HEROCLOUD TERMS OF SERVICES AGREEMENT
IMPORTANT – PLEASE READ THE TERMS OF THIS HEROCLOUD SERVICES AGREEMENT (the “Agreement”) CAREFULLY. This Agreement is a binding, contractual agreement between You, the Developer (“You,” “Your” or “Developer”), and Idea Fabrik Plc. (“Idea Fabrik”), a company Chartered and Governed by the laws of England and Wales having its principal place of business at 19847 Century Blvd., Suite 201, Germantown MD 20874 USA. This Agreement applies solely to Your access to and/or use of the HeroCloud Services (defined in Section 14) pursuant to this Agreement. By clicking the button below labeled “I Accept”, or by accessing or using the HeroCloud Services, You are indicating Your acceptance and agreeing to all of the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement, in which case the terms “You,” “Your” or “Developer” shall refer to such entity and its affiliates.
You hereby agree to the use of electronic communications in order to enter into this Agreement, to create other records and to the electronic delivery of notices, policies and records of transactions between You and Idea Fabrik with respect to the HeroCloud Services and this Agreement. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. The following sets out the terms and conditions you may use this service.
1. REGISTRATION. Prior to receiving access to and/or using the HeroCloud Services, Developer must register and establish an account with Idea Fabrik (“Account”). Developer is required to select a logon ID and password to access such Account (collectively, the “Account Information”) that Developer may not transfer or share with any third party. Developer is solely responsible for any and all use of Developer’s Account, and Developer agrees to immediately notify Idea Fabrik of any unauthorized use of its Account or Account Information. To establish an Account, Developer must be at least eighteen (18) years of age or the applicable age of majority in applicable jurisdiction. Developer represents and warrants that any and all information provided to Idea Fabrik under this Agreement will be true, accurate, current and complete information, and that Developer will maintain and promptly update such information to keep it true, accurate, current and complete throughout the Term of this Agreement.
2. DEVELOPING A GAME.
2.1 License to HeroCloud Services. Subject to the terms and conditions of this Agreement, Idea Fabrik hereby grants to Developer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right to access and use the HeroCloud Services, solely for purposes of developing the Games in accordance with this Agreement.
2.2 Games and Content. Developer is solely responsible for all Games and Developer Content provided to Idea Fabrik pursuant to this Agreement, regardless of whether Developer was the party that created the Game or Developer Content or any component thereof. Developer shall, at its own expense, obtain all third party licenses, consents and/or permissions that may be necessary or appropriate with respect to such Games and Developer Content, including, without limitation, from Co-Developers, to enable each party to exercise its rights and perform its obligations under this Agreement. Developer represents and warrants that any and all Games and Developer Content does not and will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, the laws and regulations governing export control; (c) be defamatory or trade libelous; (d) be pornographic or obscene; (e) violate any laws regarding unfair competition, anti-discrimination or false advertising; (f) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; or (g) otherwise violate Idea Fabrik’s acceptable use policy.
2.3 Taking Your Game to the Public. You decide when your Game is ready. Once, you do, you agree to notify Idea Fabrik and Idea Fabrik will make it available as set forth below. Idea Fabrik will provision sufficient server capacity for your Game using its reasonable commercial judgment.
2.4 Distribution Right. During the Term, Idea Fabrik will be Your exclusive representative to make each Game available, and You hereby grant to Idea Fabrik an exclusive license in and to all Games and Developer Content, to install, use, reproduce, publicly display, publicly perform, transmit, modify, distribute, sell, market, promote and otherwise make available Games to enable Customers to use such Game as an on-line entertainment product on any website compatible with the Idea Fabrik Platform for which you authorize distribution (“Distribution License”). Costs, terms and conditions for websites, billing services, and other options will be displayed on a website available to HeroCloud developers.3. RESTRICTIONS ON DEVELOPER.
3.1 General Usage Restrictions. Developer will not use the HeroCloud Services, any documentation relating thereto, or the Idea Fabrik Brand for any purposes beyond the scope of the rights granted under this Agreement. Except as expressly permitted herein, Developer shall not assign, sublicense, market, sell, lease, rent, convey or otherwise transfer, or pledge as security or otherwise encumber, the rights and licenses granted hereunder with respect to the HeroCloud Services and the Idea Fabrik Brand, except with the prior, unambiguous written consent of Idea Fabrik. Developer shall undertake all measures necessary to ensure that its use of the HeroCloud Services, the documentation relating to the foregoing, and the Idea Fabrik Brand complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the parties, the HeroCloud Services, Games, Developer Content, any related documentation, or the Idea Fabrik Brand, including, without limitation, by means of obtaining any permits, licenses and/or approvals required with respect to export regulations under the Bureau of Export Administration or any other agency or department of the federal government of the United States of America.4. IDEA FABRIK RIGHTS AND OBLIGATIONS.
4.1 Provision of Access by Idea Fabrik. Within a reasonable period of time from the Effective Date, Idea Fabrik will provide Developer with access to the features and functions of the HeroCloud Services, and corresponding documentation describing the features and functions of the HeroCloud Services, as well as any access procedures and protocols
4.2 Responsibility for Hosting. With respect to Section 4.1, subject to the terms of this Agreement, Idea Fabrik shall be responsible for the operation and hosting of the Idea Fabrik Platform, Games and Developer Content on the Idea Fabrik Servers, and the operation of the Server hardware, its operating system and/or its platform software, and any third-party application software associated with, or necessary for, the operation of the Server. Idea Fabrik shall be permitted to enter into arrangements with one or more third parties for the performance of Idea Fabrik’s obligations under this Section 4.2.
4.3 Support. We do not currently provide any support for the Idea Fabrik Platform. You may seek assistance from other developers, however, using our online public forums.
4.4 Right to Suspend Account. Idea Fabrik reserves the right, in its reasonable discretion, to suspend Developer’s use of the HeroCloud Services or the availability of any Game, or any portion thereof, at any time: (a) if necessary in Idea Fabrik’s discretion to protect the security or operation of the HeroCloud Services or Idea Fabrik Platform; or (b) if Developer has breached Section 1, 2.1 or 3, provided Idea Fabrik has notified Developer of the breach and Developer has failed to cure such breach within seven (7) days after receipt of written notice of the same.
5. DEVELOPER RIGHTS AND OBLIGATIONS.
5.1 Promotion. Notwithstanding Idea Fabrik’s rights in Section 2, Developer retains the right to promote the Game(s) and Developer Content, and Developer may, in its sole discretion, grant to Co-Developers similar rights, provided that Developer agrees not to take, nor permit any Co-Developer or Customer to take, any action inconsistent with the license granted to Idea Fabrik in Section 2.2.
5.2 Maintenance and Technical Support. Developer shall be responsible for connecting to the Server and all associated costs. Developer shall be, at its own expense, solely responsible for providing technical support and training to Customers for its Games. Developer shall ensure that all questions from Customers regarding the use or operation of the foregoing are addressed to and answered by Developer. You acknowledge and agree that Idea Fabrik has no obligation under this Agreement to correct any defects or errors in the HeroCloud Services furnished to You under this Agreement, regardless of whether You inform Idea Fabrik of such defects or errors or Idea Fabrik otherwise is, or becomes aware of, such defects or errors. To the extent Idea Fabrik provides You with any updates or upgrades to the Idea Fabrik Platform, such updates and upgrades shall be deemed to constitute part of the Idea Fabrik Platform and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to licenses, use restrictions and ownership of the Idea Fabrik Platform.
5.3 Collaboration. The HeroCloud Services enable You to work with other Developers using the Idea Fabrik Platform (“Co-Developers”) to create and develop Games. You can elect to work with as many Co-Developers as You desire, but we will not be responsible for any arrangements You have with Your Co-Developers. You will be responsible for all aspects of Your relationship with the Co-Developer, including ownership of intellectual property and payment, and we will have no role in, nor any liability for, Your Co-Developer(s) and/or their contributions. Any contribution by a Co-Developer for Your Game or Developer Content will be considered as part of Your Game or Developer Content under this Agreement. You hereby release Idea Fabrik (and its shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute You have or claim to have with one or more Co-Developers or other users of the HeroCloud Services; including, without limitation, any claim that a Co-Developer’s contribution was not owned by the Co-Developer or a payment dispute. Idea Fabrik recognizes that You may be a Developer for some Games and a Co-Developer for other Games; regardless of Your role on a specific Game, You agree to comply with all terms and conditions set forth in this Agreement.
6. FEES; PAYMENT; AUDIT RIGHTS.
6.1 Collections and Running Royalties. Within thirty (30) days following each month after the Game Launch Date, Idea Fabrik will pay to Developer all Revenue collected by Idea Fabrik with respect to such Games, less any fees from third-party billing companies, and then less thirty percent (30%) (the “Developer Revenue”). The thirty percent (30%) retained by Idea Fabrik will be compensation for its services provided hereunder (“Idea Fabrik Revenue”). “Revenue” for a Game shall mean all monies actually received by or credited to Developer from the exploitation of such Game, including without limitation, subscription fees or pay-per-play fees from the electronic distribution of the Game, sums derived from the sale or rental of the Game, less any returns, refunds or credits actually granted by Idea Fabrik to Customers. In combination with the foregoing payments, Idea Fabrik will provide Developer with a report specifying Revenue applicable to such calendar month in accordance with the general categories and report formats specified by Idea Fabrik. No payments aggregating less than two hundred fifty ($250) dollars will be made by Idea Fabrik hereunder; all such payments will be deferred to the next payment period.
6.2 Outside the Idea Fabrik Platform. In the event You make any of Your Games available outside the Idea Fabrik Platform, You must give us ten (10) days written notice, and You agree to pay us thirty percent (30%) of any Revenue paid by end-users by you or by your distributors or agents related to such game for a period of two (2) years from the date such Game is no longer exclusively offered on the Idea Fabrik Platform. Without limiting the foregoing, our Distribution License for such Game shall survive in accordance with Section 12.3.
6.3 Developer Operating Expenses. Developer shall bear all expenses incurred in the performance of its obligations, including, without limitation, its provision of support and maintenance services for the benefit of any Customer.
6.4 Taxes. Idea Fabrik will collect all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Idea Fabrik’s income), fees, duties and charges, and any related penalties and interest, arising from Customer’s purchase of Games and remit such amounts to the applicable taxing authority. Developer will be responsible for the payment of all other applicable taxes arising from the payment of any fees hereunder, the grant of rights hereunder, or the delivery of any related services hereunder, including, without limitation, the HeroCloud Services. Each party will make all payments required hereunder to the other party free and clear of, and without reduction for, any withholding taxes.
7.1 Ownership by Developer. Subject to the rights granted to Idea Fabrik under this Agreement, as between the parties, Developer will own all rights, title, and interests (including all intellectual property rights) in and to the Games and Developer Content (but specifically excluding the Idea Fabrik Platform).
7.2 Ownership by Idea Fabrik. Subject to the limited rights granted to Developer under this Agreement, as between the parties, Idea Fabrik will own all rights, title, and interest (including all intellectual property rights) in and to the Idea Fabrik Platform, Idea Fabrik Brand, Idea Fabrik Confidential Information and the HeroCloud Services (but specifically excluding the Games and Developer Content). Developer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Developer further acknowledges that Idea Fabrik retains the right to use the foregoing for any purpose in Idea Fabrik’s sole discretion.
7.3 Feedback. You acknowledge and agree that any comments, ideas and/or reports provided to Idea Fabrik (collectively, “Feedback”), shall be considered Idea Fabrik’s proprietary and confidential information, and You hereby irrevocably transfer and assign (and agree to cause Your employee(s) to irrevocably transfer and assign) to Idea Fabrik all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that You may have with respect to any such Feedback.8. TRADEMARKS, TRADE NAMES AND IDEA FABRIK BRANDING.
8.1 Branding. Developer shall comply with Idea Fabrik’s trademark and branding guidelines, including, without limitation, all attribution requirements, which guidelines are available at the Idea Fabrik documentation website, in the Game. Subject to the terms and conditions contained in this Agreement, and further subject to any prior licenses or third-party agreements with respect thereto, each party hereby grants to the other party a non-exclusive, non-transferable, non-sublicenseable right and license during the Term (and as otherwise permitted under Section 12.3) to use the other party’s Brand exclusively in connection with any Game, and the limited purposes of exercising its rights and performing its obligations, at all times in strict accordance with this Agreement. Notwithstanding the foregoing, Idea Fabrik reserves the right to have its marks removed from the Developer’s Game(s) at its sole discretion. Each party will retain all right, title and interest in and to its Brand, and all goodwill associated therewith will inure solely to the benefit of such party. Each party will not challenge, or assist others to challenge the other party’s Brand, or attempt to register any trademarks, trade names, service marks or logos confusingly similar to the other party’s Brand.
8.2 Quality Control. Subject to the terms of this Agreement, (a) Developer will present and promote the Games in compliance with all federal, state and local laws, regulations and ordinances; (b) when Developer uses Idea Fabrik Brand in Developer’s advertising and promotional media with respect to the Game, Developer must conspicuously indicate in each such medium that such Idea Fabrik Brand are proprietary to Idea Fabrik, and will submit representative samples of all such media to Idea Fabrik for prior approval; (c) Developer will not disparage or make any unauthorized representations or guarantees about the Idea Fabrik Platform or Idea Fabrik. Idea Fabrik retains the right to reject or approve, on a case by case basis, all use of the Idea Fabrik Brand as contemplated by Section 8.1 and 8.2.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; ESSENTIAL BASIS.
9.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HEROCLOUD SERVICES, IDEA FABRIK BRAND AND ALL OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED BY IDEA FABRIK HEREUNDER ARE PROVIDED “AS IS,” AND IDEA FABRIK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE IDEA FABRIK PLATFORM, HEROCLOUD SERVICES, IDEA FABRIK BRAND AND ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED BY IDEA FABRIK HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, CONDITION, QUIET ENJOYMENT, CAPACITY, PERFORMANCE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IDEA FABRIK DOES NOT WARRANT THAT THE IDEA FABRIK PLATFORM OR HEROCLOUD SERVICES WILL MEET DEVELOPER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
9.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IDEA FABRIK BE LIABLE TO DEVELOPER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, CUSTOMERS, ARISING FROM ANY SOURCE, EVEN IF IDEA FABRIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF IDEA FABRIK TO DEVELOPER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED TOTAL AMOUNT OF THE IDEA FABRIK REVENUE UNDER SECTION 6 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF DAMAGES AND LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.3 Essential Basis of the Agreement. The disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between Developer and Idea Fabrik; and absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
10.1 Indemnification by Idea Fabrik. Idea Fabrik agrees to indemnify, defend and hold harmless Developer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Idea Fabrik Platform or the Idea Fabrik Brand, as applicable, infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Developer promptly notifies Idea Fabrik in writing of the claim, cooperates with Idea Fabrik, and allows Idea Fabrik sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Developer agrees to permit Idea Fabrik, at Idea Fabrik’s sole discretion, to enable it to continue to use the Idea Fabrik Platform or the Idea Fabrik Brand, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Idea Fabrik determines that none of these alternatives is reasonably available, Developer shall, upon written request from Idea Fabrik, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 10.1 shall not apply if the alleged infringement arises, in whole or in part, from (a) modification of the Idea Fabrik Platform or the Idea Fabrik Brand by Developer or any third party, or (b) combination, operation or use of the HeroCloud Services or Idea Fabrik Platform with other software, hardware or technology not provided by Idea Fabrik, if such infringement would have been avoided by use of the HeroCloud Services or Idea Fabrik Platform alone (any of the foregoing circumstances under clauses (a) or (b), a “Developer Indemnity Liability”). IDEA FABRIK’S LIABILITY UNDER THIS SECTION 10.1 SHALL AT ALL TIMES BE SUBJECT TO SECTION 9. THIS SECTION STATES IDEA FABRIK’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10.2 Indemnification by Developer. Developer agrees to hold, harmless, indemnify, and, at Idea Fabrik’s option, defend Idea Fabrik from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from: (a) Developer’s gross negligence or willful misconduct; (b) a Developer Indemnity Liability, and (c) the Games and/or Developer Content (including, but not limited to, any claim by a third party that the Game and/or the developer Content infringes a third party’s intellectual property right), provided that Developer will not settle any third-party claim against Idea Fabrik unless such settlement completely and forever releases Idea Fabrik from all liability with respect to such claim or unless Idea Fabrik consents to such settlement, and further provided that Idea Fabrik will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. Idea Fabrik agrees to provide Developer with prompt written notice of the claim.
11.1 Confidential Information. The “CI” of Idea Fabrik will mean any and all confidential or proprietary information disclosed by Idea Fabrik to Developer during the term of this Agreement and all other information that Developer knew, or reasonably should have known, was confidential or proprietary to Idea Fabrik. For purposes of clarification, the Parties agree that the Idea Fabrik Platform and all documentation relating to the foregoing and the HeroCloud Services shall be deemed Confidential Information of Idea Fabrik.
11.2 Confidentiality Obligations. Subject to Section 11.3, Developer agrees that it will (a) hold in strict confidence and not disclose to any third party, any CI of Idea Fabrik, except as specifically approved in writing by Idea Fabrik; (b) protect such CI with at least the same degree of care that Developer uses to protect its own highly confidential CI, but in no case, less than a the highest degree of care used by government contractors to secure classified information; (c) use Idea Fabrik CI for no purpose other than as specifically authorized under this Agreement; (iv) limit access to the Idea Fabrik CI to those of Developer’s employees or authorized representatives having a need to know who have signed confidentiality agreements substantively as protective of Idea Fabrik as this Agreement; and (v) immediately notify Idea Fabrik upon discovery of any loss or unauthorized disclosure of Idea Fabrik CI. The Parties agree that neither party will communicate any information to the other party in violation of the proprietary rights of any third party. The parties shall treat the terms and conditions and the existence of this Agreement as Confidential Information. Each party shall obtain the other’s consent prior to any publication, presentation, public announcement or press release concerning the existence or terms and conditions of this Agreement.
11.3 Exclusions. Developer has no obligations under this Agreement with respect to any portion of the Idea Fabrik CI if such Developer can demonstrate with competent evidence that such portion (a) was in the public domain at the time it was communicated to Developer by Idea Fabrik; (b) entered the public domain subsequent to the time it was communicated to Developer by Idea Fabrik, through no fault of Developer; or (c) was in Developer’s possession free of any obligation of confidence prior to the time it was communicated to Developer by Idea Fabrik. Notwithstanding the above, Developer may disclose Idea Fabrik CI, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that Developer gives Idea Fabrik reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist Idea Fabrik in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the CI so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
11.4 Restrictions. Developer will not reproduce the Idea Fabrik CI in any form except as required to exercise its rights under this Agreement. Any copy of any of Idea Fabrik CI remains the property of Idea Fabrik and will contain all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by Idea Fabrik.
11.5 Ongoing Obligations. Developer’s obligations under this Agreement will survive termination of this Agreement and continue in full force and effect. All tangible information furnished hereunder by Idea Fabrik to Developer shall remain the property of Idea Fabrik. Upon termination of this Agreement, or upon written request of Idea Fabrik, Developer will (a) cease any use of Idea Fabrik CI; and (b) promptly return to Idea Fabrik all documents and other tangible materials containing any portion of, or summarizing, Idea Fabrik CI and all copies thereof. At Idea Fabrik’s request, an authorized representative of Developer will provide a certificate attesting to Developer’s compliance with the foregoing.
12. TERM AND TERMINATION.
12.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years thereafter, unless earlier terminated in accordance with this Agreement, and shall automatically renew for successive one (1)-year terms, unless either party provides written notice of its desire not to renew at least sixty (60) days prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).
12.2 Continuing Use License. If Idea Fabrik opts not to renew this Agreement at the end of any Term, Developer may license the HeroEngine for operating the Game outside of the HeroCloud service. License terms and conditions will be made available to Developer through the Idea Fabrik website and will include a 15% royalty to Idea Fabrik on running revenues from the Game.
12.3 Upgraded License. If Developer opts not to renew this Agreement at the end of any Term, Developer may license the HeroEngine for operating the Game outside of the HeroCloud service. License terms and conditions will be made available to Developer through the Idea Fabrik website and will include a one-time transfer fee of $25,000 plus the then-current license fee for HeroEngine plus a 10% royalty to Idea Fabrik on running revenues from the Game.
12.4 Termination for Breach. Either party may, at its option, terminate this Agreement upon notice to the other party if such other party materially breaches this Agreement fails to cure such breach within thirty (30) days after receiving written notice thereof.
12.5 Effect of Termination. Upon any termination or expiration of this Agreement, all rights granted to Developer under this Agreement will immediately terminate, and Developer shall (a) immediately cease offering, providing and/or distributing access to and/or use of the Idea Fabrik Platform and/or HeroCloud Services, related documentation, the Idea Fabrik Brand and any Idea Fabrik Confidential Information; (b) delete any Idea Fabrik Confidential Information from Developer’s computer storage or any other media including, but not limited to, online and off-line libraries; (c) return to Idea Fabrik or, at Idea Fabrik’s option, destroy, all copies of documentation relating to the Idea Fabrik Platform and HeroCloud Services, and any Idea Fabrik Confidential Information then in Developer’s possession or control; and (iv) pay (and continue to pay) to Idea Fabrik all amounts due and payable under Section 6.2. Upon termination or expiration of this Agreement, Developer acknowledges and agrees that Idea Fabrik will have the right to terminate Developer’s Account and delete all Games and Developer Content, and that Idea Fabrik will not be liable to Developer or any third party (including, without limitation, Customers) for any termination of Developer’s and/or Customer’s access to the Idea Fabrik Services or Game, and/or deletion of Account Information, Games and/or Developer Content. Developer understands that the rights of termination hereunder are absolute. Idea Fabrik shall not incur any liability or compensation obligation whatsoever for any damage (including, without limitation, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by Developer (or for any compensation to Developer) arising from or incident to any expiration or termination of this Agreement that complies with the terms of this Agreement whether or not Idea Fabrik is aware of any such damage, loss or expenses. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all other remedies will remain available.
12.6 Survival. The provisions of Sections 2.3, 3, 5.3, 6.1, 6.2, 7, 8.3, 9, 10.2, 11, 12.4, 13 and 14 shall survive any termination or expiration of this Agreement.
14. DEFINITIONS. Capitalized terms used in this Agreement not otherwise defined above, shall have the meanings set forth or cross referenced below.
14.1 “Brand” means, as relating to a party, any one or more of the trademarks, service marks, trade names, domain names, logos, business names, product names, and/or slogans owned or licensed by such party.
14.2 “Customer” means any party to whom Developer (or Idea Fabrik acting on Developer’s behalf) grants access and/or use of the Game for their own purposes and not for redistribution or resale on a website using the Idea Fabrik Platform.
14.3 “Developer Content” means all information, and data submitted by Developer to Idea Fabrik in the course of accessing and/or using the HeroCloud Services (except Feedback), including information about Developer, Co-Developers and Developer’s Games.
14.4 “Game” means a custom online video simulation made available by Developer using the Idea Fabrik Platform, and operated using the Idea Fabrik Platform, to Idea Fabrik, and all related content, including, music, picture, video or other graphic and data files, and all related code (that enables Customers to access and operate such Games). Sequels to the Game or other such derivatives of the Game (other than incremental add-ons to the Game) shall not be considered part of the same Game for purposes of this Agreement and the rights granted under this Agreement.
14.5 “Game Launch Date” means the date Developer first distributes, offers, or otherwise makes available, the Game, through the HeroCloud Services.
14.6 “HeroCloud Services” means the services provided by Idea Fabrik to Developer by means of hosting and making the features and functions of the (a) Idea Fabrik Platform available to Developer for the development of Games in accordance with this Agreement; and (b) Idea Fabrik Platform and Games in combination enabling Developer and Customers to access the foregoing in accordance with this Agreement, in order for Customers to have the opportunity to use the Game as a 3D online world for entertainment or other purposes. HeroCloud Services also include the hosting of the online forum connecting Developers and Co-Developers.
14.7 “Idea Fabrik Platform” means Idea Fabrik’s proprietary technology and Idea Fabrik’s proprietary software known as the Idea Fabrik, which consists of the HeroBlade development client, and simulation server software, which enables the development of 3D online worlds, games, simulations, and other online environments for entertainment or other purposes enabling Developers to develop Games. The Idea Fabrik Platform shall include all improvements, modifications or enhancements thereto, and any associated technical documentation. The Idea Fabrik Platform includes access to technologies licensed from various third-parties as enumerated on the HeroEngine Wiki website, and access to those technologies is provided under the terms of this license Agreement and only in conjunction with your use of the IdeaFabrik Platform for development and operation of the Game.
14.8 “Server” means one (1) or more computer servers controlled and/or operated by or on behalf of Idea Fabrik and used to host the Idea Fabrik Platform, Games, Developer Content, and any other necessary third-party software in connection with providing the HeroCloud Services.