ATTENTION, NOTICE TO USER: PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS CONTRIBUTION AGREEMENT.THIS IS AN AGREEMENT GOVERNING YOUR RELATIONSHIP WITH GAIJIN NETWORK LTD, A CYPRUS 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 the first sale of the User Generated Content to the player (as a separate in-game item, as a part of in-game service or otherwise) 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, Skins 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.
- 1.6. “Skin” means a custom graphical appearance of in-game 3D items (such as aircrafts and other types of in-game items as available) that is visible in the Game by the user who applied the skin and by other users only after activation of the relevant payable service.
- 3.1. If and when Gaijin chooses to include User Generated Content into the Game (as a separate in-game item, as a part of in-game service or otherwise), 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 6, You are not entitled to any compensation in connection or as result of User Generated Content.
- 3.6. To avoid any doubts, Gaijin shall have the right to determine, in its sole discretion, whether, how, when and for how long User Generated Content, whether modified or not, will be available in the Game.
4. Your Warranties; Indemnification; and Limitation of Liability
- 4.1. 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, (c) a share revenue as provided in Attachment A from the date of acceptance of User Generated Content (solely at Gaijin’s discretion) (“Share Revenue”) – for Skins, or (d) 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 after receipt of the invoice by Gaijin. You will be responsible for choosing the payment method that would be accessible and lawful for Gaijin.
- 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
REVENUE SHARING (IN RELATION TO CAMOUFLAGES)
“Camouflage” means the appearance (design) of the in-game 3D object (aircraft or other in-game item) created by the User that becomes visible in the Game by the user who downloaded and applied this Camouflage, and also by other users of the Game only after activating the relevant paid service.
“Your Camouflage” means the Camouflage provided by You to Gaijin by downloading it to www.live.warthunder.com.
“Adjusted Gross Revenue” means revenue earned by Gaijin as a result of the Sale of Your Camouflage, net of applicable taxes, incl. VAT, costs for chargebacks and refunds (if applicable).
“Sale of the Service” means the provision of the paid service to a player, which after being activated allows the user to obtain one Camouflage randomly determined from the several Camouflages included in the kit pre-formed by Gaijin, among which there is Your Camouflage.
Gaijin agrees to pay You a revenue share of 30% (thirty percent) of the Adjusted Gross Revenue divided by the number of Camouflages included in a kit pre-formed by Gaijin for the Sale of the Service (“Your Share”).
The player obtains a “chest” in the Game, which includes three (3) Camouflages created by three (3) different Users, among which there is Your Camouflage. After opening the “chest”, one of the three (3) Camouflage randomly comes up to the player (it does not matter if it's your Camouflage or Camouflage of the other User of those three), which can be activated. For example, the cost of opening a "chest" (the cost of a "key purchase") is equal to 2.5 Gaijin Coins. If no amounts are deducted from the Adjusted Gross Revenue, the cumulative share of all three (3) Users in the revenue sharing after the key purchase will be 0.75 Gaijin Coins, and the share of each of them, including Your Share, will be 0.25 Gaijin Coins.
Sale of Camouflages. If the Player has a legitimate opportunity to sell the Camouflage to other players on the official in-game exchange, then any Gaijin revenue from such sale of Camouflage will completely remain the property of Gaijin and will not be subject to sharing with You.
Payouts. Accounting of Gaijin revenue from each Sale of the Service for the purposes of this Agreement, as well as accounting of Your Share will be implemented in Gaijin Coins (1 Gaijin Coin currently equals 1 US dollar). During the necessary time after the completion of each Sale of the Service, Gaijin implements an accrual of Your Share to your in-game virtual account in Gaijin Coins. You have the right upon invoice, not more than once a month and only within Your current balance of Gaijin Coins to request the transfer of Your Share accrued in Gaijin Coins, in Euro or US dollars, provided that the total balance of Gaijin Coins after the last payment of Your Share in Euro or US dollars is not less than 500 Gaijin Coins. You hereby agree that in some cases Gaijin may not have a real possibility to transfer Your Share in Euro or US dollars, and You thereby agree that in some cases the option of transferring Your Share in Euro or US dollars may be impracticable; You hereby also agree to take all reasonable efforts to ensure that payments can be received by You in Euros or US dollars.
Terms of payment can be amended by unilateral decision of Gaijin, as provided in the preamble of the Agreement. Any amendments of terms and conditions concerning payouts under this Attachment A are not retroactive.
(+300 GC) On January 1 You purchased 300 Gaijin Coins for real money.
(+300 GC) On February 1 you were credited with 300 Gaijin Coins under this Revenue Sharing Program.
(-50 GC) On March 1 you spent 50 Gaijin Coins on in-game purchases.
(+200 GC) On April 1 you were credited with 200 Gaijin Coins under this Revenue Sharing Program.
(-100 GC) On May 1 you spent 100 Gaijin Coins on in-game purchases.
On June 1 You made a request to Gaijin to transfer Your Share in the Euro or US Dollars.
As of June 1 the balance of Your virtual account is 650 Gaijin Coins, of which 500 Gaijin Coins were accrued under this Revenue Sharing Program. Thus, as of June 1 you are entitled to transfer 500 Gaijin Coins in Euro or US Dollars commencing on April 1.
Taxes. If, in accordance with the applicable law, Gaijin is obligated to withhold applicable taxes from any and all amounts payable to You under this Agreement, Gaijin is deemed entitled to withhold such taxes from the amounts due to You and fulfill its obligations to the tax authorities. You are solely and fully responsible for the timely and full payment of applicable taxes from all amounts received from Gaijin under this Agreement.
Contacts. For all issues related to this Agreement, You can contact us at firstname.lastname@example.org.
Last updated: March 16, 2018
Previous versions of the Contribution Agreement:
Contribution Agreement effective until March 16, 2018