherwise set forth in the Configurable Business Terms.
1.29"Upgrade" means any modification, addition, revision, improvement, or extension of the Licensed Game, DLC, or other product, correction, update, upgrade, patch, enhancement, extension, or new release, whether combined with the Licensed Game or DLC, or distributed, marketed, or sold separately or sold under a different title.
1.30 Other Terms. Other capitalized terms used but not defined where they initially appear in these Terms and Conditions will have the meanings set forth during the registration process or within the Configurable Business Terms.
2. LICENSE
2.1 License Grant. Subject to the terms and conditions of this Agreement, Developer hereby grants, under all intellectual property rights (including patent rights) in the Licensed Game at no extra charges, to Tencent and its Affiliates a non-exclusive, non-transferable (except in accordance with Section 16.6) license to:
(a) reproduce, distribute, publicly display and perform, stream, broadcast, transmit, sell, offer for sale, market, and otherwise use the Licensed Game in object code form in the Territory to (i) make the Licensed Game (or any portion thereof) available to End Users on the Tencent Distribution Platform, including but not limited to distributing the Licensed Game, or any portion thereof, to End Users to download, install and use the Licensed Game via the Tencent Distribution Platform; and (iii) host the Licensed Game, or any portion thereof, to enable End Users to access and play the Licensed Game through the Internet or other online service on the Tencent Distribution Platform.
(b) use, publicly display and perform, make derivative works of, reproduce, and distribute any Licensed Marks associated with the Licensed Game (including materials such as screenshots, characters, and graphic designs from the Licensed Game) at no extra charges (i) in connection with distributing or hosting the Licensed Game in accordance with subsection (a) and (ii) to market, advertise, promote, and use the Licensed Game in the Territory, including in promotional and marketing materials.
2.2 Gameplay Streaming Features. The Tencent Distribution Platform includes certain streaming features that allow End Users to share and access their gameplay experiences with Tencent and third-party applications and services. Subject to the terms and conditions of this Agreement, Developer hereby grants Tencent and its Affiliates a non-exclusive, paid-up, non-transferable (except in accordance with Section 16.6) license to broadcast, transmit, distribute, publicly display and perform, reproduce, and stream gameplay of the Licensed Game with Tencent and third-party applications and services.
3. DELIVERY AND IMPLEMENTATION
3.1 Localization. Developer may create different Localized Versions in local language for any country or territory in the Territory. Developer represents and warrants it will perform all work necessary to integrate the Localized Versions into the Tencent Distribution Platform.
3.2 Platform Compatibility. Developer will make the Licensed Game compatible with the Tencent Distribution Platform and any Tencent Distribution Platform Features that Developer may choose to use. Developer will, in cooperation with Tencent, use reasonable efforts to maintain compatibility of the Licensed Game with the Tencent Distribution Platform and those Tencent Distribution Platform Features that Tencent may choose to update or upgrade in the future.
3.3 Quality Assurance and Compliance. Before delivering the Licensed Game to Tencent, Developer will perform quality assurance and other error testing of the Licensed Game (including any other deliverables delivered under this Agreement) consistent with industry standards and testing guidelines provided or published by Tencent. Developer must ensure that the Licensed Game distributed via the Tencent Distribution Platform complies with this Agreement and all applicable Tencent policies that are communicated to Developer. Distribution of the Licensed Game, or any withdrawal of the Licensed Game from the Tencent Distribution Platform, will not relieve Developer of its responsibilities to ensure the Licensed Game complies with this Agreement and to perform all other obligations under this Agreement.
3.4 Integration with Tencent Distribution Platform. Tencent will provide Developer with access to material necessary for integration (e.g., application protocol interfaces and software development kits) pursuant to the Developer Agreement, and will use commercially reasonable efforts to provide integration support to Developer.
3.5 Delivery. After Developer creates the Localized Version in accordance with this Section 3, Developer may deliver to Tencent a complete copy of each Localized Version within a reasonable period of time. Thereafter, Developer will deliver to Tencent any Upgrades of each Localized Version immediately after those Upgrades become available, but no later than when made available for distribution elsewhere. Developer provide these copies in object code form, in whatever format Tencent reasonably requests.
3.6 Testing and Certification. After its receipt of a Localized Version or Upgrade, Tencent may test and evaluate the Localized Version and Upgrade using the quality assurance standards that Tencent uses for similar games. Tencent will issue to Developer a notice of rejection if the Localized Version or Upgrade fails Tencent's standards or tests. Upon receiving a rejection notice from Tencent, Developer will use commercially reasonable efforts to correct the rejected Localized Version and Upgrade and deliver to Tencent the corrected version for re-testing within a mutually agreed upon period. The corrected version will be subject to the same test and evaluation process described in this Section 3.6 until it is certified by Tencent. Tencent's testing of the Localized Versions or Upgrades does not relieve Developer of any support or performance requirements hereunder.
3.7 DLC. If Developer distributes any DLC for the Licensed Game through any distribution channel other than the Tencent Distribution Platform, Developer will make available and deliver to Tencent, no later than the time that end users of that distribution channel receive such DLC, a comparable DLC for the Tencent Distribution Platform. Developer may offer special and unique promotional content through another distribution channel so long as Developer maintains parity between end users of that distribution channel and Tencent's End Users who have made a comparable investment in the Licensed Game and DLC.
3.8 No Other In-Game Stores. Developer will not include in the Licensed Game distributed via the Tencent Distribution Platform any functionality from or links or references to any store other than the Tencent Distribution Platform, or any other facility for making purchases or payments.
3.9 Game Approvals. Developer represents and warrants that, prior to any submittal, Developer has received approvals from any governmental entity with the authority to license, approve or otherwise restrict the publishing of the Licensed Game in the Territory ("Game Approvals") and that the Licensed Game will comply with all such requirements.
4. OPERATION AND MAINTENANCE
4.1 Content. Developer is solely responsible for creating, updating, maintaining, and developing the Licensed Game (including all Upgrades, Localized Versions, and DLC), and making them available to Tencent in accordance with this Agreement.
4.2 Distribution and Withdrawal
(a) Tencent. Tencent has the sole right to create, design, edit, manage, and otherwise control the presentation of the Tencent Distribution Platform. Tencent may stop or restrict any End User access or transaction or any other transaction, or take any other actions to restrict access to or the availability of the Licensed Game if the Licensed Game or any part of it fails to comply with this Agreement or any Tencent policy.
(b) Developer. Developer will maintain all rights to the Licensed Game necessary to grant the rights to Tencent and End Users that are granted in this Agreement.
4.3 EULA. Tencent will sublicense the right to install and use the Licensed Game to End Users in accordance with Section 2.1. If Developer presents a separate end-user license agreement to govern the relationship with End Users with regard to the Licensed Game ("EULA"), such EULA may not contain any terms and conditions that are in conflict with the terms and conditions included in this Agreement, the Subscriber Agreement, or any other agreement between Tencent and End Users. Without limiting the foregoing, any such conflicts will be considered null and void and the terms of this Agreement, the Subscriber Agreement, and any other agreement between Tencent and End Users will supersede any conflicting terms in the EULA. If Developer elects to bind End Users to a EULA, that EULA must:
(a) acknowledge that the EULA is concluded between Developer and the End User only, and not with Tencent;
(b) to the maximum extent allowed by applicable law, disclaim any warranties, limit liability, and exclude damages on behalf of Tencent and its Affiliates;
(c) disclaim any obligation on the part of Tencent or its Affiliates to provide support or other services;
(d) state that Developer is responsible for addressing any claims of the End User or any third party relating to the quality, functionality, or gameplay for Licensed Game;
(e) not prevent or limit access to the Licensed Game; and
(f) not purport to govern or change, in any way, the End User's relationship with Tencent under Tencent's applicable agreements with such End User, including the Subscriber Agreement.
4.4 Quality Control and Correction. Developer will use commercially reasonable efforts to reduce the susceptibility of the Licensed Game to hacking, address vulnerabilities identified by Tencent, and provide fixes and corrections for errors to ensure high availability and reliability, short intervals of fault time, and quick service recover for the Licensed Game, as well as optimal recovery capabilities in case of operational failure, whether or not due to bugs, hacking, or other reasons. If Tencent discovers any error in any portion of the Licensed Game, Tencent may notify Developer of that error and Developer will produce and deliver to Tencent an Upgrade to the Licensed Game to correct that error in accordance with this Section 4.4.
4.5 Suspension. Tencent may suspend or remove the Licensed Game from the Tencent Distribution Platform at any time, with prior written notice to Developer explaining Tencent's suspension or removal decision or immediately without notice or explanation under urgent circumstances, if Tencent determines that: (a) Developer breaches this Agreement; (b) the Licensed Game materially deviates from the version that passed Tencent's certification or materially fails to perform as originally intended; (c) the Licensed Game harms or is likely to harm the Tencent Distribution Platform, End Users, or other third parties; or (d) the Licensed Game damages or is likely to damage Tencent's reputation, involves Tencent in public controversy, or subjects Tencent to liability.
4.6 Customer Support. Developer is solely responsible for providing all technical support regarding the Licensed Game and such support will be equivalent to the highest level of technical support provided by or on behalf of Developer to any other licensee of the Licensed Game. Tencent is responsible for providing customer support for issues caused by the Tencent Distribution Platform and for payment and refund issues.
4.7 Ratings System. Tencent may provide opportunities for End Users to comment on or rate the Licensed Game ("Ratings System"). Developer will not take any actions to manipulate or which may undermine the Ratings System, including, but not limited to, submitting false reviews with respect to the Licensed Game or leaving untruthful, negative or otherwise malicious comments with respect to another developer's product. Tencent does not monitor or censor comments that are provided by End Users and disclaims any and all liability relating thereto. Notwithstanding the foregoing, Tencent reserves the right, in its sole discretion, to remove any ratings that it deems to be inconsistent with the activities that are permitted under this Agreement.
5. Privacy and End User Data
5.1 Data Collection. Developer: (i) agrees to protect the privacy and legal rights of the End Users; (ii) will not collect data or information from End Users through the Licensed Game without prior consent, and then only to provide a service or function that is directly relevant to the use of the Licensed Game; (iii) must provide clear and complete information to End Users regarding Developer's collection, use and disclosure of data or information; and (iv) must take appropriate measures to protect such data or information from unauthorized use, disclosure or access by third parties. If an End User ceases to consent or affirmatively revokes consent for the collection, use or disclosure of his or her user data, Developer must promptly cease all such collection and use.
5.2 Privacy Policy. Without limiting the restrictions in Section 5.1, if Developer collects any information pertaining to any End User, Developer agrees that all such information will be collected, processed, transmitted, maintained and used in compliance with all applicable laws and a privacy policy that Developer will post and make available to End Users via the Licensed Game that governs the Licensed Game (the "Privacy Policy"). Developer agrees to comply with the terms and conditions of the Privacy Policy and employ reasonable measures to ensure unauthorized third parties are unable to access such data.
6. Developer Platform
6.1 Developer Platform License. Subject to Developer's compliance with the terms and conditions of this Agreement and the Developer Agreement, commencing on the Commercial Launch, Tencent will provide Developer access to the Developer Platform to receive information related to the distribution of the Licensed Game. Tencent may, in its sole discretion, offer, or cease to offer, any access or functionality in or to the Developer Platform, or take any other actions to restrict access to or the availability of the Developer Platform.
6.2 Sales Data. Tencent will provide Developer with Sales Data for the Licensed Game through the Developer Platform. Notwithstanding the foregoing, the availability of certain Sales Data for the Licensed Game may be conditioned upon Developer performing any tasks necessary, as reasonably directed by Tencent, to ensure the functionality for collecting the Sales Data for that Licensed Game is compatible with Tencent Distribution Platform. The Sales Data is the only conclusive source for the calculation of Developer Revenue Share
7. MARKETING
7.1 Marketing. Tencent will have the sole right to determine the marketing, advertising, and promotion of the Licensed Game in the Territory. Upon Tencent's request, Developer will create and provide marketing materials that comply with Tencent policies.
7.2 Press Release. Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction (including, the Securities and Futures Commission of Hong Kong or any national securities exchange or similar agency), and without limiting Section 7.1, neither party will make any public announcement or press release about the other party without the prior consent of the other party. Any party required by law to make a public announcement regarding any matter related to the cooperation contemplated by this Agreement will solicit from and consider in good faith the other party's feedback on the content of that public announcement. Notwithstanding the foregoing, Tencent and Developer may reference in public statements the fact that the Licensed Game is or will be available on the Tencent Distribution Platform.
8. PAYMENT
8.1 Price. Subject to the requirements and restrictions herein, Developer may set the prices for the Licensed Game, DLCs, and all other related items. Developer will make the Licensed Game, DLCs and related items available within the Licensed Game at pricing that is the same or lower than the price to which the same or comparable content is made available within the same corresponding jurisdictions within the Territory. Tencent may provide proposals for pricing (including but not limited to promotional pricing), which Developer will consider in good-faith. Tencent may object to a price for the Licensed Game, DLC, and related items if Tencent reasonably believes that price is higher than the price of the same or comparable content that is made available within the same corresponding jurisdictions within the Territory, and Tencent may adjust the prices to achieve such alignment on pricing. Tencent may otherwise adjust the prices for the Licensed Game and DLC, and all related items with Developer's prior approval. Before Developer implements any price adjustment for the Licensed Game, DLC, Game Virtual Currency, or any other related items on any other game distribution platforms in the Territory, Developer will provide Tencent with a notice and brief description of that price adjustment.
8.2 Revenue Share. Tencent will pay to Developer the Developer Revenue Share on a monthly basis. Tencent shall be entitled to retain the remaining portion of the Gross Revenue as a fee for distributing the Licensed Game.
8.3 Payments. Developer may view Sales Data through the Developer Platform to confirm the Developer Revenue Share payment that is due to Developer. All payments under this Agreement will be paid by Tencent via electronic fund transfer to the account provided by Developer during the registration process within thirty (30) Business Days after the end of the month in which the Gross Revenue was collected. In the event that any amount of Revenue Share is less than One Hundred US dollars (USD 100.00), Tencent may delay such payment until a subsequent payment cycle under which the cumulative amounts Tencent owes to Developer exceed One Hundred US dollars (USD 100.00). All payments, net of all applicable taxes under Section 8.5 if any, will be made in U.S. dollars. If the Sales Data Report is provided currency other than U.S. dollars, such currency will be converted to U.S. dollars based on the exchange rate as published by the Bank of China (Hong Kong) Limited at the close of the business on the last Business Day of the month in which the Developer Revenue Share payment obligation accrued.
8.4 Refunds. Developer acknowledges and agrees that it is required to issue refunds to end-users consistent with the Game Refund Policy and the Game Removal Policy.
8.5 Taxes. All payments by Tencent to Developer under this Agreement include all applicable taxes, and Developer will be responsible for the payment of all taxes owed in connection with this Agreement. Tencent reserves the right to deduct or withhold any applicable taxes payable by Developer from amounts due from Tencent (including value added taxes, income taxes and surcharges), and those amounts due, as reduced by Tencent's deductions or withholdings, will constitute full payment to Developer. Furthermore, in the event that a local tax authority determines that taxes are payable in relation to past payments made by Tencent to Developer, Tencent reserves the right to deduct any such applicable taxes from amounts due from Tencent in the future.
9. OWNERSHIP
Developer retains all right, title, and interest in and to the Licensed Game, including all Upgrades and Localized Versions, DLC, and the Licensed Marks. Tencent retains all right, title, and interest in and to the Tencent Distribution Platform, the Tencent Marks, Tencent Distribution Platform Data, Sales Data, Game Distribution Data, and Personal Data. Subject to Developer's ownership interest in the Licensed Game, Upgrades and Localized Versions, DLC, and the Developer Marks, Tencent retains all right, title, and interest in and to all advertising, marketing, promotional, and other materials that Tencent creates under this Agreement. All rights not expressly granted under this Agreement are reserved by each party.
10. RIGHTS IN BANKRUPTCY
If a bankruptcy proceeding is commenced by or against Developer, Tencent: (a) will be entitled to a complete duplicate of (or complete access to, as appropriate) any licensed intellectual property and all embodiments of the intellectual property and Developer will promptly deliver to Tencent the items upon Tencent's request; and (b) as a licensee of the rights under this Agreement, will retain and may fully exercise all of its rights and elections under applicable bankruptcy laws.
11. CONFIDENTIAL INFORMATION
11.1"Confidential Information" means any: 1) proprietary information of a party to this Agreement disclosed by one party to the other party that is in written, graphic, machine readable or other tangible form and is marked "Confidential" or "Proprietary" or in some other manner to indicate its confidential nature; 2) all other non-public marketing or technical information, even if not marked as confidential; and 3) all information collected or developed by Tencent regarding its End Users or customers. Confidential Information also include oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure. Tencent Distribution Platform Data, Sales Data, Game Distribution Data and Personal Data are Tencent's Confidential Information.
11.2 Exceptions. Confidential Information will not include any information that: 4) was publicly known and made generally available prior to the time of disclosure by the disclosing party; 5)becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; 6)is already in the possession of the receiving party at the time of disclosure; 7)is obtained by the receiving party from a third party without a breach of that third party's obligations of confidentiality; or 8)is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
11.3 Non-Use and Non-Disclosure. Each party will: 9) reat as confidential all Confidential Information of the other party;10)not disclose that Confidential Information to any third party, except on a "need to know" basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section provided that the disclosing party has obtained the written consent to that disclosure from the other party; and 11) 11.3not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party's Confidential Information if required by law so long as the other party is given prompt written notice of that requirement prior to disclosure and assistance in obtaining an order protecting that information from public disclosure. Developer will not disclose any terms of this Agreement to any third party without the consent of Tencent, except as required by applicable law.
12. TERM AND TERMINATION
12.1 Term. This Agreement commences upon the Effective Date and continues for a period of two (2) years from the Commercial Launch (the "Initial Term"), unless earlier terminated in accordance with the provisions of this Agreement. The Agreement renews automatically at the end of the Initial Term for successive 12-month periods (each period, a "Renewal Term") so long as the Licensed Game remains available on the Tencent Distribution Platform. The Initial Term and all Renewal Terms, collectively, are referred to herein as the "Term."
12.2 Termination for Force Majeure. At the option of either party if an event of Force Majeure occurs and continues for a period of 90 calendar days after a written notice thereof is provided by the terminating party.
12.3 Termination without Cause. During any Renewal Term, either party may terminate this Agreement without any cause by providing the other party with 30 days' prior written notice.
12.4 Termination of the Tencent Distribution Platform. Tencent may terminate this Agreement immediately if it decides, in its sole discretion, to cease operation of the applicable Tencent Distribution Platform.
12.5 Termination for Cause. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 12.5 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
12.6 Insolvency. A party may immediately terminate this Agreement upon written notice to the other party if the other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party's consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
12.7 Game Removal. Notwithstanding any expiration or termination of this Agreement, Developer will comply with the obligations set forth in the Game Removal Policy, which is hereby incorporated by reference in to this Agreement, and the terms of this Agreement will continue to apply during any period for which the Licensed Game is made available pursuant to the Game Removal Policy.
12.8 Effects of Termination or Expiration. Upon the expiration or termination of this Agreement:
(a)Unless Tencent terminates this Agreement for Developer's uncured material breach of this Agreement, Tencent will pay to Developer all Developer Revenue Share that it owes to Developer as of the date that is the later of termination or expiration under this Agreement and Termination (as defined in the Game Removal Policy) of the Licensed Game.
(b)Tencent is not obligated to return copies of any materials provided by Developer.
12.9 Survival of Certain Obligations. Without limiting Section 12.7, the following provisions will survive the termination or expiration of this Agreement: Sections 5.2, 9, 11, 12.7, 12.8, 12.9, 14, 15, and 16, all Developer representations and warranties in this Agreement, and any other provisions that, by their nature, are intended to survive. All rights to the Licensed Game, DLC, or Game Virtual Currency acquired by End Users will survive termination or expiration of this Agreement and dispositioned in accordance with the Game Removal Policy, as well as Tencent's rights to the extent necessary or helpful to make such materials available to End Users in accordance with the Game Removal Policy. All liabilities that accrued prior to termination will also survive termination or expiration of this Agreement.
13. REPRESENTATIONS AND WARRANTIES
13.1 Authorization; Compliance with Laws. Each party represents and warrants to the other party that:12) it is duly organized, validly existing, and in good standing in the jurisdiction stated in the preamble to this Agreement;13) the execution and delivery of this Agreement by it has been duly and validly authorized; (c) this Agreement constitutes a valid, binding, and enforceable obligation of it; and 14) it will comply with all applicable laws, rules, and regulations of any applicable governmental body in performing under this Agreement.
13.2 No Conflict. Developer represents and warrants that Developer will not grant any rights under any future agreement, nor will it permit or suffer any lien, obligation, or encumbrance that will conflict with the full enjoyment by Tencent of its rights under this Agreement.
13.3 Performance and Licensed Game. Developer represents and warrants that: 15)the media on which Licensed Game, DLC, or Game Virtual Currency are delivered will be free of defects in materials and workmanship;16)the materials and information provided as part of the Licensed Game, DLC, and Game Virtual Currency are accurate in all material respects; and 17)Tencent and End Users will be able to fully use the Licensed Game and DLC without the use of any tools or other computer programs. If Developer breaches a representation or warranty in this Section 13.3, Developer will promptly repair or replace a defective item or deliver a missing item.18)Tencent and End Users will be able to fully use the Licensed Game and DLC without the use of any tools or other computer programs. If Developer breaches a representation or warranty in this Section 13.3, Developer will promptly repair or replace a defective item or deliver a missing item.
13.4 Harmful Content. Developer represents and warrants that any materials delivered as part of the Licensed Game, DLC, and Game Virtual Currency, as delivered to Tencent, do not contain any computer code: 18)designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of the computer program (e.g., "viruses" and "worms"); 19)hat could disable the computer program or any computer system or mobile device or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies, or the advancement to a particular date or other numeral (e.g., "time bombs," "time locks," and "drop dead" devices); 20)that could permit Developer or any third party to access the computer program or any computer system or mobile device without Tencent's authorization (e.g., "traps," "access codes," or "trap door" devices); or 21)13.4that could permit Developer or any third party to track, monitor, or otherwise report the operation and use of the computer program by Tencent or track, monitor, report, or obtain any data from any End User.
13.5 No Hidden Content. Developer represents and warrants that the Licensed Game will not contain any hidden or undisclosed content, such as cut scenes, "Easter eggs," or other unauthorized or hidden game play elements, regardless of whether or not that content is programmed to be accessible or inaccessible to an End User or third party.
13.6 Right to Make Full Grant. Developer represents and warrants that it has and will have all requisite rights to fully perform its obligations under this Agreement and to grant to Tencent all rights granted under this Agreement free and clear of all agreements, liens, adverse claims, encumbrances, and interests of any person or entity, including Developer's employees, contractors, and its contractors' employees and agents.
13.7 Third Party Materials. Developer represents and warrants that it will comply with all open source licenses and that the Licensed Game will not contain any software code that is subject to a license requiring, as a condition of use, modification, or distribution of the software code, that the software code or other software code combined or distributed with it be: 22)licensed for the purpose of making derivative works; or 23)redistributable at no charge.
13.8 Services. Developer represents and warrants that the services it performs under this Agreement will be performed in a timely, competent, professional, and workmanlike manner by qualified personnel.
13.9 Legal Proceedings. Developer represents and warrants that: 25) Developer is not involved in any legal proceeding (litigation, arbitration, mediation, or otherwise) relating to the Licensed Game or any Licensed Mark; 26) Developer has not received notice of a claim relating to the Licensed Game or any Licensed Mark; and 27) Developer is not aware of any facts or circumstances that might lead to a legal proceeding relating to the Licensed Game or any Licensed Mark.
13.10 Noninfringement. Developer represents and warrants that: 28) neither the Licensed Game nor any Licensed Mark infringes, misappropriates, or otherwise violates the intellectual property or any other rights of a third party; 29) Tencent's exercise of its rights hereunder with respect to the Licensed Game or any related item will not infringe, misappropriate, or otherwise violate the intellectual property or any other rights of a third party; and 30) Developer does not know of a third party that is infringing Developer's rights to the Licensed Game or any Licensed Mark.
14. INDEMNIFICATION
14.1 Indemnification. Developer will indemnify, defend, and hold harmless Tencent and its Affiliates and their directors, officers, employees, and End-Users from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys' fees and other legal expenses, arising directly or indirectly from or in connection with: 31) any breach by Developer or Developer's employees or agents of any of the warranties or representations contained in this Agreement or any allegation which, if true, would constitute such breach; 32) any failure of Developer to perform services under this Agreement in accordance with all applicable laws, rules, and regulations; 33) any violation or claimed violation of a third party's rights, including intellectual property rights, resulting in whole or in part from Tencent's marketing, promotion, or distribution of the Licensed Game, Tencent's use of any Licensed Mark, or any exercise by Tencent of its license rights granted under this Agreement provided always that such violation is directly attributable to unaltered elements of the Licensed Game or Licensed Mark as delivered to Tencent under this Agreement; or 34) Developer's negligence or willful misconduct.
14.2 Procedure. Tencent will promptly notify Developer of any claim that is subject to this Section 14, and will, at Tencent's option, permit Developer to assume and control the defense of that claim. Tencent will have the right to employ separate counsel and participate in the defense of claims. Developer will have the sole authority to defend, compromise, settle, or otherwise dispose of claim, for which Tencent requests indemnification, but Developer will not agree to any disposition or settlement of a claim that admits liability or imposes duties of performance or payment on Tencent without Tencent's prior written consent. If the parties agree to settle a claim, Developer will not publicize the settlement without first obtaining Tencent's written permission.
14.3 Intellectual Property Infringement. If any claim concerning an intellectual property right of a third party could prevent or limit Tencent's exercise of its rights to any portion of the Licensed Game, Developer will, in addition to its obligations under Section 14.1, take one of the following actions at its sole expense:
(a) procure for Tencent the right to continue exercise of its rights to the infringing portion of the Licensed Game or Licensed Mark;
(b) modify or amend the affected Licensed Game or Licensed Mark so that it no longer infringes the third party's rights; or
(c) replace the infringing portion of the Licensed Game or Licensed Mark with an item that has substantially the same or better capabilities that does not infringe the third party's rights.
15. LIMITATION OF LIABILITY
15.1 Disclaimer of Warranties. ALL PERFORMANCE BY TENCENT AND ITS AFFILIATES AND ANY MATERIALS PROVIDED BY TENCENT ARE PROVIDED "AS IS." DEVELOPER ACKNOWLEDGES AND AGREES THAT TENCENT CANNOT ENSURE THAT ANY MATERIAL SUBMITTED BY OR ON BEHALF OF DEVELOPER WILL BE PROTECTED FROM THEFT OR MISUSE, AND TENCENT WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE OR OF ANY END USER TO COMPLY WITH THE EULA.
15.2 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TENCENT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO DEVELOPER OR ANY THIRD-PARTY FOR ANY LOSS OF REVENUE, LOST PROFITS, OR LOSS OF BUSINESS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER.
15.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL TENCENT'S OR ANY OF ITS AFFILIATES' TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY TENCENT TO DEVELOPER UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THAT CLAIM.
15.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THESE PROVISIONS FAIL THEIR ESSENTIAL PURPOSE.
16. MISCELLANEOUS
16.1 Subcontractors. Tencent may exercise its rights under this Agreement via its Affiliates and subcontractors. Tencent will be responsible for the compliance of those Affiliates and subcontractors with the terms of this Agreement.
16.2 Independent Contractor. The parties are independent contractors in the performance of this Agreement. Without limiting the generality of the previous sentence, neither party is authorized to bind the other party to any liability or obligation or to represent that it has any authority to do so.
16.3 Force Majeure. No party to this Agreement will be liable to the other party for any failure or delay in fulfilling an obligation under this Agreement, if that failure or delay is attributable to circumstances beyond its control, including any fire, power failure, labor dispute, war, civil dispute, or government action (including any new law or regulation) or inaction ("Force Majeure"). The parties agree that the deadline for fulfilling the obligation in question, and the Initial Term or Renewal Term, as applicable, will be extended for a period of time equal to that of the continuance of the Force Majeure.
16.4 Governing Law and Resolution of Disputes. This Agreement will be governed and construed in accordance with the Laws of Hong Kong, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising in any way out of or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination of this Agreement, or any dispute regarding pre-contractual or non-contractual rights or obligations arising out of or relating to it ("Dispute") will be referred to and finally resolved by binding arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC") under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with those Rules ("Rules"), which Rules are deemed to be incorporated by reference into this clause and as may be amended by the rest of this clause. The seat of arbitration will be Hong Kong and the agreement to arbitrate contained in this clause will be governed by the laws of Hong Kong. The arbitration tribunal ("Tribunal") will consist of three arbitrators to be appointed in accordance with the Rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
16.5 Notices. All notices under the terms of this Agreement will be given in writing and sent by overnight courier, registered mail, or will be delivered by hand to the addresses set forth below for Tencent, and to the addresses provided by Developer during the registration process. All notices will be deemed to have been received when they are hand delivered, or five Business Days after their mailing.
If to Tencent: developer@wegame.com
With copies to:
10F, Tower A, No. 397 Tianlin Road, Xuhui District, Shanghai, 200233, China
Attn: TTG, Compliance and Transactions Department
Email: TTGlegalnotice@tencent.com
16.6 Assignment. Developer may not assign this Agreement or its rights hereunder without Tencent's prior written consent, except that Developer may assign this Agreement to an Affiliate in the regular course of business without Tencent's prior written consent. Such assignment by Developer will not relieve Developer of its obligations and liability under this Agreement unless Tencent expressly states otherwise in its written consent. Tencent may voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement without Developer's consent. Any purported assignment or delegation in violation of this Section 16.6 will be null and void and will constitute a material breach by the assigning party of this Agreement. Subject to this Section 16.6, this Agreement will bind and inure to the benefit of each party's respective permitted successors and permitted assigns.
16.7 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing provided in accordance with Section 16.5 (Notices) to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party's right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
16.8 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law, and the Tribunal will preserve, as far as possible, the original intention of the parties with respect to the severed term, condition, or provision.
16.9 Third Party Rights. No one other than a party to this agreement, their successors and permitted assignees, will have any right to enforce any of its terms.
16.10 Remedies Cumulative. No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
16.11 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
16.12 Integration. This Agreement and the Game Removal Policy contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to that subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions. This Agreement may not be amended, except by a writing signed by both parties.
16.13 Written Acknowledgement. Developer agrees to sign any written acknowledgement of these terms that is presented by Tencent. The terms of this Agreement supersede any inconsistencies between this Agreement and any such written acknowledgement.