NON-EXCLUSIVE DISTRIBUTION AGREEMENT
This Non-Exclusive Distribution Agreement (this “Agreement”) is made and effective as of ____________ (“Effective Date”) by and between Exis, LLC, with principal offices located at 23rd Floor Legg mason Tower 100 international Drive, Baltimore MD 21202 (“Publisher”) and __________________, with principal offices located at _____________________ (“Developer”). Developer and Publisher may also be referred to herein individually as ”Party” and collectively as the ”Parties.”
RECITALS
- Publisher is in the business of developing, manufacturing, publishing, licensing, distributing and selling interactive entertainment hardware, software and Games, including the SprintR controller and the Nexus portal for sale of all SprintR enabled products.
- Developer is in the business of developing interactive entertainment software and desires to incorporate SprintR controller support into the title(s) called out in this Agreement, and to license to Publisher non-exclusive distribution rights for these titles to market them to purchasers of the SprintR controller or such associated peripherals as may subsequently be added to the SprintR line of products. Developer is free to market and distribute their titles, both SprintR enabled and non-SprintR enabled, to all channels other than those controlled by Publisher.
- Developer intends to develop the Game(s) and incorporate SprintR controls as, at the minimum, an alternate control choice for players (as defined in Section 1 below), and Developer desires that Publisher publish and distribute the SprintR enabled Game(s) in accordance with the terms and conditions set forth in this Agreement.
In consideration of the mutual representations, warranties and covenants set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement agree as follows:
1. Game. Developer agrees to use its diligent, good faith efforts to develop and provide a fully bug tested, platform owner approved (where applicable) and ready for distribution to end users build of the product(s) called out in Exhibit A for distribution by Publisher.
2.Additional Materials. Developer will provide the following additional materials for each title at Submission:
(i) Minimum and Recommended Hardware configurations for each title.
(ii) A game description not to exceed 500 words.
(iii) A teaser trailer for the game
(iv) 8-12 representative screenshots from the game
(v) ESRB or PEGI Rating
3.Ownership.
3.1 Intellectual Property Defined. For purposes of this Agreement, the term “Intellectual Property” means inventions, know-how, patents, patent rights, and registrations and applications, renewals and extensions thereof, copyrights, copyrightable works / authorship (including, but not limited to, computer code, themes, objects, concepts, artwork, animation, sounds, audio-visual effects, methods of operation and any related documentation), copyright registrations and applications, renewals and extensions thereof, trademarks, service marks, trade names, trademark registrations and applications, renewals and extensions thereof, rights in trade dress, rights of paternity, attribution, integrity and other similarly afforded “moral” rights, trade secrets and other intellectual property and proprietary rights recognized by United States law and applicable foreign and international laws, treaties and conventions.
3.2 Game Properties. Developer shall retain and own all rights, title and interest in and to the Game, including, without limitation, software code (source and executable), design documents, Specifications (as defined below), artwork, materials, graphics, animation, music, game play elements, audio and visual assets and displays, and other Intellectual Property created or provided, in whole or in collaboration, by Developer under this Agreement, and the underlying properties upon which the Game is based (i.e., all aspects of the Game universe, including, without limitation, all characters, settings, stories, story lines, titles, themes, objects, dialog, catch phrases, weapons, vehicles, locations, concepts, artistic representations, rules and methods of play, names, likenesses, designs and other elements, and all trademarks, trade names, trade dress and copyrights and other Intellectual Property rights relating to such universe and elements (collectively, the “Game Properties“)).
3.3 Publisher Properties. Excluding in all events the Game Properties, as provided in Section 3.2, and the Developer Materials, as provided in Section 3.4, all components of the Game associated with the SprintR, including but not limited to the SprtinR enabled code, optimizations, algorithms, images, menus, logos, trademarks or other intellectual property of Publisher shall remain property of Publisher. Publisher hereby grants to Developer a perpetual, worldwide, non-exclusive, paid up and royalty -free license to incorporate the SprintR software, menus and controls in the Game(s) for the purpose of fulfilling their obligations under this Agreement.
3.4 Developer Properties. Developer shall own all right, title and interest in and to any preexisting software code, computer engine, utilities, editing/compiling tools, data formats or compression methods, algorithms and interface routine and general computer software design practices and proprietary development tools, including all modifications, enhancements, improvements and upgrades thereof developed in connection with the development of the Game, which have been developed by Developer and which will be included in or used in the creation of the Game (the “Developer Properties”). Developer hereby grants to Publisher and Licensor a perpetual, worldwide, non-exclusive, paid-up and royalty-free license, including the right to sublicense, to use and exploit any and all Developer Properties which are included or embodied in the Game or necessary for the Game’s operation, including, without limitation, to publish, market, advertise, distribute, sell and otherwise exploit the Game. The parties acknowledge and agree that the license granted to Publisher and Licensor by Developer as set forth in this Section 3.4 is deemed to be an intellectual property license. For the sake of clarity, no intellectual property rights are being transferred under this Agreement other than this license grant.
4. Compensation.
4.1 Royalty. Subject to full performance and compliance with its obligations under this Agreement, Developer shall be entitled to receive a royalty in an amount equal to 70 Percent (70%) of the net revenues received by Publisher relative to sales of the title(s), less only chargebacks, currency exchange costs, wire fees, sales tax and other withholding required by law based on the tax treaties between nations. Royalty reporting will occur monthly, within 30 days of the end of the reporting period.
4.2 Taxes. With the exception of items called out in Section 4.1, Developer is solely responsible for any taxes that may be imposed on Developer by any taxing jurisdictions as a result of Developer’s Services in connection with this Agreement and any compensation it receives hereunder.
4.3 Payments. All payments due hereunder shall be made to Developer in immediately available funds by wire transfer or Direct Deposit to the following account with the following reference or such other account and reference as Developer may specify by notice to Publisher thirty (30) days after receipt of an invoice for the royalties reported by Publisher.:
Bank ________________
Name of Account ________________
Account Key ________________
Sort Code ________________
Swift Code ________________
Address ________________
5. Representations and Warranties.
5.1 By Developer. Developer represents and warrants to Publisher that:
(a) Except with respect to the Publisher Rights and Materials (as defined below), Developer has full and exclusive power and authority to enter into and perform this Agreement and that such ability is not limited or restricted by any agreements or understandings between Developer and other persons or companies. “Publisher Rights and Materials” shall be defined for purposes hereof as those works and materials provided to Developer by Publisher for its use under this Agreement, including, but not limited to, any assets from the SprintR Property, together with any logos or names that Publisher requests that Developer include within the Games;
(b) The execution, delivery and performance by Developer of this Agreement have been duly authorized by any and all necessary corporate action by Developer, and this Agreement constitutes the legal, valid and binding obligation of Developer enforceable in accordance with its terms;
(c) Except as otherwise stated in this Agreement, no other person or company has or will have any right, title or interest in or to all or any portion of the Games which would in any way curtail, impair, diminish or derogate from any of the rights granted to Publisher under this Agreement, and Developer has not done or permitted to be done and will not do or authorize or permit to be done any act or thing which is or may be in any way inconsistent with or may in any way curtail, impair, diminish or derogate from any right granted to Publisher under this Agreement;
(d) (i) Any and all permissions and clearances with respect to third party tools used in the development of the Games have been obtained by Developer; (ii) Publisher’s exploitation of the Games hereunder shall not violate any such permissions and clearances; and (iii) Developer shall be responsible for and shall pay any thirty party payments for the use of such third party tools;
(e) All works and materials developed or otherwise provided by Developer in connection with the development of the Games (including, without limitation, the Games, the Developer Properties, Developer’s tradename and logo, and any other audio or visual aspects created by code) will not infringe upon or misappropriate the copyright, trademark, publicity, privacy rights or other Intellectual Property rights, and should any aspect of any version of a Game become, or, in Publisher’s or Licensor’s reasonable opinion, is likely to become, the object of any infringement or misappropriation claim or suit as a result of any such works or materials, Developer will procure for Publisher, at Developer’s expense, the right to use such version of the Game in all respects, or will replace or modify such version of the Game accordingly to make it non-infringing. This representation and warranty does not extend to the Publisher Rights and Materials;
(f) Developer has the experience and is fully capable of performing its obligations under this Agreement and shall not, during the term of this Agreement, take actions that will interfere with such performance;
(h) Developer is and at all times during the development of the Games shall remain, authorized to create software for the Operating Systems;
(i) The Games will not contain any hidden content or any other content that was not previously agreed to by the parties in the Specifications, including without limitation, any hidden or undisclosed cut scenes, “easter eggs”, code, art, feature, game play elements, or other hidden or undisclosed content, regardless of whether or not such content is programmed to be accessible or inaccessible to the player;
5.2 By Publisher. Publisher represents and warrants to Developer that (a) it has full power and authority to enter into and perform this Agreement and that such ability is not limited or restricted by any agreements or understanding between Publisher and any other person or company; (b) the execution, delivery and performance by Publisher of this Agreement have been duly authorized by any and all necessary corporate action by Publisher, and this Agreement constitutes the legal, valid and binding obligation of Publisher enforceable in accordance with its terms; and (c) the Publisher Rights and Materials will not infringe upon or misappropriate the copyright, trademark, trade secret, patent, publicity or privacy rights or any other rights to Intellectual Property of any third party
5.3 Warranty and Liability Limitations. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, RESPECTING THE GAMES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUIET ENJOYMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR THEIR RESPECTIVE LICENSEES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE (including loss of business, loss of profits, loss of data) whether or not THE PARTY has been advised or aware of the possibility for such damages AND EVEN IF THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event will either party’s liability under this Agreement (excluding liability related to Developer’s AND PUBLISHER’S indemnification OBLIGATIONS under section 6 AND BREACH BY EITHER PARTY OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8) exceed the AMOUNTS PAID TO Developer under this agreement.
6. Indemnification.
6.1 By Developer. Developer hereby agrees to indemnify, defend and hold harmless Publisher and it’s assignees, licensees and purchasers, and the officers, directors, shareholders, employees, agents and affiliates of all of them, against any and all suits, losses, liabilities, damages, awards, claims, settlements, costs and expenses, including reasonable attorneys’ fees, arising out of or otherwise relating to: (a) any breach by Developer of this Agreement; or (b) any breach by Developer of the warranties, representations and covenants contained in Section 5.1.
6.2 By Publisher. Publisher hereby agrees to indemnify, defend and hold harmless Developer, and its assignees, licensees and purchasers, and the officers, directors, shareholders, employees, agents and affiliates of all of them, against any and all suits, losses, liabilities, damages, awards, claims, settlements, costs and expenses, including reasonable attorneys’ fees, arising out of or otherwise relating to: (a) any breach by Publisher of this Agreement or (b) any breach by Publisher of the warranties, representations and covenants contained in Section 5.2.
6.3 Procedure. Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this section, notify the indemnifying party in writing of the commencement thereof. Upon receipt of such notice the indemnifying party shall have the right to assume and control the defense of such action with counsel of its choice, subject to the approval of the indemnified party, which approval shall not be unreasonably withheld. Subject to such control by the indemnifying party, the indemnified party shall have the right to participate in the defense of any action and to be represented by counsel of its own selection in connection therewith and to be fully and completed informed by the indemnifying party and its counsel as to the status thereof at all stages of the proceedings therein, all at the indemnified party’s cost and expense. Following the indemnifying party’s assumption of the defense of any action the indemnifying party shall have no further liability to the indemnified party for any legal or other expense in connection with such defense for so long as it maintains such defense. If the indemnifying party, after receipt of a written notice of an action, fails to notify the indemnified party in writing that it will assume the defense of such indemnified party against such action or if it assumes such defense and later abandons it, the indemnified party shall have the right to undertake the defense of the action on behalf of and for the account of the indemnifying party. The indemnified party shall cooperate with the indemnifying party in any defense that the indemnifying party assumes. The indemnifying party will not settle any claim without the consent of the indemnified party, which consent will not be unreasonably withheld. Subject to its receipt of such consent, the indemnifying party shall be entitled to settle any action for monetary damages if the indemnifying party will be fully responsible for all losses in respect thereof. The settlement of any other action shall be subject to the joint control of, and approval by, both the indemnifying party and the indemnified party (each of which shall exercise its respective right of joint control and approval with respect to such settlement reasonably and in good faith). The failure to notify an indemnifying party promptly of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this section, but the omission so to notify the indemnifying party will not relieve him of any liability that he may have to any indemnified party otherwise than under this Section.
7. Term and Termination.
7.1 Term. The parties agree that the term of this Agreement shall continue until such time that the parties have fully completed their obligations under this Agreement or until such time that it is terminated by either or both parties strictly in the manner and under the conditions defined below and elsewhere in this Agreement.
7.2 Termination for Breach. Upon the occurrence of any material breach of this Agreement that remains uncured for a period of thirty (30) days following written notice, the injured Party has the right to terminate this Agreement by providing additional written notice of such termination to the non-performing Party.
7.3 Termination for Convenience Either party may terminate this Agreement for convenience with sixty (60) notice to the other party.
7.4 Survival. The following sections shall survive the expiration or termination of this Agreement: 3, 4.3, 5, 6, 7.4, 8 and 9.
8. Confidentiality.
8.1 Proprietary Information Defined. During the course of this Agreement, Developer and Publisher may become aware of information relating to each other’s products, software research and development, inventions, processes, techniques, designs or other technical and business information, as well as the product and proprietary information developed by all parties in the course of developing and producing the Game. All such information and all physical forms thereof, whether disclosed to one of the other parties before or after this Agreement is signed, including the terms of this Agreement, is considered by all parties to be proprietary and confidential (“Proprietary Information“).
8.2 Non-Disclosure. Both during and after this Agreement, all parties agree that, except as authorized in writing by the other parties, it will: (a) preserve and protect the confidentiality of all Proprietary Information; (b) not disclose or otherwise disseminate to anyone other than to each other’s employees, consultants and advisors, and only as necessary to carry out the terms of this Agreement, the existence, source, content or substance of the Proprietary Information; (c) not use Proprietary Information in any way other than in furtherance of this Agreement; and (d) not disclose, use or copy any information or materials received in confidence by other parties during the course of this Agreement from a third party or about a third party. Developer may disclose the terms, conditions and existence of this Agreement to potential investors and/or acquirers after obtaining Publisher’s prior written approval, such approval not to be unreasonably withheld.
8.3 Exceptions. No party shall have liability to the others for disclosure of any Proprietary Information which one party can establish to have: (a) become publicly known without breach of this Agreement; (b) been previously publicly released for disclosure by one party; (c) been given to another party by someone other than Publisher or Developer without a duty to maintain confidentiality; or (d) been independently developed prior to the date this Agreement is signed as evidenced by related documentation.
8.4 Return of Proprietary Information. Not later than three (3) days after the termination of this Agreement for any reason, all parties will return to the others all originals and copies of Proprietary Information.
9. General.
9.1 Amendment. No amendment or modification of this Agreement will be made except by an instrument in writing signed by both parties.
9.2 Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the substantive laws of Maryland. Notwithstanding the foregoing, the parties agree that in the event of a dispute under this Agreement, the parties shall first seek to resolve such dispute through good faith negotiation. Upon notice from a party of the existence of a dispute that has not been resolved in the ordinary course, the parties shall designate a member of its senior management team to negotiate a resolution of such dispute for a period of no less than thirty (30) days. Thereafter, if such dispute has not been resolved, the parties shall select an independent and qualified mediator with at least ten (10) years relevant industry experience, and shall endeavor in good faith to resolve the dispute through mediation for an additional thirty (30) day period. If the foregoing process fails to resolve such dispute, then the parties shall be entitled to seek resolution through the courts.
9.3 Severability. If any provision of this Agreement is or becomes or is deemed invalid, illegal or unenforceable under the applicable laws or regulations of any jurisdiction, either such provision will be deemed amended to conform to such laws or regulations without materially altering the intentions of the parties and enforced accordingly or it shall be stricken and the remainder of this Agreement shall remain in full force and effect.
9.4 Headings. The headings of the sections of this Agreement are for convenience only and shall not be of any effect in construing the meanings of the sections.
9.5 Notices. All notices and statements to Publisher shall be delivered to the address set forth on page 1 of this Agreement, with a copy to Ed Dille at FOG Studios, to such address as it shall designate in writing from time to time. All notices to be given to Developer shall be delivered to the address set forth on page 1 of this Agreement, or at such other address as it may designate in writing, by notice given in accordance with this section from time to time. All notices shall be in writing and shall either be served by personal delivery, email (receipt & read confirmation required), fax, mail, or internationally recognized overnight courier service, all charges prepaid. Except as otherwise provided herein, such notices shall be deemed given when personally delivered, within three (3) days following the delivery to the office of the overnight courier service, one (1) day following the date of the fax, or on the date five (5) days following the date of mailing, except that notices of change of address shall be effective only after the actual receipt thereof.
9.6 Integration. This Agreement, including Exhibits A, of which is incorporated into this Agreement by this reference, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, thereby superseding all prior negotiations, preliminary agreements, correspondence or understandings, written or oral, between the parties.
9.7 Waiver. No waiver of any obligation by any party hereto under this Agreement shall be effective unless in writing, specifying such waiver, executed by the party making such waiver. A waiver by a party hereto of any of its rights or remedies under this Agreement on any occasion shall not be a bar to the exercise of the same right of remedy on any subsequent occasion or of any other right of remedy at any time.
9.8 Presumptions. Because the parties hereto have participated in drafting this Agreement, there shall be no presumption against any party on the ground that such party was responsible for preparing this Agreement or any part of it.
9.9 Remedies. Unless expressly set forth to the contrary, either party’s election of any remedies provided for in this Agreement shall not be exclusive of any other remedies available hereunder or otherwise at law or in equity, and all such remedies shall be deemed to be cumulative.
9.10 Assignment. Because of the special and unique qualities of Developer, this Agreement is personal to Developer, and may not be assigned in whole or in part by Developer without prior written consent of Publisher. Notwithstanding the foregoing, this Agreement shall be binding upon the personal representatives, successors and permitted assigns of Developer, and the successors and assigns of Publisher.
9.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original Agreement for all purposes, including the judicial proof of any of the terms hereof, provided, however that all such counterparts shall constitute one and the same Agreement.
9.12 Attorneys’ Fees. Should any litigation be commenced among the parties in relation to this Agreement, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for attorneys’ fees in connection with such litigation or in a separate action brought for that purpose.
9.13 Independent Contractor Status. Neither party shall have, nor shall represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name, except as herein expressly provided. Nothing stated in this Agreement shall be construed as constituting the parties hereto as partners or as creating the relationships of employer / employee, franchisor / franchisee, or principal / agent between the parties. Developer is performing services for Publisher as an independent contractor. Nothing contained in this Agreement constitutes appointment of either party as an agent, representative, partner, joint venturer or employee of the other party for any purpose. Neither party can bind the other to any agreement with any third party.
Signatures Below In Document.