HUMBLE LICENSING AGREEMENT

Transcription

1 HUMBLE LICENSING AGREEMENT Version Date: December 1, 2016 THIS HUMBLE LICENSING AGREEMENT ( Agreement ) constitutes a valid and binding agreement by and between Humble Bundle, Inc. ( Humble Bundle ), a Delaware corporation, whose principal address is 201 Post Street, Floor 11, San Francisco, CA 94108, USA, and the person or company set forth in the Registration Account (defined below) for the Humble Widget, Humble Store, or Humble Crowdfunding Fulfillment Service (the Licensor ). Licensor acknowledges that by clicking on the I Accept or similar button at the bottom of this Agreement, Licensor is: (i) representing, to the extent Licensor is a company, that the individual accepting this Agreement is an authorized representative of Licensor, with the power and authority to enter this Agreement on Licensor s behalf; and (ii) agreeing to be bound by the terms of this Agreement. If Licensor does not agree to the terms and conditions of this Agreement, please click I Decline. In consideration of the promises and conditions set forth in this Agreement, the parties agree as follows: 1. DEFINITIONS Humble Widget means the application programming interface (API) developed and owned by Humble Bundle for purpose of selling Products on Licensor s website in accordance with this Agreement Humble Store means the marketplace on Humble Bundle s Website where Humble Bundle sells and distributes Products on a fixed-price basis (and not in a pay-what-you-want bundle with other software) Humble Crowdfunding Fulfillment Service means the distribution of crowdfunding campaign reward Products via Humble Bundle s Website and coordinated by Humble Bundle on a complimentary basis Product means any digital product identified in Licensor s Registration Account or via written authorization ( sufficient), including, without limitation, software, games, music, movies, and ebooks Registration Account means the user account opened by Licensor with Humble Bundle authorizing Licensor to distribute certain Licensor Products Customer means any third-party end user who purchases the Products from Humble Bundle where such purchase originated from the Humble Widget or the Humble Store Backer means any third-party end user who is designated by Licensor to receive Products from Humble Bundle through the Humble Crowdfunding Fulfillment Service Territory shall be worldwide Website means the website available at the URL or any sub-page of such URL to be determined at Humble Bundle s discretion. 2. LICENSE LICENSOR GRANT. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Humble Bundle during the Term (as defined in Section 8.1) a non-exclusive, non-transferable (except as permitted under clause (iii) of this Section 2.1 and Section 9) license, to the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient), to: (i), use, sell, and offer to sell the Products to Customers within the Territory through the Humble Widget; (ii) use, sell, Page 1 of 6

2 and offer to sell and distribute one or more Products to Customers within the Territory through the Humble Store; and/or (iv) use, sell, and offer to sell and distribute one or more Products to Backers within the Territory through the Humble Crowdfunding Fulfillment Service. Licensor also grants to Humble Bundle the right and license to: (a) host, reproduce, display, make available, and transmit a master compiled code copy of the Products, and any updates or add-ons thereto, to Customers and Backers, as applicable; (b) use Licensor s trade names, Product names, and related trademarks, service marks, and logos in connection with the marketing, promotion, and distribution of the Products; and (c) use all pictorial, graphic, audio, and audio visual works, including icons, screens, and characters related to the Products in connection with the marketing, promotion, and distribution of the Products TESTING/PROMOTIONAL KEYS. To the extent that Licensor has elected to authorize Humble Bundle to distribute a Licensor Product via the Humble Widget, Humble Store, or Humble Crowdfunding Fulfillment Service, Licensor also grants HB the right to access and/or distribute a reasonable number of copies of such Licensor Product on a no-fee/royalty-free basis solely for good faith QA, testing, and promotional purposes HUMBLE BUNDLE GRANT. Subject to the terms and conditions of this Agreement, to the extent that Licensor has elected though the Registration Account or via written authorization ( sufficient) to use the Humble Widget, Humble Bundle hereby grants to Licensor during the Term a non-exclusive, nontransferable (except as permitted under Section 9) license to use, display, reproduce, and incorporate the Humble Widget into the Licensor s website, including any subpages therein, throughout the Territory OWNERSHIP OF HUMBLE WIDGET. To the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient) to use the Humble Widget, as between Humble Bundle and Licensor, Humble Bundle owns all right, title, and interest in and to the Humble Widget, including, without limitation, all intellectual property rights therein and thereto. Licensor will not assert any ownership interest or ownership rights in the Humble Widget or any information collected directly or indirectly through the Humble Widget. Licensor shall not hold itself out to the public or any third party as the owner of the Humble Widget RESERVATION OF RIGHTS; RESTRICTIONS. Each party hereby reserves all other rights to its respective intellectual property not otherwise granted in this Section 2. Notwithstanding anything to the contrary, to the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient) to use the Humble Widget, Licensor may not: (i) remove any proprietary notices from any copy of the Humble Widget; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Humble Widget; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Humble Widget; or (iv) use the Humble Widget to, or in any way that would, violate any applicable law, regulation or ordinance. 3. RESPONSIBILITIES PRODUCT PROMOTION AND DELIVERY. Humble Bundle will use commercially reasonable efforts to: (i) sell the Products via the Humble Widget and enable the Products to be purchased and downloaded from Humble Bundle's servers to the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient) to use the Humble Widget; (ii) display and make available for distribution Products designated by Licensor in the Humble Store beginning on the date selected by Licensor for each such Product to the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient) to distribute such Products through the Humble Store; (iii) distribute Products via the Humble Crowdfunding Fulfillment Service and enable the products to be downloaded by Backers from Humble Bundle s servers to the extent that Licensor has elected through the Registration Account or via written authorization ( sufficient) to use the Humble Crowdfunding Fulfillment Service; and (iv) within a reasonable period of time following Humble Bundle's receipt from Licensor of any Product maintenance release, bug-fix, patch, or version update, make the same available Page 2 of 6

3 to Customers and Backers, as applicable, for electronic or digital download through its servers. Notwithstanding anything herein to the contrary, Humble Bundle makes no promise or guaranty of any kind that a Product will be made available for distribution via the Humble Widget, the Humble Store, or the Humble Crowdfunding Fulfillment Service CUSTOMER AND BACKER SUPPORT. Humble Bundle will be responsible for the technical implementation of the Humble Widget, the Humble Store, and the Humble Crowdfunding Fulfillment Service, as applicable, and except for Licensor s support obligations under this Agreement the day-to-day operations, Customer and Backer support, as applicable, and the processing and handling of sales originating from the Humble Widget, and the Humble Store, as applicable. Licensor will be responsible for all Product support, including, without limitation, technical support and trouble-shooting, required by Customers or Backers as part of any end user license or warranty. Licensor also will be responsible for addressing and resolving other Customer and Backer support issues concerning the Products and any related technical problems, as well as other Customer and Backer feedback that Licensor receives either on its own or forwarded from Humble Bundle. Licensor shall assist Humble Bundle with Customer and Backer support and communication wherever reasonably possible END USER LICENSE AGREEMENTS. All end user license agreements to be distributed with the Products shall be provided to Humble Bundle by Licensor as part of Licensor s build of the Products that is delivered to Humble Bundle. Licensor will be responsible for ensuring that such end user license agreements are properly integrated and configured so as to require end user acceptance of its terms as part of the end user installation of the Products. If no such end user license agreement is provided, Humble Bundle may distribute the Products without any end user license agreement PRIVACY POLICY. Licensor shall publish and maintain a privacy policy that prominently and clearly discloses the nature and scope of its practices regarding the collection, use, and disclosure of end user information. At all times during the term of this Agreement, Licensor shall ensure that its relationship with Humble Bundle, as described herein, is in compliance with such privacy policy. If Licensor is an individual, Licensor consents to the use by Humble Bundle of Licensor s personal information for the purpose of performing hereunder and for any other purposes described in Humble Bundle s privacy policy posted on the Website HUMBLE WIDGET. To the extent that Licensor has elected to use the Humble Widget, Humble Bundle will provide Licensor with the Humble Widget, including any related tags, code, or documentation necessary to embed or otherwise incorporate the Humble Widget into the Licensor website. Except for the limited technical integration support described above, Humble Bundle shall have no obligation to provide technical or support services to Licensor or the users of Licensor s website DELIVERY OF PRODUCTS. Licensor shall deliver the Products to Humble Bundle electronically in the form of Licensor s choosing. Examples include, without limitation: Steam or other platform keys and/or DRMfree compiled master files. Humble Bundle is responsible for delivering such Products to Customers and Backers, as applicable PROMOTION AND MARKETING. Each of the parties may promote and market the Products in any lawful manner it chooses, provided that such party shall remain responsible for, and shall at all times abide by and follow, those trademark, service mark, trade name, and logo usage guidelines established in writing from time to time by the other party for the use of the other party s proprietary trademarks, service marks, trade names, and logos. In addition to the foregoing, in the event that Licensor wishes to make any type of press release or public announcement regarding the Humble Widget, the Humble Store, the Humble Crowdfunding Fulfillment Service, or Humble Bundle, Licensor shall obtain Humble Bundle s prior written consent regarding any such press release or public announcement. Page 3 of 6

4 4. REPRESENTATIONS AND WARRANTIES BY LICENSOR. Licensor represents and warrants to Humble Bundle that: (i) the Products are and will remain reasonably free from defects except in the case of prerelease, alpha, or beta sale; (ii) the Licensor and the Products do and shall comply with all law, rules, and regulations throughout the Territory, and Licensor has obtained all permits, licenses, and authorizations required for such distribution; (iii) Licensor has all the necessary rights, title, and interest in and to the Products to grant Humble Bundle the rights and licenses contained in this Agreement; (iv) the Products do not and shall not infringe any copyright, patent, trade secret, or any other intellectual property, proprietary, or other rights of third parties, including rights of privacy and publicity; (v) the Products do not contain any malicious or harmful code that would inhibit the Customer s or Backer s use of the Products or the personal computer system on which they may be installed; and (vi) Licensor will use Customer s and Backer s information in compliance with Humble Bundle s publicly displayed privacy policy, Licensor s publicly displayed privacy policy, and all applicable laws, rules, and regulations, including, but not limited to, the CAN Spam Act of DISCLAIMER OF WARRANTIES. HUMBLE BUNDLE PROVIDES THE HUMBLE WIDGET, ANY HUMBLE BUNDLE STOREFRONT, AND THE HUMBLE CROWDFUNDING FULFILLMENT SERVICE, INCLUDING WITHOUT LIMITATION, THE HUMBLE STORE, AND THE WEBSITE, TO LICENSOR ON AN AS IS AND AS AVAILABLE BASIS. HUMBLE BUNDLE MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES AS TO THE HUMBLE WIDGET, THE HUMBLE STORE, THE HUMBLE CROWDFUNDING FULFILLMENT SERVICE, THE WEBSITE, AND ANY OTHER HUMBLE BUNDLE STOREFRONT, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED BY HUMBLE BUNDLE TO LICENSOR HEREUNDER, AND TO THE FULLEST EXTENT PERMITTED BY LAW, HUMBLE BUNDLE HEREBY DISCLAIMS ALL WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, HUMBLE BUNDLE DOES NOT WARRANT THAT THE HUMBLE WIDGET, THE HUMBLE STORE, THE HUMBLE CROWDFUNDING FULFILLMENT SERVICE, THE WEBSITE, OR ANY OTHER HUMBLE BUNDLE STOREFRONT WILL BE RELIABLE OR CORRECT; WILL MEET LICENSOR OR ITS USERS REQUIREMENTS; WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to Licensor. 5. FEES. PRODUCT FEE AND TERMS THROUGH THE HUMBLE WIDGET. In the event that Licensor has elected to use the Humble Widget, within thirty (30) days after the end of each calendar month, Humble Bundle shall pay to Licensor ninetyfive percent (95%) of Adjusted Gross Revenue (as defined below in Section 5.4) actually received by Humble Bundle from Humble Bundle s sales of the Products through the Humble Widget during the previous calendar month THROUGH THE HUMBLE STORE. In the event that Licensor has elected to distribute one or more Products through the Humble Store, within thirty (30) days after the end of each calendar month, Humble Bundle shall pay to Licensor seventy-five percent (75%) of Adjusted Gross Revenue received through the Humble Store during the previous calendar month THROUGH THE HUMBLE CROWDFUNDING FULFILLMENT SERVICE. Humble Bundle distributes Products via the Humble Crowdfunding Fulfillment Service on a complimentary basis PAYMENTS GENERALLY. All payments shall be in U.S. Dollars. Licensor s payment information is specified in the Registration Account or in an authorized writing ( sufficient). Notwithstanding anything to the contrary herein, if Licensor s earned balance is less than Two Hundred Fifty U.S. Dollars (US$250), no payment shall be made until the amounts owed by Humble Bundle exceed such amount. Adjusted Gross Page 4 of 6

5 Revenue shall be defined as total revenue Humble Bundle actually receives from Humble Bundle s sales of the Products minus deductions for: (i) returns, refunds, chargebacks, fees incurred by Humble Bundle for chargebacks and wire transfers, (ii) taxes associated with the sale of the Products, and (iii) any and all payment-processing fees (collectively, Deductions ). To the extent that the payment calculation results in a negative amount, that negative amount will be carried forward and deducted from any future amounts otherwise payable by Humble Bundle to Licensor under this Agreement or any other agreement between the parties PRICING. The price of a Product for sale through the Humble Widget shall be determined by the Licensor through the Registration Account or otherwise in writing ( sufficient). If a price change is desired, Licensor will give Humble Bundle at least seven 7 days notice to execute a price change request. 6. INDEMNITY. Licensor agrees to indemnify, defend, and hold Humble Bundle and its officers, employees, and agents harmless from and against any and all losses, liabilities, expenses, judgments, settlements reasonably approved by the indemnified party, costs, or damages (including attorneys fees) resulting from claims asserted by third parties arising out of or in connection with this Agreement, to the extent that they were caused by the actual or alleged breach (by act or omission) of Licensor s representations, warranties, or obligations set forth in this Agreement. This obligation shall survive the termination of this Agreement. 7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HUMBLE BUNDLE, ITS AFFILIATES, OTHER LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE RELATED PARTIES ) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE HUMBLE WIDGET, THE HUMBLE STORE, THE HUMBLE CROWDFUNDING FULFILLMENT SERVICES, THE WEBSITE, OR ANY HUMBLE BUNDLE STOREFRONT, EVEN IF HUMBLE BUNDLE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF HUMBLE BUNDLE OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT HUMBLE BUNDLE PAID TO LICENSOR DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Humble Bundle and the Related Parties shall be limited to the fullest extent permitted by law. 8. TERM AND TERMINATION TERM. This Agreement shall commence on the date Licensor accepts this Agreement and shall continue in full force and effect until either party terminates this Agreement as set forth in Section 8.2 below (the Term ) TERMINATION OF AGREEMENT; SUSPENSION AND TERMINATION OF DISTRIBUTION. Either party may terminate this Agreement for any reason or no reason on seven (7) days prior written notice to the other party. In addition, without terminating this Agreement, Licensor may (for any reason or no reason) terminate the right of Humble Bundle to distribute or sell a particular Product through the Humble Store or the Humble Widget on seven (7) days prior written notice. Additionally, Humble Bundle may (for any reason or no reason) cease the distribution of a particular Product through the Humble Store or the Humble Widget at any time, upon written notice to Licensor. The parties acknowledge and agree that this Agreement includes a "license of intellectual property" and is and shall be subject to Sections 365(n) of the United States Bankruptcy Code, and that each party shall be entitled to all rights and benefits of such sections in accordance with its terms and conditions SURVIVAL. All financial obligations of the parties that accrue prior to the expiration or earlier termination of this Agreement, together with Sections 1, 2.4, 6, 7, 8.3 and 9, shall survive expiration or termination of Page 5 of 6

6 this Agreement and remain enforceable. In addition, following expiration or termination of this Agreement, Humble Bundle s rights and licenses granted hereunder shall survive solely for the purpose of distributing Products to Customers, Backers, or other persons who, prior to the Agreement s expiration or termination, purchased Products or were otherwise permissibly distributed Products. At expiration or termination of this Agreement, Licensor s license to the Humble Widget will immediately terminate, and Licensor shall take steps to promptly remove the Humble Widget from its website. 9. MISCELLANEOUS. The relationship of the parties under this Agreement is that of independent contractors, and neither party will have the right to act as the agent of the other party. This Agreement shall be construed in accordance with the laws of the State of California, without giving effect to any choice of law principles. The parties expressly understand and agree that any dispute arising under this Agreement will be brought exclusively in the state or federal courts within the County of San Francisco, California and the parties hereby consent to the exclusive personal jurisdiction and venue therein. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any term of this Agreement may be amended or waived only with the written consent of Humble Bundle and Licensor. or any form of written communication (electronic or otherwise) is sufficient to satisfy any notice or written agreement required under this Agreement. The address for delivering notice to Humble Bundle is <contracts@humblebundle.com> and to Licensor is the address provided to Humble Bundle via the Registration Account, or to such other address as a party may designate by written notice. Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. Licensor may not assign this Agreement without the written consent of Humble Bundle. Humble Bundle may assign this Agreement upon written notice to Licensor. Any assignment made in contravention of the above shall be void and of no effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as to best reflect the original intent of the parties. This Agreement constitutes the sole entire agreement between the parties pertaining to the subject matter hereof, and supersedes all oral negotiations and prior writings with respect to the subject matter within this Agreement, including, without limitation, prior versions of this Agreement that were accepted by Licensor. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney fees and all other costs incurred in that action or proceeding, in addition to any other relief to which they may be entitled. LICENSOR EXPRESSLY ACKNOWLEDGES THAT LICENSOR HAS READ THIS AGREEMENT AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS, AND CONDITIONS SET FORTH HEREIN. BY CLICKING I ACCEPT, LICENSOR EXPRESSLY CONSENTS TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANTS TO HUMBLE BUNDLE THE RIGHTS SET FORTH HEREIN. Page 6 of 6