Game Developer Terms and Conditions
These general terms and conditions form an integral part of the Agreement between the Parties.
1.
License Grant
The Game Developer hereby, during the term of the Agreement, grants to Challengermode a non-exclusive, non-transferable, revocable, non-sublicensable license limited to the Relevant Market and the terms and conditions hereof (the “License”) including:
a. All necessary rights and access to the Game and the Game Developer API in order for Challengermode to be able to integrate the Game and the Game Developer API to the Platform through the Platform API;
b. All necessary rights and access to the Game and the Game Developer API in order for Challengermode to be able to offer the Game to third parties, such as gamers and Tournament Organizers, on the Platform;
c. The right to present and exploit gaming data deriving from the gamers’ gaming activities in the Game;
d. The non-exclusive right to organize competitions, Tournaments, livestreams and other events in the Game on the Platform (the Game Developer also approves that Tournament Organizers may organize competitions, Tournaments, livestreams and other events in the Game on the Platform);
e. The right to use, and exploit the Game (brand, name and any other identifications) as a game available on the Platform only for the purpose of promoting the Tournaments in the Game. Challengermode has the right to advertise the Game on the Platform, Challengermode shall each time negotiate and agree the advertising materials with the Game Developer; and
f. The right to market competitions, Tournaments, livestreams and other events in the Game on the Platform.
The Game Developer retains all ownership of its intellectual property rights and all other rights to the Game and the Game Developer API, including code, design and trademark, copyright content. Even if the Game or the Game Developer API is changed after feedback and suggestions from Challengermode, Challengermode has no independent right to such modifications.
The Game Developer retains the right to organize competitions, Tournaments, livestreams and other events in the Game on the Platform.
2.
Undertakings and Access
The Game Developer shall during the term of the Agreement, make its best effort to provide full access and uptime to the Game and the Game Developer API. Game Developer acknowledges that any deficits in access or uptime in relation to the Game and the Game Developer API will limit Challengermode’s provision of the Game to gamers on the Platform.
The Game Developer shall notify Challengermode in writing prior to planned maintenance or any other activity that might result in expected downtime of the Game and the Game Developer API. Such notice shall be given at least three (3) days prior to the expected downtime. In the event of an emergency, the Game Developer undertakes to notify Challengermode of the assessment of the issue resolution as soon as possible (up to 12 hours).
The Game Developer undertakes, within the term of the Agreement, to keep on supporting server infrastructure of the Game (and the Game Developer API) to the reasonable extent.
Game Developer is entitled to restrict access to the Game Developer API and/or remove the access key to the Game Developer API unilaterally if the functioning of the Platform creates technical problems and/or has a negative impact on the support of the server infrastructure of the Game and Challengermode fails to cure such technical problems and/or a negative impact within five (5) calendar days from the receipt of a notice from the Game Developer.
Challengermode undertakes to control that Tournament Organizers organize and conduct all Tournaments in an appropriate manner.
3.
Brand Features
During the term of the Agreement and subject to any applicable restrictions and other terms of the Agreement, the Parties grants to each other a non-exclusive, royalty-free right to use the trademarks, service marks, logos or other distinctive brand features relating to the products or services of each other (“Brand Features”) as necessary to perform its obligations under the Agreement. A Party may also during the term of the Agreement use any such Brand Features in marketing and promotional activities subject to the other Party’s prior written consent in each instance.
4.
Personal Data
Each Party shall abide by applicable data protection legislation, particularly Regulation (EU) 2016/679 (the “GDPR”). Challengermode’s processing of Game Developer’s personal data for its own purposes and means are described in Challengermode’s from time to time applicable privacy policy available at https://www.challengermode.com/privacy. In the event a Party process personal data on behalf of the other Party under the Agreement, the Parties shall enter into a separate data processing agreement to exclusively govern such personal data processing.
5.
Intellectual Property
All “Intellectual Property Rights”, meaning any patents, trademarks, internet domain names, service marks, registered designs, applications for any of the foregoing, copyright, design rights, trade and business names and any other similar rights regardless of if protected in any country, are, and shall remain, the exclusive property of the Party that has developed or otherwise produced it, whether as individual items or a combination of components. For the avoidance of doubt, Challengermode shall own all Intellectual Property Rights in relation to the Platform and the Platform API and the Game Developer shall own all Intellectual Property Rights in relation to the Game and the Game Developer API.
No Party shall receive any rights by implication or otherwise to the Intellectual Property Rights of the other Party, or any part thereof, except as expressly provided in the Agreement. Neither Party shall seek to assert or challenge the ownership of any Intellectual Property Rights that is provided or developed by the other Party for the purposes of the Agreement.
6.
Revenue Share and Fee
As reimbursement for its provision of the Game hereunder, the Game Developer is entitled to a remuneration from Challengermode in the form of a Revenue Share of Challengermode’s net revenues (meaning gross revenues after VAT, payment and transaction costs and any prizes distributed to gamers) from subscriptions, tournament passes, league passes relating to the Game on the Platform (the “Fee”).
The Fee shall be paid out quarterly. Payment of the Fee to Game Developer shall be made within fifteen (15) business days from the Game Developer’s invoice issued after the quarterly report review.
Challengermode shall provide the Game Developer with a report each three (3) calendar months (quarterly report) within ten (10) calendar days from the last day of the reportable quarter. The quarterly report shall include the details on the quantity of the conducted Tournaments, paid passes, paid subscriptions and paid league passes.
In case there are discrepancies between the Game Developer’s data and Challengermode’s calculations of the net revenues, the Game Developer may request account reconciliation and dispute the report within fifteen (15) calendar days upon receipt of the applicable quarterly report by the Game Developer. If the Parties do not resolve an issue within the negotiations, the Game Developer is entitled to initiate an Audit in accordance with Clause 7. If the Game Developer does not dispute the quarterly report within fifteen (15) calendar days upon receipt of the applicable quarterly report, it will be deemed that the Game Developer agrees with the provided quarterly report.
7.
Audit
Game Developer may, once a year, at Game Developer’s sole expense, engage a reputable, independent certified public accountant who has not been retained on a contingent fee basis (the “Accountant”), to inspect the relevant records and books of account of Challengermode regarding Fee payable during the twelve (12) month period immediately preceding the date of inspection.
Any such inspection (a) shall be conducted during Challengermode ’s normal business hours and in a manner designed to minimise any disruption of Challengermode’s business; (b) may not be made more frequently than once during each twelve (12) month period commencing with the date of the initial commercial release of the Game tournament on the Platform; and (c) must be completed within sixty (60) days of the date on which it begins.
Prior to such inspection, the Accountant must agree in writing with Challengermode to maintain in confidence all information disclosed by or received from Challengermode in the course of such inspection.
The Accountant shall report to Game Developer only the results of such inspection pertaining to Fee payable and shall at the same time provide an identical copy of the report of such results to Challengermode (the “Audit Report”).
With respect to any claim by Game Developer based upon such audit that additional moneys are payable by Challengermode pursuant to the Agreement, Challengermode shall not be deemed in breach of the Agreement if, within forty-five (45) days after Challengermode’s receipt of any written claim that additional money are due and payable together with a copy of the Audit Report, Challengermode either (i) pays such additional moneys so claimed by Game Developer; or (ii) contests such claim, in whole or in part, by written notice sent to Game Developer. The expenses of audits pursuant to this Clause 7 shall be borne by Game Developer; provided, however, that Challengermode shall be charged with the expense of any such audit that establishes an underpayment to Game Developer in excess of ten percent (10 %) of the amount of the Fee reported and paid for the period audited.
8.
Term and Termination
The term of the Agreement is twelve (12) months from the day of signing the Agreement. The Agreement is automatically renewed with periods of twelve (12) months at a time if not terminated in writing at least three (3) months prior to the end of each period.
Each Party shall be entitled to terminate the Agreement with immediate effect:
(i) in the event that the other Party commits a material breach of the Agreement and such breach is not cured within thirty (30) days; or
(ii) if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganisation proceedings or should enter into receivership.
If the ownership in Challengermode is materially changed, Challengermode shall have the right to terminate the Agreement with immediate effect, after ninety (90) calendar days written notice.
In case of immediate termination of the Agreement for any reasons, Challengermode shall pay the Game Developer all accrued Fees subject to Clause 6.1 for the preceding period up until the termination, within thirty (30) calendar days after the termination occurs.
9.
Indemnity
The Game Developer warrants that it has all necessary authority and ownership as needed to give the grants in Clause 1.1. The Game Developer will defend Challengermode if a claim, litigation or other action is brought against Challengermode by a third party for infringement of such third party’s intellectual property rights, such as but not limited to copyright or trademark, or trade secret in relation to the Game Developer API and the Game. The Game Developer further undertakes to indemnify Challengermode for reasonable costs of defense, including attorneys' fees, and its direct documented damages, arisen out or in connection with such proceedings, resulting in a final judgment.
10.
Liability
Neither Party shall be liable for any indirect or consequential damages including but not limited to loss of profits, loss of goodwill or missed opportunities.
Either Party’s liability under the Agreement shall per year be limited to the lower of either SEK 50 000 or the aggregate amount of the Fees paid and payable, but not yet invoiced to Challengermode by the Game Developer, during the previous consecutive twelve (12) months of the Agreement.
The limitation of liability set forth in this Clause shall not apply in the event of (i) gross negligence or wilful misconduct; (ii) infringement of any third party’s intellectual property rights; or (iii) breach of confidentiality undertakings.
11.
Confidentiality
Each Party agrees to keep and procure to be kept secret and strictly confidential all information in any form or medium whether disclosed orally or in writing before or after the execution of the Agreement designated as confidential in writing by either Party together with all other information which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, consultants, sub-contractors, customers and suppliers of either Party, including the terms of the Agreement, or information which otherwise may reasonably be regarded as confidential information of the disclosing Party. For the avoidance of doubt confidential information shall not be used by either Party for any purpose other than fulfilling its obligations and complying with the terms and conditions of the Agreement.
Disclosure of confidential information shall be made only to those affiliates, employees, representatives (including for the avoidance of doubt, auditors and legal advisers) and sub-contractors who have a need to know the relevant information in order to further the purposes of the Agreement. The disclosing Party shall ensure that such receivers are bound by confidentiality no less strict than set forth in the Agreement.
(i) The provisions of this Clause 11 shall not apply to any confidential information which the receiving Party can demonstrate:
(ii) is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party; or
(iii) is or becomes public knowledge other than by breach of the Agreement; or
(iv) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(v) is independently developed without access to the confidential information; or
(vi) disclosure of confidential information is required by mandatory law, rule, regulation, applicable stock exchange rules or a court order.
The provisions of this Clause 11 shall survive the termination of the Agreement and for a period of two (2) years thereafter.
Upon request by the disclosing Party or upon termination of the Agreement, the receiving Party undertakes to return and/or destroy, as requested, any materials containing confidential information, as well as any copies of such information. If such confidential information and/or copies thereof cannot be returned, the receiving Party undertakes to destroy it.
Notwithstanding, the provisions of Clause 11, both Parties may publicly announce the existence of the initiated cooperation between the Parties as set forth in the Agreement in the manner they see fit and are capable to. This may include in-game and social media pushes. The Parties are free to market the events on the Platform relating to the Game however they wish.
12.
Force Majeure
Neither Party shall be responsible to the other for any failure or delay in performing any of its obligations under the Agreement or for other non-performance hereof if such delay or non-performance is caused by pandemic, strike, labour disturbances, fire, flood, riot, act or ordinance of any governmental or local authority, terrorism, or by any other cause beyond the reasonable control of that Party (a “Force Majeure Event”). The Party who is affected by a Force Majeure Event shall immediately inform the other Party of such event and use reasonable commercial efforts to remove or overcome the hindrance for performance. Should a Force Majeure Event continue for more than three (3) months, either Party shall have the right to terminate the Agreement with immediate effect.
A Force Majeure Event which had occurred prior to the formation of the Agreement shall give a right to termination only if its effect on the performance of the Agreement could not be foreseen at the time of the formation of the Agreement.
If, as a result of a Force Majeure Event, the performance by either Party of such Party’s obligations under the Agreement is only partially affected, such Party shall nevertheless remain liable for the performance of those obligations not affected by the Force Majeure Event.
13.
Miscellaneous
The Agreement is valid only when signed by both Parties and may only be amended in writing in a document signed by both Parties.
This Agreement shall not be deemed to create any kind of joint venture, agency or partnership between the Parties and neither Party shall be considered an agent or legal representative. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party, with regard to any manner or thing whatsoever, unless otherwise specifically agreed upon in writing.
Provisions contained in the Agreement which are expressed or by their nature and context are intended to survive the termination of the Agreement, including but not limited to 1.1(c), 5, 9, 10, 11, 13.3 and 15. shall so survive such termination.
Notice of termination and/or other notices shall be sent by courier, registered post or electronic message to the other Party’s contact person at the address specified by such Party. The other Party shall be deemed to have received such notice:
(i) At the time of delivery, if delivered by courier;
(ii) 5 days after dispatch, if sent by registered post;
(iii) At the time of arrival at the recipient’s electronic address, if sent by electronic message.
At the time of the Parties’ signing of the Agreement the Parties’ contact details are as set out in the main agreement document.
14.
Entire Agreement
The Agreement constitutes the entire agreement between the Parties as to its subject matter and all possible written or verbal undertakings that may have preceded the Agreement, are replaced by the contents of the Agreement.
15.
Governing Law and Disputes
This Agreement and any non-contractual obligations arising out of or in connection therewith shall be governed and constructed in accordance with the substantive laws of Sweden.
Any dispute controversy or claim, contractual or non-contractual, arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations of the SCC shall apply, unless the SCC, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its own discretion, that the Arbitration Rules of the SCC shall apply. In the latter case, the SCC shall also decide whether the arbitral tribunal shall be composed by one or three arbitrators.
The venue for the proceedings shall be Stockholm, Sweden. The proceedings shall be held in the English language.
The Parties undertake and agree that all arbitral proceedings conducted under this arbitration clause shall be kept confidential, and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceedings shall be used solely for the purpose of those proceedings.
