GENERAL
This Developer Game License Agreement ("Agreement") is between OneTwoPlay BV, a limited liability company under Dutch law with registered office at Amsterdam, Netherlands, registered under company Dutch Law, with trade name “OneTwoPlay” (hereinafter: “Rubicon”, “us", "we", or "our") which operates the following sites: (the “Service” or “Distributor”) and the owner and/or
lawful licensee of the Content (herein referred to as “You” or “Your” or as “Owner"),
each a “Party” and collectively the “Parties”.
This Agreement relates to the distribution platform operating under the “www.rubicon.im” domain, a registered trading name of Distributor, both over which Distributor exercises jurisdiction and control.
If You do not agree to all the terms of this Agreement, You are not permitted to create an account on the distribution platform.
By creating an account on the distribution platform, You agree with all the terms and conditions of the Agreement.
1. DEFINITIONS
Advertisement and Hosting Costs: The ln-Content Advertisement platform costs
and content hosting costs incurred by Distributor, which are set to a maximum at
fifteen(15) percent of the Gross ln-Content Revenues (if applicable), and ii) VAT (if
applicable).
Content: means the game(s) which is owned by You and/or Your licensor which You
will upload to the Distribution Platform.
Data Subjects: means end users.
Defects: are categorized in the following categories:
(i) Critical Defect: causes the server software not to be able to provide the game services to the users, causes individual functions expressly agreed upon to fail, causes substantial number of users to be unable to purchase any in-content items, causes the Content software to crash or to be unable to be executed or to connect to the server software in a substantial number of cases and/or other defects which cause the user to be unable to use the service at all or only in a severely limited way, or is considered an “Exploit”. This constitutes a lack of “Availability.”
(ii) Relevant Defect: causes individual functions of the server software which the Parties have not agreed upon in advance to cause a critical failure and/or features of the Content software to fail, which are not just an inconvenience.
(iii) Inconvenient Defect: causes single features or functions of the Content
software to fail, but without limiting the ability to use the Content or to purchase in-content items in a severe manner.
Distribution Platform: means the distribution platform exploited by OneTwoPlay B.V. under the domain name www.rubicon.im.
Effective Date: the date that You created an account on the Distribution Platform and accepted the terms of this Agreement.
Gross In-Content Revenue: all revenues generated and received by Distributor through IAP, In-Content Advertisement.
In-App Purchase (IAP): means being able to purchase a digital product/item/service within the Content distributed and VAT (if applicable).
In-Content Advertisement(s): means the digital advertising displayed to Data Subjects, from within the distributed content made available through the Distribution Platform.
Initial Term: the period of one year (12 calendar months) starting on the Effective Date.
Intellectual Property Rights: all intellectual property rights, either registered or unregistered, among which trademarks, patent rights, design rights, trade names, copyrights, neighbouring rights, moral rights, database rights, and similar proprietary rights.
Net Revenue: the Gross In-Content Revenue, less publisher’s share, the Advertisement and Hosting Costs, and payment providers costs and VAT, if and where applicable.
SDK: a scripted code provided by Distributor to implement in the Content, which includes but is not limited to, tracking features, advertisements code(s), statistics, and IAP, in order to calculate and monitor the revenues and to optimize its performances.
Term: any period of one year (12 calendar months) of automatic renewal after the Initial Term.
2. DEVELOPER LICENSE
2.1 Subject to this Agreement: in consideration of using the Service, Owner hereby grants to Distributor a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, transferable right and license (with the right to sublicense to any person or entity, whether a user of the Service or not, without additional approval, notice, payment or attribution of any kind to you or any third party) to host, store, transfer, publicly display, publicly perform, reproduce, modify, create derivative works of, distribute, and use in any way the UGC that you Provide, in whole or in part, including modifications and derivative works, in any media or formats (tangible or intangible) and through any media, items or channels (online, offline, or others, now known or hereafter developed), including for publicity and marketing purposes.
2.2 Distributor may subcontract its obligations under this Agreement to any third party. Owner hereby grants to Distributor a non-exclusive, limited license to use and publish Owner’s trademarks and logos in connection with the execution of the Agreement.
3. SERVICES PROVIDED BY OWNER / DISTRIBUTOR
3.1 During the Initial Term and any subsequent Term, Owner shall:
● be solely responsible for all programming, design and game development of the Content;
● not use any copyrighted or registered trademarks of any kind of names and/or visual materials in the Content that are not owned by Owner;
● before uploading the Content, implement the SDK in the Content as
instructed by the Distributor; failure to do this will result in a denied request for publishing;
● ensure that all Content updates and features of the Content are made
available for the version integrated on the Distribution Platform and that Content distributed on the Distribution Platform hereunder is always identical to the latest version of the Content published on other platforms/websites,apps etc.;
● provide the games localized at least in English;
● provide each Distributor referred (end) user with a unique tracking code as registered by SDK (or use any other method as agreed between the Parties) so that all Distributor referred (end) users can be monitored by Distributor during the Initial Term and any subsequent Term in connection with the revenue shares under this Agreement;
● be responsible for providing user support in relation to the Content, including community management;
● not include any link to a web domain or content(s) outside the Distribution Platform in Content integrated on the Distribution Platform without Distributors prior consent.
3.2 With respect to the Content, during the Initial Term and any subsequent Term, the Owner adheres and agrees to meet the levels of dedication required for operating/distributing an online gaming experience on the Distribution Platform. Specifically, Owner shall meet the following minimum service level requirements regarding issues reported by Distributor and/or third party publishers:
● Owner shall ensure a time to respond (TTR) of no more than 24 (twenty four)
hours after a reporting of a Defect in the Content or issues related to
payment, and 48 (forty eight) hours for non-payment related issues;
● Time To Resolution (“TTRS”) on Critical Defects and Exploits is no more than 24 hours after reporting of such issues. Should the issue not be fixed after 48 hours, and affect multiple Distributor referred users, Distributor has the right to deduct 0.5% point from Owner’s revenue share multiple referred to in Section 4 for each day the issue has not been resolved (day 1: 0,5% deduction, day 2: 1,0% deduction, day 3: 1,5% deduction and so on);
● TTRS for non-payment related issues and Relevant Defects is no more than 72 hours after reporting of such issues. Should the issue not be fixed after 5 days, and affect multiple Distributor referred users, Distributor has the right to deduct 0.5% point from Owner’s revenue share multiple referred to in Section 4, for each day the issue has not been resolved (day 1: 0,5% deduction, day 2: 1,0% deduction, day 3: 1,5% deduction and so on);
● TTRS for Inconvenient Defects is no more than two (2) weeks after reporting of such issues.
3.3 Subject to the terms and conditions of this Agreement, during the Initial Term and any subsequent Term, Distributor shall host the Content in full on the Distribution Platform. Exceptions for hosting the Content in full will be accepted only by written consent of Distributor. Distributor shall use commercially reasonable efforts to serve the advertisements within the Content through use of the SDK. Distributor has the right to block any outgoing links in the Content through the SDK in order to meet third party publisher requirements for placing Content on their network.
4. REVENUE SHARE
4.1 During the Initial Term and any subsequent Term, Owner is entitled to a revenue share of fifty percent (50%) of the Net Revenue.
4.2 During the Initial Term and any subsequent Term the Owner can access at any time the share reports on the Net In-Content Revenue made each month (the "Preceding Month ") in the reporting section of the Distribution Platform.
4.3 Within 60 days after the end of the Preceding Month, Distributor will pay Owner’s revenue share with respect to that month.
4.4 Owner’s revenue share will only be paid out provided that the accumulated outstanding amount is at least EUR 50 for PAYPAL and EUR 100 for Bank transfers.
lf this minimum amount is not met, the outstanding amount will accumulate and transfer to the next month until the minimum is reached. Each party shall be responsible for its own taxes of whatever nature.
4.5 Each party shall be responsible for its own taxes of whatever nature.
4.6 The Owner declares by entering into this Agreement that it acts as a VAT taxable person within the meaning of Article 9 of the EU VAT Directive 2006 (Council Directive 2006/112/EC, PbEU, L 347), wherever Owner is established or lives. In the event the Owner is established or lives in The Netherlands, and grants the distribution rights from The Netherlands or from a permanent establishment in The Netherlands, the payable revenue share will be increased with the applicable VAT (at present 21% of the revenue share). Payments including VAT as meant in this paragraph, will only be made after the Owner has supplied its Netherlands VAT identification number to the Distributor. The Owner agrees that the Distributor sends a credit invoice to the Owner for the payments made by the Distributor to the Owner.
5. REPRESENTATIONS AND WARRANTIES / INDEMNIFICATION / LIABILITY
5.1 Owner hereby represents and warrants that:
● it is authorized to enter into the Agreement and perform its obligations hereunder;
● it conducts its business in compliance with all applicable laws, rules and regulations, including without limitation applicable data protection laws;
● the execution of this Agreement and the performance of its obligations hereunder will not conflict with or cause a breach or violation of any agreement, law, regulation or other obligation to which it is a party or subject;
● it owns all or has a license to the Intellectual Property Rights in the Content, including the right to (sub)license to Distributor under this Agreement;
● the Content will be up-to-date, true, correct, accurate, and will not: (i) be misleading or deceptive; (ii) be obscene, defamatory or otherwise unlawful;
(iii) be violent, sexual or abusive in nature so as to be reasonably likely to cause offence to any material group of people;
● the Content, including any product or services offered through the Content, and the use thereof will not infringe any right of any person or entity, will not infringe any Intellectual Property right or other rights of any person or entity, and will not breach any applicable law, regulation, rule or relevant industry codes;
● the availability of, and support for the Content will be at all times of a high quality, and will meet the specifications and service level criteria under this Agreement;
● Distributor nor the publisher or the (end) user will be exposed to any computer virus (or any similar or other damaging components) from the Content;
● it will comply with all applicable laws on personal data protection as well as Distributor privacy policy in respect of the collection, use and disclosure of any personally identifiable information;
● there is no current or impending claim or proceedings anywhere in the world in respect to the Content.
5.2 Distributor hereby represents and warrants to Owner that it is authorized to enter into this Agreement and perform its obligations hereunder.
5.3 Owner will defend, indemnify, and hold Distributor, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against Distributor or its third party (publisher) regarding: (a) actual or alleged infringement of any Intellectual Property Rights in the Content; (b) a breach of Owner’s representations and warranties as set forth above; (c) any end user’s/ player’s use of the Content including, without limitation, any actions or claims in product liability, tort, contract, or equity.
5.4 Distributor will defend, indemnify, and hold Owner, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against Owner for a breach of Distributor’s representation and warranty as set forth in Section 5.2
5.5 Owner acknowledges that the Distribution Platform and any advertising, information, data, or (game) content thereon are “AS IS”. Except as expressly provided in this Agreement, Distributor disclaims any and all representations and warranties with respect to the Distribution Platform and all advertising, information, data and (game) content thereon including without limitation, any implied warranties and any warranty of continuous, uninterrupted, bug-free, secure, virus-free access to the Distribution Platform and/or any of its advertising, information, data and (game) content.
5.6 DISTRIBUTOR’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH AN
ATTRIBUTABLE FAILURE TO FULFIL ANY OBLIGATIONS UNDER THE
AGREEMENT, A WRONGFUL ACT AND/OR ANY OTHER LEGAL GROUNDS,
FOR ANY KIND OF DAMAGE INCLUDING CLAIMS OF THIRD PARTIES,
INCLUDING DATA SUBJECTS, AND REGULATORY AUTHORITIES, WILL BE
LIMITED TO THE AMOUNT OF REVENUE SHARE PAID OUT BY DISTRIBUTOR
TO OWNER IN THE PREVIOUS THREE (3) MONTHS PRIOR TO THE DATE THE
ALLEGED FAILURE TO FULFIL ANY OBLIGATIONS UNDER THE AGREEMENT
AND/OR THE WRONGFUL ACT FIRST AROSE, BUT IN NO EVENT TO EXCEED
€1,000 (ONE THOUSAND EURO).
6. DATA PROTECTION
6.1 OneTwoPlay B.V., in relation to its platform www.rubicon.im, acknowledges its role as a “Data Controller” as defined within the EU General Data Protection Regulation “GDPR”, whenever and wherever the Distributor’s cookies are utilized. The Distributor utilizes Data Subject consent as their legal basis for data processing activities. This does not include user account data associated with the Content.
6.2 The Distributor recognizes the Owner’s role as a Data Controller, in all cases where user personal data is derived from the Owner’s cookies or from user accounts developed within the Content. The Distributor encourages all Owners to utilize consent for the processing of this data, but recognizes the Data Controller’s right to opt for “Legitimate Interest,” as defined within the GDPR, as a lawful basis for the processing of this data. If Owner opts to utilize Legitimate Interest as its lawful basis for data processing, the Distributor requires that the Owner notify the Distributor in advance in writing.
6.3 The Distributor strongly recommends that all Developers reference and provide links within their privacy notices and policies, to the Distributor’s privacy policy, in order to effectively detail for the Data Subject, all data processing activities associated with the Distribution Platform.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights which already existed at the time of entering into this Agreement remain the property of the Party to which it belonged at that time. Parties shall only acquire rights from the other Party as are explicitly granted in this Agreement.
7.2 Owner hereby grants to Distributor a worldwide, royalty-free license, with the right to sublicense to the extent necessary for the proper performance of this Agreement, including without limitation, to distribute, publish, advertise and promote the Content through the Distribution Platform.
8. TERM AND TERMINATION
8.1 This Agreement will be entered into for the Initial Term. Thereafter, the Agreement shall automatically renew for the same period of time, unless terminated by either Party in writing (excluding e-mail) upon three (3) months’ written notice prior to the end of the Initial Term or any subsequent Term.
8.2 Either Party may terminate the Agreement if:
● the other Party materially breaches a term or condition of this Agreement and fails to cure such breach within thirty (30) days of written notice specifying the breach.
● the other Party is put into liquidation or has ceased to conduct its business;
● the other Party requests or obtains (provisional) suspension of payment or is declared bankrupt;
● the other Party loses command over its assets or part thereof due to seizure, by being placed under trusteeship or in any other way, and such command is not returned within 4 weeks after the loss thereof;
● it can only be reasonably expected that the other Party can no longer meet its obligations under this Agreement.
● the other Party is found to be in violation of its respective obligations as defined within the GDPR, applicable data protection law, or its contractual data protection commitments.
8.3 Distributor may terminate this Agreement in whole or in part with immediate effect and without any liability for damages in the case where: i) the Content or any product or service included therein infringes any third party rights or is in violation of any applicable law or regulation, ii) the warranties of Owner as set out in this Agreement are not fulfilled; or iii) a breach of Section 3.2 or Section 9.1.
8.4 The termination grounds referred to in 8.2 and 8.3 do not prejudice the causes for termination and relating remedies arising from law.
8.5 Obligations, which, according to their nature, are destined to continue also after the termination of this Agreement, shall survive any termination of this Agreement.
9. MISCELLANEOUS
9.1 Except as expressly and unambiguously allowed herein, each Party will hold in confidence and not use (other than necessary for the proper performance of this Agreement) or disclose any Confidential Information, and will similarly bind its employees and contractors in writing. “Confidential Information” means all information, except information the receiving Party can document:
● is or becomes, through no fault of the receiving Party or its employees or contractors, generally known or available to the public;
● was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information;
● was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the disclosing Party;
● is independently developed by the receiving Party without access to the other Party’s similar Confidential Information; or
● is mandatorily required by law or order of a court, administrative body or other governmental body to be disclosed by the receiving Party.
The Parties' obligations with respect to Confidential Information will remain in effect for three (3) years from the date of last disclosure made by any Party.
9.2 Owner shall not assign, sublicense, transfer, encumber or otherwise dispose of the Agreement without the prior written approval of Distributor. Any attempted assignment, sublicense, transfer, encumbrance or other disposal of the Agreement by Owner in violation of this provision will constitute a material default and breach of this Agreement. Except as otherwise provided, this Agreement will be binding upon and inure to the benefit of the Parties' successors and lawful assigns.
9.3 Distributor is entitled to suspend its services under any Agreement during the period that Owner is in breach of any provision of this Agreement.
9.4 No Party shall be deemed in default hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including but not limited to: earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”). Each Party shall have the right to terminate the Agreement immediately upon written notice if any Force Majeure Event of another Party continues for more than thirty (30) days.
9.5 A Party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
9.6 This Agreement may be periodically updated and the current version will be published on the Distribution Platform. Your continued use of the Distribution Platform after a revised Agreement has been published on the Distribution Platform constitutes Your acceptance of its terms.
9.7 The Parties are independent contractors. Neither Party will be deemed to be an employee, agent or legal representative of the other Party for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other Party.
9.8 Distributor may subcontract its obligations under this Agreement to any third party provided that Distributor will be responsible and liable for the acts of the third party concerned relating to this Agreement. Distributor is allowed to transfer its legal relationship with the Owner to a third party as well. Owner gives hereby permission in advance for such a transfer.
9.9 Without prejudice to the foregoing, Distributor may at its sole discretion at any time take down the Distribution Platform, or remove the Content from the Distribution Platform, or to require adjustments to the Content, if required to comply with applicable law or regulations, or if necessary due to claims of infringement.
9.10The applicability to this Agreement of either the Owner’s general or special terms and conditions, however named, is hereby expressly rejected.
9.11 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction and Parties shall in good faith negotiate to replace the invalid/unenforceable provisions with valid/enforceable provisions.
9.12 This Agreement and any relating addendums, amendments or further agreements shall be governed by the laws of The Netherlands. Disputes, claims and all other issues arising out of or in connection with this Agreement or further contracts resulting thereof shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, The Netherlands.
