ATTENTION, NOTICE TO USER: PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS CONTRIBUTION AGREEMENT.THIS IS AN AGREEMENT GOVERNING YOUR RELATIONSHIP WITH GAIJIN ENTERTAINMENT LLP, AN ENGLISH COMPANY (“GAIJIN”), IN CONNECTION WITH THE CONTENT GENERATED BY YOU BASED ON GAIJIN’S GAME AND ASSIGNED TO GAIJIN UNDER THIS AGREEMENT (“AGREEMENT”). BY PUTTING A CHECKMARK AT THE “I ACCEPT THE AGREEMENT” BUTTON AND PRESSING “NEXT” AND/OR BY SUBMITTING USER GENERATED CONTENT TO GAIJIN THROUGH THE WEBSITE HTTP://LIVE.WARTHUNDER.COM OR OTHERWISE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS CONTRIBUTION AGREEMENT AND AGREE THAT THIS CONTRIBUTION AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS CONTRIBUTION AGREEMENT, CLICK THE “CANCEL” BUTTON AND AS WELL AS DO NOT SUBMIT USER GENERATED CONTENT TO GAIJIN AND YOU WILL NOT BECOME A PARTY TO THIS CONTRIBUTION AGREEMENT. This Agreement may be amended by Gaijin at any time. Such amendment of the Agreement shall be effective upon posting on the website http://live.warthunder.com (Gaijin’s Site)or your receipt of an email message stating the same from Gaijin, provided that failure to regularly visit Gaijin’s Site or to maintain accurate and current contact information (including, email address) shall not relieve you from any obligation under this Agreement. Please check Gaijin Site regularly and maintain proper settings for your electronic mailbox (e.g. “spam filters”) to ensure that you are aware of all terms governing this Agreement. This Contribution Agreement (the “Agreement”) is made and entered as of the date of acceptance of this Agreement by the Gaijin (the “Effective Date”) by and between Gaijin and You (or otherwise referred to hereunder as User), as defined below (“User” and collectively with Gaijin, the “Parties” and each, a “Party”). NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREINAFTER CONTAINED, AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, INTENDING LEGALLY TO BE BOUND HEREBY, AGREE AS FOLLOWS:
1. Certain Definitions
- 1.2. “Adjusted Gross Revenue” shall mean for any applicable quarter all gross revenues, fees or other related consideration actually received by Gaijin in connection with User Generated Content less applicable taxes, VAT, product returns, charge backs, and refunds, as applicable.
- 1.3. “User Generated Content” shall mean any content generated by You through modifications, enhancements, use or operation of the Game or use of Gaijin’s related services, including without limitations, revision, modification, translation, abridgement, condensation, expansion, or any other form in which Game or any portion thereof may be recast, transformed, or adapted as well as any new content generated by You that may be added to the Game (locations, tanks, aircraft, and any other in-game items), and submitted by You to Gaijin through the website http://live.warthunder.com or otherwise.
- 1.4. “You” or “User” means the individual person developing and providing the content based on Gaijin’s game under this Agreement on his or her own behalf; or, an organization on which behalf this Agreement is being entered into, then the person accepting this Agreement represents hereby that such Organization has authorized such person to accept this Agreement on the organization’s behalf.
- 1.5. “Gaijin Property” means any part of the Game (title, computer code, themes, objects, in-game items, locations, concepts, artworks, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, etc.), Content Development Kit and any related documentation made available by Gaijin to You.
- 3.1. If and when Gaijin chooses to include User Generated Content into the Game, in consideration of payments under Section 6, you hereby assign to Gaijin free and clear of any rights and claims by you or any third party, the entire right, title and interest in the User Generated Content (as such term is defined herein) and all intellectual property rights related thereto, provided that you shall have a non-exclusive right to use the User Generated Content in connection with the Game or related Gaijin’s services.
- 3.2. For avoidance of doubt, You hereby agree that Gaijin has a right to freely and without any contribution to you (except as set forth in Section 6) use, operate, copy, distribute, exhibit, bundle, sublicense or sell User Generated Content free and clear of any liens, claims or encumbrances. You also agree that the parties intend to effect hereunder a complete absolute assignment and transfer of all of all Your rights, title and interest in and to the User Generated Content, if any, including any and all legal and beneficial interest therein, in respect of which it is the sole of exclusive holder of intellectual property rights therein, rather than a partial sale or transfer of same to Gaijin, and rather than a license of same to Gaijin; that as a result of and concurrent with said sale, You shall relinquish completely, and Gaijin shall exercise, all right, title, dominion and control over the User Generated Content.
- 3.3. You also agree and acknowledge that nothing in the Agreement shall limit Gaijin from (i) developing software based on or derived from any User Generated Content at any time and solely at its own discretion; and (ii) entering into agreements to develop and distribute such products or software with any third party without any obligations to You except as explicitly stated herein;
- 3.4. Gaijin is not obligated to use, distribute, or continue to distribute copies of any User Generated Content and expressly reserves the right, but not the obligation, to restrict or remove User Generated Content for any reason whatsoever;
- 3.5. You hereby expressly agree that except as otherwise provided herein in Section 5, You are not entitled to any compensation in connection or as result of User Generated Content.
4. Your Warranties; Indemnification; and Limitation of Liability
YOU HEREBY WARRANT THAT:
- ALL INFORMATION PROVIDED BY YOU TO GAIJIN IN CONNECTION WITH THIS AGREEMENT IS TRUE AND ACCURATE;
- YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT;
- YOU SHALL PERFORM ALL OF YOUR OBLIGATIONS UNDER THE AGREEMENT IN ACCORDANCE WITH APPLICABLE LAWS;
- USER GENERATED CONTENT THAT YOU PROVIDED TO GAIJIN AND OTHER USERS OF THE GAME DO NOT:
- INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY;
- CONSTITUTE DEFAMATION, LIBEL OR OBSCENITY;
- RESULT IN ANY CONSUMER FRAUD, PRODUCT LIABILITY, BREACH OF CONTRACT TO WHICH YOU ARE A PARTY OR CAUSE INJURY TO ANY THIRD PARTY;
- PROMOTE VIOLENCE OR CONTAIN HATE SPEECH;
- VIOLATE ANY APPLICABLE LAW, STATUTE, ORDINANCE, OR REGULATIONS;
- CONTAIN ADULT CONTENT OR PROMOTE ILLEGAL ACTIVITIES.
- 4.2. You hereby agree to indemnify and hold harmless Gaijin, its affiliates, officers, directors, agents, and employees, from any expense, loss, claim, damage, fine, penalty or liability, including reasonable fees for attorneys and other professionals, payable under any judgment, verdict, court order or settlement, to the extent resulting from any claim, demand, action, suit, arbitration, or other proceeding initiated by any third party, including the assessment, claim or demand by a governmental agency or entity, arising out of your breach of this Agreement, including without limitation infringement by User Generated Content of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy.
- 4.3. IN NO EVENT SHALL GAIJIN OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION), UNDER ANY THEORY OF LIABILITY, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE CONTENT, GAMES, OR RELATED SERVICES. ANY ACTION BROUGHT AGAINST GAIJIN PERTAINING TO OR IN CONNECTION WITH THIS AGREEMENT MUST BE COMMENCED AND NOTIFIED TO GAIJIN IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW OR LIMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL CIRCUMSTANCES.
- 4.1. YOU HEREBY WARRANT THAT:
5. Ownership. You agree that
- 5.1. All right, title, and interest in and to the Game, Gaijin’s related content, Gaijin’s trademarks, software and materials pursuant to applicable EULA and Terms of Services, and all intellectual property rights are the sole and exclusive property of Gaijin, suppliers and/or their affiliates, as applicable, and shall be solely responsible for any and all claims relating hereto;
- 5.2. No right to disclose any confidential information relating to the Game, copy, duplicate, imitate, emulate, replicate the Game and/or Software (as such term(s) defined in the Terms of Services), in whole or in part is granted hereby, except as expressly provided herein.
- 6.1. If and when Gaijin chooses to include Your User Generated Content into the Game, in consideration for the rights granted herein, Gaijin agrees to pay You (a) a fixed fee in the amount from 6,000 USD to 10,000 USD at Gaijin’s sole discretion – for 3D models of aircraft, tanks, ships; or (b) a fixed fee in the amount from 1,500 USD to 8,000 USD at Gaijin’s sole discretion – for 3D models of cockpits, or (c) a share revenue as provided in Attachment A for the period of six (6) months (“Consideration Period”) from the date of acceptance of User Generated Content (solely at Gaijin’s discretion) (“Share Revenue”) – for other types of User Generated Content.
- 6.2. Payments will be made by Gaijin by wire transfer (you will be responsible for any bank fees associated with the wire transfer) to Your bank account only.
- 6.3. Each party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any governmental authority applicable to its activities in connection with this Agreement. None of the parties is responsible for taxes that may be imposed on the other Parties.
7. Term and Termination
The term of this Agreement (“Term”) shall begin when Gaijin accepts the User Generated Content and shall continue in perpetuity unless otherwise terminated by Gaijin by written notice. Gaijin, without prejudice to any other rights, this Agreement will terminate automatically if You fail to comply with any of the limitations, warranties or other obligations set forth in his Agreement.
- 8.1. This Agreement shall be governed by and construed and enforced in accordance with the laws of England and Wales without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the User Generated Content in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The parties hereto desire to avoid, and settle without litigation, future controversies and/or claims which may arise between them relating to this Agreement and the transactions contemplated hereby and thereby. To that end, any dispute, controversy or claim arising out of the interpretation or application of the terms of this agreement or any breach thereof shall, unless it is settled by direct negotiation, on the written demand of either Party delivered to the other party, be resolved by arbitration. All disputes arising out of or in connection with this Agreement shall be finally settled under and in accordance with the rules of the London Court of International Arbitration in force on the date when the notice of arbitration is submitted in accordance with these Rules by three arbitrators appointed in accordance with the said Rules. The Parties agree that (i) the place of arbitration shall be London, UK, (ii) there will be one arbitrator and (iii) the language to be used in the arbitration proceedings shall be English.
- 8.2. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
- 8.3. This Agreement is the entire agreement between you and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the User Generated Content or to subject matter of this Agreement provided that the Gaijin and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 8.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
ATTACHMENT A TO CONTRIBUTION AGREEMENT
Gaijin will calculate the applicable Share Revenue due to you under the Contribution Agreement as twenty five (25%) percent of the Adjusted Gross Revenue or (at Gaijin’s sole discretion) as a percentage of a flat or other fee actually received by Gaijin (less applicable taxes, VAT, product returns, chargebacks, and refunds) as a result of distribution of your User Generated Content. For avoidance of doubt, in the event Gaijin distributes your User Generated Content as a premium offering to the Game’s users in consideration of the world’s hard currency (e.g. USD, Euro), Gaijin agrees to pay you a certain Revenue Share in accordance with this Agreement and this Attachment A.
In the event Gaijin distributes your User Generated Content as a part of the offering available for in-game currency (all and any in-game currencies) Gaijin will be paying either a Revenue Share (25%) of the cost of your User Generated Content sold in the respective reporting period (expressed in in-game currency) multiplied by the cost of one unit of in-game currency, which is to be determined by Gaijin in respect of each reporting period by taking into account a variety of factors and confidential data, or a flat fee of not less than 500 USD (solely at Gaijin’s discretion).
In the event Gaijin distributes your User Generated Content as a part of the premium offering bundled with some other content (i.e. other User Generated Content of third parties, or some company content) to the Game’s users in consideration of the world’s hard currency (e.g. USD, Euro), Gaijin agrees to pay you a certain part (calculated as portion of your Content divided by total number of content) of Revenue Share (25%) in accordance with this Agreement and this Attachment A. For example and for avoidance of doubt, if you provided User Generated Content (other than 3D models of aircraft, tanks, ships, cockpits) and Gaijin is distributing your User Generated Content (other than 3D models of aircraft, tanks, ships, cockpits) as a part of pack of 5 items (4 of which are made by other parties) for real hard currency, and received $1,000 of total Adjusted Gross Revenues, then your part will be $1,000 * (1 / 5 (portion of content)) *25% (Revenue Share) = $50USD.
Gaijin will remit payment of any consideration to which you maybe entitled to in accordance with Gaijin’s payment procedures in place at the time of the payment. Payment will be made thirty (30) days from the end of the calendar quarter in which the Adjusted Gross Revenue was received. Notwithstanding anything to the contrary herein, no payment is made earlier than one hundred eighty (180) days after the first copy of User Generated Content is distributed. If Consideration due is less than $500 USD, the payments will be moved to the next reporting quarter or until the aggregate consideration will be equal or greater than $500 USD (solely upon Gaijin’s discretion) at which time the consideration shall be paid to You, provided that Gaijin will make the final payment due to you under the Agreement irrespective of the amount of the payment not later than ninety (90) days from the expiration date of the Consideration Period.
Last updated: February 7, 2017