jampacklicensingagreement - Games for Love

Licensing Agreement

This Licensing Agreement (this “Agreement”), dated as of today (the “Effective Date”), is made by and between [LICENSOR NAME] (“Licensor”), a [STATE OF ORGANIZATION] [ENTITY TYPE] with offices located at [ADDRESS], and Games For Love (“GFL”), a Washington State non-profit corporation with an address at 16824 44th Ave W, Ste 130, Lynnwood, WA, 98037-3111. Licensor and GFL may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Licensor wishes to contribute to GFL’s efforts of providing video games and other electronic media to children in hospitals; and

WHEREAS, GFL wishes to license certain materials from Licensor to include such materials on the Platform, on the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Deliverables” means all software, Documentation, work product, and other materials that Licensor is required to provide to GFL or its designee under this Agreement and otherwise in connection with the Services.

“Documentation” means all user manuals, operating manuals, technical manuals, and any other instructions, specifications, documents, and materials, in any form or media, which describe the Game’s functionality, installation, testing, operation, use, maintenance, support, and technical and other components, features, and requirements.

“First Party(ies)” are those entities from which GFL must get approval for the Game to be released on the applicable Platform (e.g., [PLATFORM OWNER NAME] is the First Party for approvals of Games on Jampack).

“Game” means the completed electronic game that embodies or incorporates the Software, Licensed Property, GFL Materials, and Licensor Tools and Technology for the Platform as further described on Schedule A (Specifications) and the Documentation and Updates. If Schedule A (Specifications) lists multiple Games that Licensor will provide under this Agreement, then references to “Game” in this Agreement are deemed to refer to each such Game listed in Schedule A (Specifications).

“GFL Materials” means all materials and information owned or controlled by GFL, including documents, text, graphics, photos, designs, GFL Trademarks, logos, data, know-how, ideas, methodologies, specifications, third-party software development kits (SDKs), content, and technology, that GFL delivers to Licensor to incorporate and implement into the Game. The tentative GFL Materials may be set forth on Schedule A (Specifications).

“GFL Trademarks” means GFL’s trademarks or trade names, and any and all artwork, slogans, and other materials used in conjunction therewith.

“Harmful Code and Content” means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive GFL or end users of their lawful right to use the Game; or (c) content that: (i) violates First Party policies regarding its use on the applicable Platforms; or (ii) is indecent, pornographic, obscene, or defamatory, including hidden “easter eggs” containing any of the foregoing content.

“Intellectual Property Rights” means any and all registered and unregistered rights now or hereafter existing under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, award, decree, directive, other requirement, or rule of law of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Licensed Property” means the property that Licensor has licensed from the Third Party Licensor(s) for use in the Game.

“Licensor Tools and Technology” means any tools, software, know-how, and other technology used in the Game as well as any improvements thereto.

“Licensor Trademarks” means Licensor’s trademarks or trade names, and any and all artwork, slogans, and other materials used in conjunction therewith.

“Live Services” means any ongoing development and maintenance services relating to the Game, which may include game patches, bug fixes, performance optimizations to the client or server software, content updates, feature updates, and maintenance of any live Game, as further described on Schedule B (Live Services).

“Localization” (or “Localize”) means the conversion of (or to convert) the English language Game to a foreign language version as set forth herein or as the Parties may mutually agree upon in writing at a later date.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Platform” means the Jampack platform.

“Software” means any and all computer programming or formatting code or operating instructions, tools, technology and engines, including without limitation analytics tools, localization tools, publisher tools, client engines, server engines, game logic and code required for gameplay, data warehouse, global distribution application programming interface and shared services application programming interfaces, used to create any portion of the Game or operate the Game, as well as any updates, improvements, modifications, enhancements, or derivatives of any of the foregoing.

“Source Code” means the human readable source code of the Software, in the programming language in which it was written, together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to enable a programmer reasonably fluent in such programming language to understand, operate, support, maintain, and develop modifications, upgrades, updates, enhancements, improvements, and new versions of, and to develop computer programs compatible with, the Software. “Source Code” includes all Updated Source Code (as defined in Schedule B).

“Specifications” means the approved, detailed Game description set forth in Schedule A (Specifications).

“Term” shall mean the period starting on the Effective Date and continuing as long as GFL makes the Game available to GFL’s users and customers and one (1) year thereafter.

“Third Party Licensor(s)” means a third party from whom Licensor licensed the Licensed Property.

Engagement of Licensor.
1. Engagement of Licensor. GFL hereby engages Licensor, and Licensor hereby accepts such engagement, to deliver to GFL the Game in accordance with the Specifications and provide related services as further described herein, including Live Services (collectively, the “Services”) on the terms and conditions set forth in this Agreement.
2. Licensor’s Performance. Licensor will perform the Services in a timely, professional, and workmanlike manner and in accordance with the terms, conditions, and Specifications set forth in this Agreement.
3. Open Source Components. Notwithstanding anything to the contrary in this Agreement, Licensor will not use any Software, Source Code, Licensed Property, or Licensor Tools and Technology that may contain, incorporate, or reply upon any Copyleft License in the delivery of the Game and/or any Services, and GFL’s use of the Game and Services shall not cause GFL or GFL’s Intellectual Property Rights to be subject to the terms or conditions of a Copyleft License, or require GFL to fulfil any open source license obligations for any open source software contained within the Game and/or any Services. As used herein, “Copyleft License” means any license to open source software that requires, as a condition of use, modification and/or distribution of the open source licensed under such license, that the open source, or other intellectual property incorporated into, derived from, used, or distributed with the open source: (i) be made available or distributed in a form other than binary code or object code form (e.g., source code form); or (ii) be licensed under terms that allow the other intellectual property incorporated into, derived from, used, or distributed with the open source, or portions thereof or interfaces therefor, to be reverse engineered, reverse assembled or disassembled (other than by operation of law).
4. Ability to Remove the Game from the Platform. For the avoidance of doubt, GFL may permanently or, from time to time, temporarily remove the Game from the Platform and/or cease allowing users to download, access, or use the Game as GFL determines in its sole discretion and such removal by GFL will not be a breach of this Agreement.
Game Delivery, Review, and Localization.
1. Delivery.
  1. Delivery Date. Licensor will deliver the Game and other materials provided in this Section 3.1 by ______________, 202_ (the “Delivery Date”).
  2. Game Delivery. Licensor shall deliver to GFL the Game, including a copy of the final version of the object code in machine-readable form and all compiler, artwork, and any other assets in electronic format, on or before the Delivery Date. Licensor shall not deliver the final Game until it has been thoroughly tested by Licensor and is certified by Licensor to be free of errors, not to contain any Harmful Code and Content, and otherwise to comply with the Specifications and be in conformity with this Agreement.
  3. Source Code. Licensor shall deliver to GFL a copy of the final version of the annotated Source Code in machine- and human-readable form and all compiler, artwork, and any other assets in electronic format, on or before the Delivery Date. Licensor shall not deliver the final Source Code until it has been thoroughly tested by Licensor and is certified by Licensor to be free of errors, not to contain any Harmful Code and Content, and otherwise to comply with the Specifications and be in conformity with this Agreement.
2. Approval Process. GFL will have twenty (20) business days (the “Approval Period”) from the date on which Licensor delivers the Game to GFL to test and evaluate the Game, including submitting the Game to any First Parties for approval (if applicable). A designated representative of GFL will notify Licensor in writing within the Approval Period of GFL’s and First Parties’ approval (“Notice of Approval”), conditional approval (“Conditional Notice of Approval”), or non-approval of the Game (“Notice of Non-Approval”). GFL will not unreasonably delay the review or testing procedures of the Game, subject to First Parties who may have the right to approve or reject the Game in their sole discretion. Failure by GFL to respond within the Approval Period will be deemed a Notice of Non-Approval. Licensor agrees to use commercially reasonable efforts to help GFL obtain approvals from First Parties for the Game.
  1. Conditional Notice of Approval. If GFL gives Licensor a Conditional Notice of Approval, such Conditional Notice of Approval will set forth the changes, including errors for correction, to the Game required by GFL and/or a First Party for GFL to issue a Notice of Approval. Licensor will resubmit a further corrected copy of the Game (and, where applicable, Source Code), in which such changes have been implemented and such errors have been corrected, within fifteen (15) business days after issuance of the Conditional Notice of Approval, or such longer period as set forth by GFL in the Conditional Notice of Approval. Upon such resubmission by Licensor, the Approval Period will be extended for an additional twenty (20) business days for GFL’s review of the Game in accordance with this Section 3.2.
  2. Notice of Non-Approval. If GFL gives a Notice of Non-Approval, such Notice of Non-Approval will set forth the changes, including errors for correction, to the Game required by GFL or a First Party for GFL to issue a Notice of Approval. Licensor will, within fifteen (15) business days after the issuance of the Notice of Non-Approval a further corrected copy of the Game (and, where applicable, Source Code) in which such errors have been corrected. Upon such resubmission, the Approval Period will be extended for an additional twenty (20) business days for GFL’s review of the Deliverables in accordance with this Section 3.2.
  3. Final Notice of Non-Approval. If, after the resubmission of the Game (and, where applicable, Source Code) for which a Conditional Notice of Approval or Notice of Non-Approval has been issued, GFL finds that any of the matters specified in its Conditional Notice of Approval or Notice of Non-Approval have not been adequately corrected or if new problems not so notified have been introduced into the Game, then GFL may give a further Conditional Notice of Approval or Notice of Non-Approval to Licensor or notify Licensor of GFL’s final non-approval of the applicable Deliverables (“Final Notice of Non-Approval”). The issuance of a Final Notice of Non-Approval by GFL will be deemed a material breach by Licensor.
3. Localizations.
  1. Licensor shall supply to GFL all reference, instruction, and other associated textual materials and other Game materials to enable GFL to translate all user instructions and other associated textual materials of or concerning the Game into the languages specified in Schedule A (Specifications). To enable Licensor to Localize the Game, GFL shall be responsible for translations into the applicable languages and shall provide Licensor with the translation of any text to be displayed on screen (including user instructions related to the Game, screen text and fonts, and audio tracks if applicable) of or concerning the Game, in both document form and a computer readable format as agreed by the Parties, and all materials and information necessary for Licensor to create the electronic title page.
  2. Licensor acknowledges that Localization of the Game into the languages set forth on Schedule A (Specifications) including double-byte enabled languages, is included.
  3. Subject to Licensor’s and GFL’s fulfillment of their respective obligations set forth in Section 3.3(a), Licensor agrees to take the translated and Localized materials from GFL and recompile them into the Game to make the Game suitable for use in the languages set forth on Schedule A (Specifications) and to deliver such Localized Games in the appropriate format.
  4. All Deliverables delivered to GFL with respect to Localizations will be subject to the same delivery and approval process as set forth in this Section 3.
  5. If GFL elects to have the Game Localized into any languages other than those set forth on Schedule A (Specifications), Licensor shall deliver all such versions as mutually agreed in writing by the Parties.
Live Services. Licensor shall perform Live Services as set forth on Schedule B (Live Services) after receiving a Notice of Approval for the Game. In connection with the Live Services, Licensor will undertake the efforts set forth on Schedule B (Live Services).
Consideration. Licensor’s (a) grant of the licenses set forth in this Agreement and (b) Licensor’s other obligations set forth in this Agreement are granted and entered into herein in consideration of (x) Licensor’s desire to support GFL’s charitable mission and (y) the potential introduction of the Game to new users who may not otherwise encounter or use Licensor’s Game. Both Parties acknowledge and agree that such consideration is sufficient and the basis for each Party willingly entering into this Agreement and agreeing to its respective obligations set forth herein.
Confidentiality.
1. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, including the terms and conditions of this Agreement, Specifications, and marketing, manufacturing, and publisher or client information, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party will not disclose the disclosing Party’s Confidential Information to any Person, except to the receiving Party’s employees, contractors, and advisors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, provided that, in each case, the receiving Party shall remain responsible for all acts and omissions of such employees, contractors, and advisors regarding the Confidential Information. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such non-disclosure obligations will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable Law. Licensor agrees to cause all of its employees, contractors, and advisors with access to any of GFL’s Confidential Information to enter into a confidentiality agreement at least as protective as the obligations set forth herein.
2. Limitations on Confidentiality Obligation. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable Law or other legal process, provided that the Party making the disclosure pursuant to the order shall, to the extent legally permitted, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings. Notwithstanding anything to the contrary contained herein, GFL’s obligations of non-disclosure will not apply to GFL’s disclosure to: (i) Affiliates; (ii) applicable First Parties of the terms and conditions of this Agreement; and (iii) third parties necessary for GFL’s, or GFL’s licensees’ or sublicensees’, exploitation of the Game in accordance with the terms and conditions of this Agreement; provided that GFL requires such third parties to assume confidentiality obligations no less strict than those set forth in Section 6.1 with respect to any of Licensor’s Confidential Information disclosed to such third parties.
3. Breach of Confidentiality Obligations. Each Party acknowledges that a breach by the other Party or its employees, contractors, or advisors of this Section 6 may cause the first Party irreparable damages for which an award of damages would not be adequate compensation, and the other Party agrees that, in the event of a breach or threatened breach of this Section 6, the first Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
Intellectual Property Rights.
1. Intellectual Property Ownership. Subject to Sections 7.2 and 8.2, all right, title, and interest in and to the Game, Software, Deliverables, Licensor Tools and Technology, Licensor Trademarks, and Licensed Property, including all Intellectual Property Rights therein, are and will remain with Licensor or the respective rights holders, including in any third-party tools used to develop the Game and contained in the Software for their authorized use as contemplated herein.
2. GFL Materials and Licensed Property. GFL is and will remain the sole and exclusive owner of all right, title, and interest in and to the GFL Materials, including all Intellectual Property Rights therein. Licensor has no right or license to, and may not, use any GFL Materials except solely during the Term to the extent necessary to perform its obligations under this Agreement. If Services result in new derivative works embodying any GFL Materials, then those elements embodying GFL Materials will be deemed to have been created as works made for hire as defined in Section 101 of the Copyright Act of 1976 for GFL and/or the holder(s) of the rights to the GFL Materials. To the extent that those elements embodying GFL Materials or Licensed Property do not qualify as, or otherwise fail to be, works made for hire, Licensor hereby assigns, transfers, and otherwise conveys to GFL, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to those elements embodying GFL Materials, including all Intellectual Property Rights therein. Licensor acknowledges and agrees to the holders of the rights to GFL Materials or Licensed Property being third-party beneficiaries of this Section 7.2 and Agreement in general.
Licenses.
1. License Grant to Licensor. GFL hereby grants to Licensor the limited, royalty-free, non-exclusive right and license to GFL Materials solely as permitted by this Agreement and as necessary to perform the Services during the Term. Except for the limited license expressly granted under this Section 8.1, GFL reserves all rights in the GFL Materials. GFL Materials are deemed to be GFL’s Confidential Information.
2. License Grants to GFL.
  1. License to the Game. Subject to the terms and conditions of this Agreement, Licensor hereby grants to GFL and its Affiliates a perpetual, worldwide, royalty-free, non-exclusive, non-transferable (except as set forth in Section 15.8), irrevocable, license during the Term, to use, enable Game users to use, download, enable Game uses to download, reproduce, perform (publicly or otherwise), display (publicly or otherwise), sublicense (at an unlimited number of levels), adapt, sell, market, advertise, promote, distribute, exploit, and otherwise utilize the Game (and the Licensor Tools and Technology and Licensed Property contained therein) for and in connection with publishing, distributing, and promoting the Game. For the avoidance of doubt, the foregoing license grant to the Game includes the right for GFL to enable users of the Platform to play the game and for each user to download the Game to each such user’s device.
  2. License to Licensor Trademarks. Licensor hereby grants GFL a non-exclusive license to use Licensor Trademarks in connection with the Game, including marketing and promotion thereof. Licensor acknowledges that GFL or any third party designated by GFL has the right to use any trademarks, trade names, or labels in connection therewith. GFL has the right to use the names and likenesses of Licensor’s principals and employees in connection with the promotion and advertising of the Game. Licensor shall provide, at GFL’s cost, promotional and public relations services, including the personal availability of Licensor’s principals and employees when and if possible, as GFL may reasonably request from time to time; provided any such costs and expenses shall require GFL’s prior written approval.
  3. License to the Source Code (Publicly Available). Subject to the terms and conditions of this Agreement, Licensor hereby grants to GFL and its Affiliates a perpetual, worldwide, royalty-free, non-exclusive, non-transferable (except as set forth in Section 15.8), irrevocable, license during the Term, to use, reproduce, perform (publicly or otherwise), display (publicly or otherwise), publish, sublicense (at an unlimited number of levels), modify, adapt, create derivative works of, promote, distribute, exploit, and otherwise utilize the Source Code for and in connection with publishing, distributing, and promoting the Source Code.
  4. License to the Source Code (Not Publicly Available). Subject to the terms and conditions of this Agreement, Licensor hereby grants to GFL and its Affiliates a perpetual, worldwide, royalty-free, non-exclusive, non-transferable (except as set forth in Section 15.8), irrevocable, license during the Term, to use, reproduce, internally display, sublicense (at an unlimited number of levels), modify, adapt, create derivative works of, promote, exploit, and otherwise utilize the Source Code.
Thanks Attribution. GFL will include GFL’s name, “Games For Love”, and include a GFL Trademark in accordance with GFL’s reasonable written instructions wherever Licensor thanks its partners and other Persons in connection with the Game or, if Licensor maintains a general type of location (e.g., a web page), which is not specific to any Licensor game, attributing thanks to its Partners and other Persons, then in such location. Licensor will promptly, without undue delay, remove GFL’s name and Trademark from such location(s) upon Licensor’s request.
Representations and Warranties.
1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
  1. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation or organization;
  2. it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
  3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate and/or organizational action of such Party; and
  4. when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
2. Additional Licensor Representations and Warranties. Licensor represents and warrants to GFL that:
  1. it will perform all Services in a professional and workmanlike manner in accordance with industry standards similar services, using personnel with the requisite skill, experience, and qualifications, and shall devote adequate resources to meet its obligations under this Agreement;
  2. it is in compliance, will perform all Services in compliance, and will ensure that the Game (excluding the GFL Materials) complies with all applicable Laws, including all applicable federal and state privacy and data protection Laws;
  3. Licensor owns or controls all necessary rights or licenses in and to the Game, Licensor Tools and Technology, Licensed Property, Software, and Licensor Trademarks, and GFL’s and its Affiliates’ use thereof in accordance with the terms and conditions of this Agreement will not violate any Intellectual Property Rights or other rights of any other Person;
  4. except for GFL Materials, the Game, Software, Licensed Property, Software, Licensor Tools and Technology, and Specifications, will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any other Person, and Licensor has obtained any and all permissions and clearances to the Game, Software, Licensed Property, Licensor Tools and Technology, Specifications, and Deliverables, including the Game engine and third-party tools used to develop the Game and contained in the Software for their authorized use as contemplated herein, and GFL’s and its Affiliates’ exploitation of the Game in accordance with this Agreement will not violate any such permissions and clearances;
  5. Licensor shall be responsible for and shall pay all required compensation to third parties (excluding taxes any on GFL’s revenues) relating to use of the Game, Software, Specifications, and Deliverables, including the Game engine and third-party tools, as contemplated hereunder, except to the extent that such compensation obligations arise from use of the GFL Materials;
  6. when delivered by Licensor, and used by GFL or any third party authorized by GFL, the Game, Software, Specifications, and Deliverables, excluding GFL Materials and Licensed Property, will not contain any Harmful Code and Content;
  7. all Deliverables will be in conformity with this Agreement and will meet or exceed the Specifications for the Term of this Agreement and Licensor will, at no charge to GFL, promptly correct any programming defects in the Game and, where applicable, Source Code;
  8. the Game contains all necessary credits to third parties and such credits are complete and accurate; and
  9. Licensor will not collect any information regarding Game users.
3. Additional GFL Representations and Warranties. GFL represents and warrants to Licensor that it has all necessary rights or licenses in and to the GFL Materials and Licensor’s use of the GFL Materials, as allowed herein will not infringe upon the rights of any other Person.
Indemnification and Insurance.
1. Licensor Indemnification. Licensor shall defend, indemnify, and hold harmless GFL and GFL’s Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “GFL Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers that are incurred by a GFL Indemnitee (“Losses”) arising out of or resulting from any third-party (other than an Affiliate of a GFL Indemnitee) claim, suit, action, or proceeding (each, an “Action”) that arises out of or results from:
  1. Licensor’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
  2. The Deliverables, Game, or Licensor Tools and Technology, including any product liability, personal injury, or property damage or the infringement, misappropriation, or other violation of any third-party Intellectual Property Rights, except to the extent that such Action is directly attributable to (i) modification of the Deliverables, Game, or Licensor Tools and Technology by anyone other than Licensor, (ii) Licensor’s compliance with GFL’s unique specification or instructions, and/or (iii) Licensor’s use of any unmodified GFL Materials as supplied by GFL; or
  3. The gross negligence or willful misconduct of Licensor or any employee, agent, or independent contractor of Licensor in connection with performing Services under this Agreement.
2. GFL Indemnification. GFL shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, successors, and assigns (each, a “Licensor Indemnitee”) from and against any Losses incurred by any Licensor Indemnitee in connection with any Action by a third party (other than an Affiliate of a Licensor Indemnitee) to the extent such Action arises out of or relates to GFL’s material breach of any of its representations or warranties herein; provided that the provisions of this Section 11.2 will not apply to the extent any such Losses are covered by Licensor’s indemnification obligations under Section 11.1.
3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to indemnification under Section 11.1 or 11.2, as applicable. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. However, Licensor may not settle or compromise such Action without the written consent of GFL if any settlement or compromise requires GFL to part with any right (except to the extent regarding GFL’s use or rights to the Deliverables, Game, or Licensor Tools and Technology) or make any payment not indemnified or subjects GFL to any injunction. The Indemnitee’s failure to perform any obligations under this Section 11 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee shall cooperate fully with and assist the Indemnitor in its defense against such Action in all reasonable respects. The Indemnitor shall keep the Indemnitee fully apprised at all times as to the status of the defense. The Indemnitee may observe the proceedings at its own cost and expense with counsel of its own choosing. Notwithstanding the foregoing, the Indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section 11.
4. Infringement Remedy. If any aspect of any version of the Deliverables, Game (excluding GFL Materials), or Licensor Tools and Technology becomes, or, in GFL’s opinion, is likely to become, the object of any infringement or misappropriation claim or suit, including claims arising from Licensor’s, its Affiliates’, or its sublicensee’s use of any third-party tools or materials in the Game, Licensor will procure for GFL, at Licensor’s sole expense, the right to use such items in the Game as contemplated hereunder, or will replace or modify the Game accordingly to make it non-infringing while providing fully equivalent features and functionality.
5. Insurance. At all times during the Term of this Agreement and for two (2) years after the completion of Live Services, Licensor shall procure and maintain, at its sole cost and expense, commercial general liability insurance, cyber insurance, and errors and omissions insurance with limits no less than $2,000,000 per occurrence and $5,000,000 in the aggregate, including bodily injury and property damage and products and completed operations and advertising liability, which policies will include contractual liability coverage insuring the activities of Licensor under this Agreement. All policies required pursuant to this Section 11.5 must:
  1. be issued by insurance companies with a Best’s Rating of no less than A-VII;
  2. provide that such insurance carriers give GFL at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage; provided that, prior to such cancellation, Licensor shall have new insurance policies in place that meet the requirements of this Section 11.5;
  3. waive any right of subrogation;
  4. provide that such insurance is primary and any similar insurance in the name of or for the benefit of GFL is excess and non-contributory; and
  5. solely with respect to the commercial general liability insurance policy, name GFL, including, in each case, all successors and assigns, as additional insureds.

Licensor shall provide GFL with copies of the certificates of insurance and policy endorsements required by this Section 11.5 on GFL’s written request and shall not do anything to invalidate such insurance.

Limitation of Liability. EXCEPT WITH RESPECT TO: (A) EACH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS AGREEMENT; (B) DAMAGES ARISING FROM THE GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF A PARTY OR ITS AFFILIATES OR ANY OF ITS OR THEIR PERSONNEL; (C) LICENSOR’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING HARMFUL CODE AND CONTENT; AND (D) DAMAGES THAT CANNOT BE LIMITED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, COSTS, EXPENSES, LOSSES, LOST PROFITS OR OPPORTUNITY COSTS. EXCEPT WITH RESPECT TO: (I) GFL’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS AGREEMENT; (II) DAMAGES ARISING FROM THE GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF GFL OR ITS AFFILIATES OR ANY OF ITS OR THEIR PERSONNEL; AND (III) DAMAGES THAT CANNOT BE LIMITED BY APPLICABLE LAW, IN NO EVENT SHALL GFL’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING FOR ANY CLAIM AND/OR SERIES OF CLAIMS, WHETHER RELATED OR UNRELATED) WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), LAW, EQUITY OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS (USD $100.00).
Force Majeure. In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any of the following circumstances beyond such Party’s reasonable control: (a) act of God; (b) flood, fire, earthquake, or explosion; (c) epidemic or pandemic; (d) war, invasion, hostility (whether war is declared or not), terrorist threat or act, riot, or other civil unrest; (e) government order or law; (f) action, embargo, or blockade in effect on or after the Effective Date; (g) action by any governmental authority; (h) national or regional emergency; (i) strike, labor stoppage or slowdown, or other industrial disturbance; and (j) shortage of adequate power; in each case, provided that: (i) the affected Party provides prompt notice to the other Party; and (ii) the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such occurrence. If the delay continues substantially uninterrupted for a period of more than 30 days, the other Party may terminate this Agreement by giving 10 days’ prior written notice to the delaying Party; provided this Agreement will not terminate if the delaying Party substantially performs the material obligations which have been delayed within such 10 day period.
Termination.
1. Termination.
  1. Termination by GFL for Convenience. GFL may, upon notice to Licensor, terminate this Agreement at any time without cause and without incurring any obligation, liability, or penalty by written notice to Licensor.
  2. Termination for Breach. The Agreement may be terminated by the non-breaching Party upon a material breach of this Agreement: (a) immediately upon written notice by the non-breaching Party if the breach is not capable of being cured; or (b) if the breach is capable of being cured, is not cured within thirty (30) days after receipt by the breaching Party of written notice describing the breach in reasonable detail.
  3. Either Party may terminate this Agreement by written notice to the other Party if the other Party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
2. Effect of Expiration or Termination. On the expiration or termination of this Agreement:
  1. Licensor shall (i) permanently erase the GFL Materials and GFL’s Confidential Information from its computer systems; and (iii) certify in writing to GFL that it has complied with the requirements of this Section 14.2(a), in each case to the extent such materials are not required by Licensor to perform its surviving obligations under this Agreement.
  2. GFL shall (i) return to Licensor all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Licensor’s Confidential Information; and (ii) permanently erase Licensor’s Confidential Information from its computer systems, in each case to the extent that such Confidential Information is not required by GFL for full use of the Services and Game pursuant to this Agreement.
  3. All licenses granted to Licensor in the GFL Materials shall immediately and automatically terminate. No expiration or termination of this Agreement will affect GFL’s rights in or licenses to the Game. Licensor acknowledges that in the event of a termination of this Agreement, and notwithstanding anything to the contrary in this Agreement, the license for use of Licensor Tools and Technology and Licensed Property in the Game will survive the termination of this Agreement.
3. Surviving Rights. Any right or obligation of the Parties in this Agreement that, by its express terms or by its nature and context, is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration including the rights and obligations set forth in Sections 1, 6, 7, 8.2, 11, 12, 14.2, 14.3, and 15.
Miscellaneous.
1. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
2. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
3. Further Assurances. Each Party shall, upon the request of the other Party, execute all such further documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
4. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
5. Public Announcements. Neither Party will use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the other Party’s prior written consent or as otherwise permitted by this Agreement.
6. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving notice from time to time in accordance with this Section 15.6). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a notice is effective only: (a) upon receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section 15.6.
7. Entire Agreement. This Agreement, together with all Schedules and Exhibits hereto and any other documents incorporated herein by reference (if any), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the terms and provisions in the body of this Agreement and those of any Schedule or Exhibit or other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Schedules and Exhibits; (b) second, the Schedules and Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
8. Assignment. Licensor may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without GFL’s prior written consent, which consent GFL may not unreasonably withhold. No delegation or other transfer will relieve Licensor of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. GFL may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensor’s consent. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
9. Expenses. Except as otherwise expressly provided herein, each Party is responsible for all of its own costs and expenses in performing its obligations under this Agreement and neither Party is obligated to reimburse the other Party for any costs or expenses a Party incurs in performing such obligations.
10. Export Regulation. GFL shall not itself, and shall not knowingly permit any third parties to, export, re-export, or release, directly or indirectly, the Game to any country or jurisdiction: (a) in which the export, re-export, or release of any Software is prohibited by applicable Law; and (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
11. No Third-Party Beneficiaries. Except with respect to Indemnitees’ rights to indemnification and defense as provided in this Agreement, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by either Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent permitted under applicable Law.
14. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted exclusively in the federal of the United States located in the city of Seattle or the courts of the State of Washington located in Snohomish County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15. Counterparts. This Agreement may be executed in counterparts and by electronic signatures, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, electronic signature platform, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[signature page follows]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

[LICENSOR NAME]

By_________________

Name:

Title:

Games For Love

By_________________

Name:

Title:

SCHEDULE A

SPECIFICATIONS

Game Title:

[GAME TITLE]

Third Party Licensor(s):

[THIRD PARTY LICENSOR(S) NAME(S)]

[Licensed Property:

[LICENSED PROPERTY]]

GFL Materials:

[DESCRIPTION OF GFL MATERIALS]

Platform(s):

[PLATFORM NAME]

Languages:

[LANGUAGES]

Game Rating:

[APPLICABLE ESRB RATING THAT THE GAME MUST OBTAIN]

Detailed Game Description:

[GAME DESCRIPTION]

SCHEDULE B

LIVE SERVICES

Licensor will promptly, without undue delay, provide patches, bug fixes, performance optimizations to the client or server software, content updates, feature updates, and maintenance of the Game (collectively, “Updates”) to GFL upon Licensor providing such Updates or making such Updates available to its customers. Licensor will provide Updates in accordance with Section 3.1. If Licensor is obligated under the main body of this Agreement to provide Source Code, Licensor will also provide an updated version of the Source Code (“Updated Source Code”). All such Updates and Updated Source Code are subject to the terms of the main body of the Agreement.

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