Contract Provisions for the Licensing of Online Games via Devlounge
Introduction and Basic Functions
Bigpoint GmbH, Drehbahn 47-48, 20354 Hamburg, Germany ("Bigpoint") offers various Internet portals on which online games are presented ("Bigpoint portals").
Bigpoint offers developers of online games the opportunity to submit their game(s) for application over the Bigpoint portals and to grant Bigpoint a license for the integration of the game(s) in the Bigpoint portals. In return, Bigpoint shall share the revenues generated by such game(s) in those cases where the game(s) offers pay elements.
If a developer ("Partner") wishes to grant Bigpoint a license for the application for one or more of their games ("Game") on the Bigpoint portal, the following rules shall apply ("Contract"). Contractual conditions of the Partner shall only apply if expressly agreed upon by Bigpoint in writing.
The above-mentioned contractual relationship between the Partner and Bigpoint shall hereinafter also be referred to as "License Agreement".
The Partner must submit an application to open an account in order to apply for a license. This requires the partner to fill out a form that involves the input of various types of information (f.e. Beta-URL, Login Data, Game synopsis). By completing and submitting the form, the person who fills it out declares (i) that they are of legal age without constraint, and (ii) if the Partner is a legal entity, that they are entitled to represent this company.
The License Agreement between the Partner and Bigpoint goes into effect with our acceptance of the application to open a partnership account. The confirmation sent by Bigpoint regarding receipt of the request for setting up a partner account is not to be considered acceptance of the application. The acceptance can, however, be combined with confirmation of receipt.
Following the acceptance of the application to create a partner account, the Partner receives access to a specific area of the Bigpoint portal ("Members-only Area"). In this limited access "Members-only Area", the Partner can select different information and options for each Game. The right to a License Agreement is not guaranteed, the Partner and the respective game must fulfill certain conditions which may be viewed at the following link in all cases: http://wiki.devlounge.bigpoint.com/doku.php?id=en:faq
§ 1 Subject of the Agreement
(1) The Partner grants Bigpoint all necessary non-exclusive licenses for the integration of the Game on the Bigpoint portal. This includes in particular the right to use the name of the Game, and to use the Game images, artwork and descriptive texts made available by the Partner, as well as screenshots and scenes from the Game, including the music from the Game (collectively the "Materials"). In particular, Bigpoint has the right to use the Materials on the Bigpoint portal, to create banners, advertising themes and TV commercials from the Materials and to adapt and edit the Materials and use them to advertise the Game. The application of the Materials can also take place outside the Bigpoint portal, for example through integration of promotional materials on partner portals or within other games, etc. During the adaptation and editing of the Materials, Bigpoint shall not change the essence of the Game nor its character, but may if necessary make slight modifications to ease the integration of the Game on the Bigpoint portal and facilitate advertising.
(2) Bigpoint agrees to use these rights solely for the purpose of integrating the Game on the Bigpoint portals and for the purpose of promoting the Game. Bigpoint is however not required to promote the Game.
(3) Bigpoint integrates the Game into the Bigpoint portals. Bigpoint may integrate or place the game as they see fit, without constraint.
(4) If the Game offers pay elements, the Partner shall receive a share of the profits as defined in Sec. 7.
(5) "Contractual area" within the subject of this agreement means the area in which Bigpoint, according to the terms of this contract, may exercise the rights granted herein. If there is no written agreement to the contrary, the contractual area shall be considered worldwide.
§ 2 Transfer, Sub-Licenses, Disposal
(1) Bigpoint is authorized to transfer the granted license, as outlined in Sec. 1, to a third party who then enters into this agreement if there are no extenuating circumstances in which such a transfer of license to the third party in question would cause the Partner undue or unreasonable hardship.
(2) Bigpoint is authorized to grant sub-licenses to third parties for the purpose of integrating the Game onto portals with which Bigpoint has a cooperative agreement. Bigpoint is also authorized to grant sub-licenses for the purpose of advertising the portal and the Game.
§ 3 Documentation, Absence of Advertising, Protection of Minors, Translation
(1) The Partner shall provide Bigpoint with comprehensive technical, descriptive and conceptual documentation for the Game in electronic form in English, and, if requested by Bigpoint, in German. They shall also inform Bigpoint of errors, bugs, and planned updates in a timely manner.
(2) The entire Game – including associated discussion forums and any other associated components of the Game – must be completely free of advertising in any form. This includes but is not limited to the following means of advertising: banner advertising and in-game advertising, as well as links, in-game messages and e-mails, if these are of a commercial nature, as well as every other form of advertising. Advertising is defined as all means of communication appropriate for the promotion of the product or service in question. If a service or remuneration is offered in return for the subject of the means of communication, it shall be considered advertising.
(3) The Partner guarantees the functional playability of the Game and, in the case of problems within the Game, shall correct these promptly. It is in the interest of the Partner to render the game fully functional again within one working day – the latest acceptable return to functionality is however at the end of the second working day. The Partner ensures that the game be available and playable 99.8% of every month.
(4) The Partner shall, if it should become legally necessary, arrange for and cover the costs of an official examination of the Game by the appropriate agency, office or board within the scope of youth protection laws. The result of said examination by the responsible agency for the respective Game shall not exceed a minimum age requirement of 14 years. The Partner agrees that this requirement shall be taken into consideration during the creation, development and release of the Game.
(5) The Partner shall also be required to arrange an examination of the Game as described in Par. 4 above if Bigpoint has a justifiable interest in such an examination. A justifiable interest exists particularly in the following situations:
- Bigpoint is a member of a group or association which recommends to or requires such an examination from its members.
- The current political or societal climate makes such an examination advisable.
- No consensus of opinion can be reached between Bigpoint and the Partner regarding whether or not the Game is unsuitable for players under 14 years of age.
(6) If the Partner selected online the option to have the Game translated into other languages, Bigpoint shall arrange for the translation, but shall not be liable for the quality of the translation provided. Bigpoint is liable solely for the selection of a dependable and appropriate translator.
(7) The Partner shall integrate the translation into the Game without undue delay. Bigpoint is the owner of all translation results. The Partner is granted a right of use for the translation results for the duration of the partnership with Bigpoint.
§ 4 User Data
(1) For the purposes of cooperation between the parties as defined by the terms of this contract, the registration process for the Game shall be so designed that, upon registration, users enter into a contract with Bigpoint. This regardless of whether a player registered on the Bigpoint portal or directly in the Game via a link on the Bigpoint portal. Bigpoint shall collect any fees owed by the players in its own name and using its own account. Bigpoint is authorized to use the services of third parties for this process.
(2) The Terms & Conditions of Bigpoint apply to the behavior of all players. Should any aspect of these Terms & Conditions require amendment or supplementation, the Partner and Bigpoint shall agree upon these modifications and integrate them into the Game.
(3) In accordance with Par. 1 and 2, the Partner shall observe Bigpoint’s requirements with regard to the registration and login process. The Partner shall also integrate the Bigpoint SSO (Single Sign-On) into the registration process.
(4) Bigpoint has exclusive rights to the user data provided by the players within the scope of this agreement. For the duration of this contract and to the extent that these are necessary to the smooth functioning of the Game, the Partner shall be granted the rights to view the usernames of the players and their associated user IDs, and to use this information in accordance with Bigpoint’s Data Privacy and support policies.
(5) After termination of the partnership, Bigpoint is entitled to continue using the user data without constraint. The Partner is obligated to grant users access to the Game with their current login data for an appropriate period of time after partnership termination. As a rule, six months after termination of the contract with Bigpoint is considered an appropriate period of time. Suspension of individual players for important reasons – especially infringements of contract regulations – can still be undertaken by the Partner. Further rights of the Partner with regard to user data end with the cancellation of the partnership with Bigpoint.
§ 5 Support of Bigpoint for the Operation of the Game
(1) The Partner shall support Bigpoint by carrying out all technical adjustments of any kind in the Game so that the Game’s functionality on the system provided by Bigpoint is guaranteed.
(2) The Partner shall integrate all Bigpoint APIs, tracking codes and scripts into the Game. The Partner agrees that page impressions and visitors generated by the Game may be used for statistical purposes by Bigpoint (including market research and publication measurements), e.g. for IVW, AGOF, Comscore, Nielsen, etc.
(3) The Partner shall apply all changes necessary for the integration of the Game (Cobrand, Single Sign-On, Logo, Header/Footer, etc.).
(4) The Partner shall offer the Game to Bigpoint players on the domain BIGPOINT.COM exclusively. The Partner ensures this through the use of a CNAME entry. The Partner agrees to undertake all the necessary steps to prepare the CNAME, including the setting up of a Vhost.
(5) The Partner shall undertake all actions deemed necessary by Bigpoint to improve optimization for search engines or search engine advertising.
(6) Bigpoint shall fulfill its obligations as set forth in this licensing agreement – especially with regard to the integration of the Game in the Bigpoint portal – only after the Partner has completed the steps outlined in Par. 1 through 4. The actions outlined in Par. 3 through 5 should normally be completed by the Partner within 10 business days of receipt of the request.
(7) If the Game offers pay elements, the Partner shall integrate the Bigpoint payment functions and payment systems into the game, thus making them available to the Bigpoint users. The Partner shall use the Bigpoint payment functions ONLY and shall not integrate other payment systems without the express consent of Bigpoint.
(8) The Partner shall fulfill their responsibilities in accordance with Par. 1 through 7 at the beginning of the cooperation in order to successfully integrate the Game into the Bigpoint portal. Bigpoint reserves the right to require specific and reasonable actions from the Partner in this regard for the entire duration of the contract period.
§ 6 Server Operation, Further Developments
(1) The Partner is responsible for the operation and the technical maintenance of the game server. All relevant costs shall be covered exclusively by the Partner. Bigpoint is authorized to remove the Game from the portal during periods of inaccessibility whenever these periods occur.
(2) If the Game is completely free and the Partner would like to earn remuneration in accordance with Section 7 of these Terms & Conditions, the Partner must incorporate pay elements into the Game or expand upon them.
(3) The Partner guarantees that the version of their Game provided to Bigpoint shall always be the latest version.
§ 7 Commission
(1) If the Game offers pay elements, Bigpoint shall pay the Partner a commission. The commission shall be calculated based on the net profit generated by pay elements in accordance with the provisions specified here in Sec. 7. Commission payment shall take place on a monthly basis, under the condition that the commission due to the Partner has reached a minimum amount of €50 (EUR) ("minimum amount"). If the minimum amount has not been reached during a particular month, the commission of the Partner will be carried over to the following month. In the case of a cancellation, the commission will be paid out in full.
(2) Bigpoint shall prepare a monthly statement by the 21st of a given month for the commissions due the previous month. The statement shall be considered as approved if it has not been objected to in writing within 14 days of receipt. If the minimum amount has been reached, the commission is due and payable within 14 days of the creation of the monthly statement. Bigpoint shall provide notice regarding the deadline for objections and the legal consequences of not respecting this 14-day deadline in each statement.
(3) The amount of the commission is calculated according to the net payments made by players for pay elements (subscription fees, payment for premium services, payment for game-related advantages or for items in the Game). The Partner is entitled to a percentage of the net profited generated by player payment within the game. This percentage is dependent on the options selected by the Partner and can be viewed. If the Partner should change any of the options which have an effect on the commissions to be paid to their own advantage during the contract period, these changes shall become effective in the following month. All other changes shall become effective at the time of acceptance by Bigpoint.
(4) Net sales are composed of gross income less applicable sales tax (VAT), actual and verifiable government taxes for which no exemption exists (e.g., VAT, excise or sales tax, governmental withholdings, etc.) incurred in connection with the exploitation of the Game, if any, cancellations, payment costs, payments to portal and media partners as well as those direct marketing costs which were verifiably used specifically for marketing activities for the Game from the gross income generated by players in game. All other applicable taxes must also be deducted from the gross income. Payments from players only count toward the commission once they have been permanently credited to Bigpoint. Payment reversals and other refunds shall also be subtracted unless they are attributable to Bigpoint. Costs which are charged to Bigpoint due to misuse by third parties, particularly credit card misuse or insufficient funds in an account, shall also be subtracted.
(5) All the amounts which are owed to and collected by Bigpoint in accordance with the customer management program are relevant.
(6) Bigpoint must pay the VAT (if applicable) on the commissions in addition to the commission itself.
(7) Bigpoint shall continue to receive a commission in accordance with Sec. 7 (in particular Par.4) even after termination of this agreement for all users who registered for the Game during the contractual period agreed upon between the two parties ("Lifetime commission").
§ 8 Protection against Infringement of Rights by Third Parties
(1) The parties shall inform each other of all violations of the rights granted in these Terms & Conditions – in particular Sec. 1 – without undue delay. Bigpoint shall support the Partner in a suitable manner with regard to the protection of these rights if and when appropriate.
(2) The right to judicial and extra-judicial action against infringers is generally reserved to the Partner. If the Partner is not prepared to or interested in initiating proceedings against an infringer, Bigpoint is entitled but not obliged to take legal action against the infringer in its own name, either in court or out of court, subject to approval by the Partner. The Partner may withhold consent only for good reason. If necessary, the Partner shall provide the necessary authorizations or other declarations.
(3) Bigpoint is entitled to become part of a court action initiated by the Partner for the purpose of receiving compensation for their own damage claims. The costs for the incurred during the resolution of infringement disputes are borne by the party making the said claim(s). The parties commit themselves to agree to a different cost sharing arrangement in the event that the dispute infringement has more than a negligible effect on the interests of the other party.
§ 9 Attacks on Existing Rights or Against the Use of Existing Rights
The Partner shall defend the existence of the licensed rights outlined in Sec. 1 against attack and support and release Bigpoint as of the first request (this includes reasonable costs for legal defense) if a third party, because of the alleged existence of older rights, acts against Bipgoint’s rights.
§ 10 Actions against Patents
The Partner shall proceed in an appropriate manner to avoid the registration of patents, trademarks etc. which have already been registered and which would endanger the success of the license granted by these Terms & Conditions – in particular Sec. 1.
§ 11 Warranties, Liability and Defect Claims
(1) The parties agree that the design and operation of Bigpoint portals and the use of the rights granted by the license agreement are the sole responsibility of Bigpoint, and that the Partner can have no claim against Bigpoint in this regard. Bigpoint is especially not liable for the availability of the Bigpoint portal servers.
(2) The Partner certifies that they are authorized to grant the rights which are being granted in this licensing agreement. The Partner agrees to maintain the above rights for the duration of the cooperation with Bigpoint.
(3) The Partner warrants that all information provided in connection with the registration and uploading of the Game and the materials and all other information provided in relation to the cooperation with Bigpoint is accurate.
(4) The Partner guarantees that they are providing the Game to Bigpoint as part of their business activities and that no copyright, patent, trademark, unfair competition, moral rights or other rights of third parties are being violated through the use of the Game and of the materials in accordance with the license, that open source software is only used under the proper license conditions and that Bigpoint cannot be forced under these contract provisions and through contractual use of the Game and the materials to make payments to the artists' social fund or collecting society. The Partner also guarantees Bigpoint that the Game has no hidden content, in particular content that violates laws or the rights of third parties, which represent a threat to youth or which may negatively affect the reputation of Bigpoint.
(5) Furthermore, the Partner guarantees the correctness of the guarantees which have been made, regardless of any potential error on behalf of the Partner.
(6) The Partner frees Bigpoint from any liability for all third-party claims which may come about in connection with a breach of the aforementioned guarantees. This also includes the assumption of reasonable attorney's fees.
(7) The Partner is unlimitedly liable for ensuring that the Game and the materials do not infringe on the laws of the contract territory or on national or international law or the rights of third parties.
(8) Regardless of any possible damage claim, the Partner is obliged to pay for each case in which infringement of third-party rights or of the aforementioned guarantees is proven. In each such case, the partner must pay a penalty of €10,000 and renounce to all claims to the right to continue the offence. The assertion of further damage claims as well as all other claims remain unaffected. The amount of the penalty will be calculated according to all established damage claims.
(9) Bigpoint is liable only
- in case of intent or gross negligence,
- for willful or negligent violation of life, body or health
- due to the assumption of a guarantee of quality,
- for willful or negligent violation of essential contractual obligations,
- within the scope of mandatory liability under the Product Liability Act or
- due to other compelling acts.
Major contractual obligations, also known as cardinal obligations as they are understood in established case law, are defined as responsibilities which make it possible to fulfill the contract, with which the contractual partner of the user is familiar and which the contractual partner may reasonably expect to be fulfilled. Remuneration or other forms of repayment of damages incurred through the violation of essential contractual obligations is limited to contractually typical, foreseeable damages, unless willful misconduct, gross negligence or injury to life, limb or health exists, or quality assurance is owed. The foreseeable damage is limited to the revenue earned in the 12 months leading up to the damage in accordance with to Sec. 7.
§ 12 Confidentiality
(1) The parties are obliged to keep information provided by the other party confidential, as long as disclosure is not necessary to the fulfillment of obligations outlined in the License Agreement. This obligation also applies to the agreed-upon contractual terms of the contract between the parties.
(2) The obligation of confidentiality extends beyond the termination of the License Agreement.
(3) The parties bind their employees, consultants and other third parties who become aware of classified information and are not already legally bound to maintain confidentiality in accordance with Par. 1 and 2.
§ 13 Affiliated Companies
All rights granted by Bigpoint GmbH in this License Agreement apply to all Bigpoint-affiliated companies as stated in § 15 et seq. of the German Companies Act (AktG) (as long as their status as affiliated companies remains effective).
§ 14 Duration
(1) The license for each Partner's Game can be terminated separately for each Game within a deadline of four weeks, with an effective date from the end of the minimum duration of the contract, if a minimum duration was agreed to online.
(2) The right to terminate the License Agreement (in its entirety or for a single Game) for an important reason remains unaffected.
(3) An important reason for the termination may refer to one of the following cases in particular:
- Indebtedness or insolvency, impending insolvency or the initiating of bankruptcy proceedings or similar proceedings against the assets of a party;
- Serious and sustained breach of these contractual obligations, which continued despite prior warning and continuation of the contract is unconscionable.
(4) Contract termination must be submitted in writing.
(5) In the event of termination, the parties will work together in order to dissolve the existing contracts in such a way as to affect the players as little as possible. To this effect, the partner agrees to take over the contracts between Bigpoint and the players as of the effective date of the end of the cooperation ("Effective Date"). The partner will – with the consent of each respective player – enter into the existing agreements of game use and assume the rights and responsibilities of Bigpoint. After the Effective Date, the partner is entitled to adjust the contractual relationship, as long as these adjustments respect the Terms & Conditions of Bigpoint-concluded agreements of game use. Should any form of compensation be due to a player in such a case – for example loss of money invested for individual game functions – the Partner is obliged to make such payment. How this compensation is to take place is entirely up to the discretion of the Partner.
§ 15 Severability
If there are rules and/or provisions of this License Agreement which are seen as null and void, the parties commit themselves to replace these with effective rules and provisions which as much as possible fulfill the purpose of the ineffective regulation. The remaining provisions shall remain in effect. The same applies in the case where a gap is found in the existing rules and provisions.
§ 16 Final Provisions
(1) Changes to the License Agreement and provisions of this Agreement must be made writing. This also applies to an amendment of the written form clause. Verbal agreements are invalid.
(2) This License Agreement shall be governed by and construed in accordance with the substantive laws of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG)
(3) The court of jurisdiction shall be Hamburg, Germany.