MAD MUSHROOM

DEVELOPMENT AND PUBLISHING AGREEMENT

This Development and Publishing Agreement, including the attached Terms and Conditions and Schedules (if any),
(“Agreement”) is entered into between Mad Mushroom Media, Inc. (“Publisher”) and [Insert] (“Developer”) as of [Insert]
(“Effective Date”).

1. KEY DEFINITIONS

“Game” Video game currently titled “Insert”, DLC, localizations, ports, expansion packs, upscaled
and HD versions, special editions and other versions, patches and updates;

“Advance” $[insert] USD;

“Royalty” of Net Revenue, 70% to Developer, 30% to Publisher;

“Territory” Worldwide;

“Term” Beginning on the Effective Date and ending [Insert] years following First Commercial
Release, subject to automatic renewal for additional terms of 1 year;

“Platforms” Mobile platforms (iOS, Android), PC (Mac, Linux, Steam OS), Microsoft (Xbox 1, Xbox
Series S/X, and Windows 10 Store), Nintendo (Switch), Sony (PlayStation 4 and 5), any
video game subscription or streaming platform and successor platforms released during the
Term;

“Initial Platform” Windows 10;

“Marketing Budget” a minimum of $[insert], capped at [insert]% of Gross Revenue, which budget includes both
Recoupable Marketing Budget and non-recoupable Content Creator Value;

“Recoupable Marketing Marketing Budget minus Content Creator Value such that only Publisher’s incurred external
Budget” expenditures are recoupable;

“Service Budget” [insert]% of Gross Revenue, capped at $[insert], which amount includes the Live Ops
Budget;
“Live Ops Budget” $[insert] per month, for the [12] months following First Commercial Release;

“Final Delivery Date” [insert], as adjusted pursuant to the Agreement; and

“Gold Master Date” [insert], as adjusted pursuant to the Agreement.

2. ADDITIONAL TERMS

The parties agree to the following additional terms:

a. [Insert terms or NA].

b. [Insert terms or NA].

By signing below, the parties also agree to the attached Terms and Conditions and Schedules (if any).

MAD MUSHROOM MEDIA, INC. [INSERT]

Per: ______________________ Per: ______________________

Name: Name:
Title: Title:
Email: Email:
 TERMS AND CONDITIONS
1. Additional Definitions.
a. “Ancillary Products” - physical and digital products derived from
the Game, including but not limited to merchandise and media content
but excluding Sequels;
b. “Bugs” - errors impacting Game functionality, visuals or audio,
that delete or corrupt data, viruses or malicious code or non-conformity
to Platform requirements;
c. “Confidential Information” - non-public information disclosed
by one party to the other, including but not limited to trade secrets, data,
business plans, customer information, marketing information and
financial matters;
d. “Content Creator Value” - value of marketing services provided
by Publisher’s content creators, as such value is determined by Publisher
acting reasonably;
e. “Defects” - non-conformity with Vision or Bugs;
f. ”First Commercial Release” - first day the Game is available for
sale on the Initial Platform to the public, excluding pre-sales and any
other sale made prior to the Game being made available to the public;
g. “Gold Master” - finished Game build for the Initial Platform
meeting Vision and approved by Publisher as set forth herein;
h. “Gross Revenue” - total amount derived from sales, licensing and
other exploitation of Game and Ancillary Products (including but not
limited to crowdfunding campaigns and Platform exclusivity payments);
i. “Intellectual Property Rights” - copyrights, copyrightable
works, works of authorship, moral rights, character rights, sui generis
protection and rights of publication, patents and patentable inventions,
trademarks, trade secrets and other Confidential Information and any
applications and registrations related to the foregoing;
j. “Net Revenue” - Gross Revenue minus Recoupable Costs;
k. “Recoupable Costs” - the following Publisher costs incurred in
connection with the Game and Ancillary Products: (i) Advance; (ii) third
party payment processing charges; (iii) returns, rebates, replacement
units and chargebacks; (iv) sales tax, duties, use or value added taxes
and similar governmental and pass-through charges imposed by
governmental authorities for payments directly related to the Game and
Ancillary Products regardless of how denominated; (v) costs associated
with obtaining ratings, permits, licenses and approvals for the Game; (vi)
fees paid to Platform owners and other third party retailers; (vii) costs
directly related to physical Game units and Ancillary Products (for
example, manufacturing, insurance and shipping costs); (viii) currency
exchange fees for non USD payments; (ix) cost of any recalls and/or
replacement units provided; (x) Service Budget; and (xi) Recoupable
Marketing Budget; and
l. “Vision” - see Schedule A.
2. Development. Developer shall: (a) develop the Game consistent
with the Vision and of a quality consistent with that of other third-party
published independent video games; (b) deliver and receive Publisher’s
approval of the Gold Master on or before the Gold Master Date; and (c)
reasonably cooperate with and support Publisher in performance of
Publisher’s obligations under this Agreement, including but not limited
to providing materials, documentation and assistance reasonably
requested.
3. No Milestones. Developer may develop the Game at its own pace
so long as the Final Delivery Date is met and, unless Publisher
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determines there is a risk such date may not be met, Publisher shall not
require a fixed milestone schedule. In lieu of a milestone schedule,
within 14 days of Publisher’s request, Developer shall deliver to
Publisher: (a) latest executable Game build on at least one Platform; (b)
outline of work done on the Game since Publisher’s last request; (c)
outline of additional work planned until Final Delivery Date and
highlighting changes to previously delivered outlines of additional work;
and (d) additional materials required for delivery of the Game to any
third party (if applicable) (collectively, each, a “Build”). Developer’s
response may be informal but in writing, as long as it allows Publisher
to review such milestone Build. Publisher feedback is provided “As Is”
without any warranty, express or implied. Publisher shall pay the
Advance as set forth on Schedule A.
4. Delays. Developer shall immediately notify Publisher in writing if
it believes the Final Delivery Date will not be met and, if notice is
provided at least 60 days before Final Delivery Date, the parties shall
mutually agree in good faith on a new Final Delivery Date. Developer
shall include data, materials and a development schedule to support its
proposed new Final Delivery Date. Upon the parties’ agreement on a
new Final Delivery Date, the Gold Master Date shall be automatically
adjusted.
5. Gold Master Approval. Developer shall deliver a fully functional
Gold Master on or before the Final Delivery Date (in executable object
code form), compatible on the Initial Platform and Defect free.
6. Defect Correction. If Publisher notifies Developer of a Build
(including but not limited to the Gold Master) Defect, Developer shall
correct and redeliver within a timeframe specified by Publisher acting
reasonably, such process continuing until the Publisher determines that
the Defect is corrected, waives the Defect for purposes of such Build or
terminates this Agreement.
7. Publisher Marketing. Publisher shall, in good faith and to the
extent reasonable: (a) involve Developer in development of any Game
marketing plan; and (b) accommodate Developer’s reasonable requests
and concerns if Publisher determines they improve Game marketing and
distribution and Marketing Budget funds are available. Publisher shall
spend at least the Marketing Budget between Game pre-release, and 12
months post-release, as determined by Publisher pursuant to this section.
While Content Creator Value counts toward the Marketing Budget, only
the Recoupable Marketing Budget is recoupable by Publisher.
8. Developer Marketing. Both prior to and following the Game’s
First Commercial Release, Developer shall provide marketing assets,
attend live events and conduct interviews and perform other marketing
activities as reasonably requested by Publisher. Developer may engage
Game users, so long as prudent and respectful. For clarity, Developer’s
obligations under this section extend to DLC, localizations, ports,
expansion packs, upscaled and HD versions, special editions and other
versions, patches and Game updates.
9. Publisher Services. Publisher shall spend up to the Service
Budget on third party, additional services related to the Game, as
determined by Publisher with consideration of Developer’s input.
Publisher Services may include QA, localization, porting, voice over,
age rating, platform verification, devkits, travel to events, fan events and
PR, as further described in the Vision. The Service Budget excludes
Publisher’s internal costs, which are non-recoupable.
10. Developer Support. For [NUMBER] months following the First
Commercial Release Developer shall: (a) fix reproducible Defects, as
requested by Publisher; and (b) provide email support to Publisher
employees in connection with end user technical support. Such support
is reimbursable only if Developer obtains Publisher’s preapproval for
such expenses.
11. Distribution. Publisher shall use commercially reasonable efforts
to release the Game on the Initial Platform within 3 months following
the Gold Master Date (unless otherwise agreed by the parties) but is not
obligated to make the Game available on other Platforms, or continue to
make the Game commercially available.
12. Credits. Game credits shall center more or as much on Developer,
rather than Publisher. Developer shall submit in-Game credits to
Publisher for approval (not be unreasonably withheld). Publisher shall
credit Developer with at least as much prominence as Publisher on all
printed Game materials.
13. Competing Games. Until 1 year following the First Commercial
Release of the Game, Developer shall not develop, manufacture or
distribute a game: (a) so similar to the Game that risks consumer
confusion; or (b) using the same or substantially similar source code as
the Game (i.e., a reskin), for itself or any third party other than Publisher.
The parties acknowledge and agree that the foregoing restriction is
necessary for the protection of Publisher’s ongoing business.
14. Pricing and Billing. Publisher shall set the Game price on each
Platform, except that the Game shall not be discounted within 1 month,
or bundled with other games within 6 months, of release on and with
respect to a particular Platform, without Developer’s written consent.
15. Royalty Calculation. Within 60 days of the end of each month in
which Publisher receives Gross Revenue, Publisher shall deliver to
Developer a royalty statement (“Royalty Statement”), which Developer
shall use to invoice Publisher for the Developer Royalty. Each Royalty
Statement shall be based on Publisher’s regular accounting practices and
detail: (a) Gross Revenue received during the period; (b) Recoupable
Costs deducted; and (c) information relating to the life to date activity of
the Game including period of statement, origin of Gross Revenues, cost
of goods, reserves, earned royalties, sublicensed and repackaged sales
and Ancillary Products sales. Each Royalty Statement is binding on
Developer if not challenged within 1 year from issuance and, thereafter,
Developer waives any claims related to such Royalty Statement.
Notwithstanding the foregoing, Publisher may withhold paying the
Developer Royalty unless and until a Royalty Statement in which the
total Developer Royalty owed is equal to or greater than $100 USD.
16. Royalty Payment. Developer’s Royalty shall be remitted in USD
by electronic transfer to an account designated by Developer and, if
Developer cannot receive USD, converted into Developer’s currency at
the exchange rate in effect at the time of remittance. Publisher shall apply
withholding and other taxes to Developer’s Royalty as required by
applicable law. Publisher may establish reserves for returns and
defective Games in accordance with Publisher’s business practices (not
to exceed 10% of the Developer Royalty owed to Developer), with
unused reserves liquidated on a rolling monthly basis.
17. Audit Right. Publisher shall maintain, during the Term and for 2
years after, revenue records (“Records”) for the sole purpose of
verifying the Developer Royalty, during which time Developer shall
have an annual right to designate a certified public accountant to audit
Records during Publisher’s normal business hours, provided that
Developer shall require such accounting firm to treat, and be responsible
for such accounting firm treating, Records as Publisher Confidential
Information and not disclose any information to any person except the
parties. In the event an audit reveals: (a) underpayment of the Developer
Royalty, Publisher shall promptly pay the amount owed and, if the
underpayment is the greater of 5% or more of the Royalty owed or
$10,000.00 USD, Developer’s reasonable costs of conducting the audit;
or (b) overpayment of the Developer Royalty, Developer shall (at
Publisher’s request) promptly repay such amount or Publisher shall
retain the Developer Royalty until such overpayment is recouped.
18. Sequels. Developer shall notify Publisher in writing of any sequel,
prequel or game set in the same universe as the Game (“Sequel”)
Developer plans to develop. The parties shall negotiate in good faith for
Publisher to publish such Sequel for a period of 120 days. If the parties
are unable to timely agree on Sequel publishing terms during such
period, this section ceases to apply to such Sequel. Developer shall not
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make any claims of future Game development without consulting
Publisher.
19. Termination. Prior to Term expiration, this Agreement may be
terminated: (a) by either party delivering notice of termination at least
60 days but no more than 120 days before any Term renewal, such
termination effective at end of Term; (b) in the event of a material breach
by either party, non-breaching party may terminate this Agreement upon
45 days’ notice and opportunity to cure if breaching party has not cured
or taken reasonable steps to cure the breach within such 45 day period
(if Developer is the breaching party, Publisher may also withhold
Developer Royalty payments until such breach is cured); or (c) by either
party, immediately, upon notice to the other party if such other party
becomes insolvent or unable to pay its debts, enters into liquidation,
whether voluntary or compulsory (other than for reasons of bona fide
amalgamation or reconstruction), passes a resolution for its winding-up,
has a receiver or administrator manager, trustee, liquidator or similar
officer appointed over the whole or any part of its assets, makes a
composition or arrangement with its creditors or takes or suffers any
similar action as a result of its debt.
20. Publisher’s Termination. Upon termination by Publisher
pursuant to Section 19(b) or (c), Developer shall (at Publisher’s
election): (a) promptly repay the Advance received (to the extent not
already recouped) and Recoupable Costs spent as of termination date
and pay Publisher the fair market value of the licenses granted to
Publisher in the Agreement (as determined by the parties or an
independent third-party valuator selected by Publisher and paid for by
Developer, minus any outstanding Developer Royalty which Publisher
shall retain), following which Publisher shall promptly cease
distribution, sale and marketing of the Game and Ancillary Products
(except that Publisher may continue to distribute physical versions of the
Game and Ancillary Products for up to 6 months following termination)
and transition Game Platform accounts to Developer (“Account”)
(where possible) pursuant to Section 22; or (b) Publisher may continue
to publish the Game pursuant to this Agreement, except that Publisher
may recoup all costs associated with completing and continued
development of and support for the Game and Developer shall receive a
reduced Royalty of 40% following recoup of all Recoupable Costs. If
Publisher continues to publish the Game pursuant to this section,
Developer shall promptly provide Game source code and other materials
and documents reasonably requested by Publisher.
21. Developer’s Termination. Upon termination by Developer
pursuant to Section 19(b) or (c), Publisher shall: (a) forfeit any Advance
paid and Recoupable Costs spent as of the termination date; and (b)
Publisher shall promptly cease distribution, sale and marketing of the
Game and Ancillary Products (except that Publisher may continue to
distribute physical versions of the Game and Ancillary Products for up
to 6 months following termination), remit any outstanding Developer
Royalty and transition Accounts to Developer (where possible) pursuant
to Section 22. For clarity, Publisher shall not be deemed in material
breach for non-payment of the Developer Royalty unless: (i) Publisher
fails to produce Records in connection with an audit pursuant to Section
17; (ii) such claim is reduced to a final judgment by a court of competent
jurisdiction and Publisher fails to pay Developer the amount thereof
within 30 days after Publisher receives written notice of the entry of such
judgment; or (iii) Publisher agrees in writing that the Developer Royalty
is owing and does not pay such amount within 30 days.
22. Account Transfers. Publisher shall use commercially reasonably
efforts to transition Accounts to Developer following termination. If
Publisher cannot transfer one or more Account to Developer, Publisher
may continue distributing the Game under such Accounts to those users
as of termination but only if required by Publisher’s contractual
obligations or applicable law.
23. License. Developer hereby grants Publisher a sublicensable and
assignable (only to Publisher’s affiliates or to an arm’s-length third party
in the case of the sale of Publisher or substantially all of Publisher’s
assets) licence to copy, reproduce, display, market, perform, distribute,
resell and otherwise commercially exploit throughout the Territory: (a)
on an exclusive basis (i) the Game on the Platforms, and (ii) to create,
license, market and/or distribute Ancillary Products; and (b) on a non-
exclusive basis, Game Intellectual Property Rights (including the right
to create derivative works thereof) and Developer’s trademarks for
Publisher to exercise its rights and perform its obligations under this
Agreement. Notwithstanding the foregoing and subject to Publisher’s
prior written consent (not to be unreasonably withheld), Developer may
exercise certain of these exclusive rights in order to perform its
obligations under this Agreement, including but not limited to the
marketing of the Game through Developer’s website, social media and
streaming channels and at trade shows and conventions.
24. Esports. Developer hereby grants Publisher the exclusive right to
host, organize, manage, administer, and otherwise operate Game esports
events and may distribute, produce, broadcast, rebroadcast, transmit,
publicly perform, publicly display, promote and otherwise exploit such
esports. For the avoidance of doubt, all Game esport activities are subject
to Publisher’s prior review and approval.
25. Ownership. Developer and/or its licensors own the Game and all
Intellectual Property Rights within. Publisher owns all Intellectual
Property Rights in the Publisher Services and results thereof. Upon
expiration or termination of this Agreement pursuant to Section 21,
Publisher shall assign to Developer all Intellectual Property Rights in the
Publisher Services to Developer, for example ports, localizations and
trailers created directly or indirectly by Publisher, if Publisher has
recouped the Advance and Recoupable Costs.
26. Securing Rights. Developer shall list in the Vision any licenses,
trademarks, copyrights, patents and other licenses required for the Game.
Developer shall be solely responsible for protecting Game Intellectual
Property Rights, such as through trademark and copyright registrations,
unless Publisher agrees in writing to assist Developer, in which case such
expenses shall be paid from the Service Budget.
27. Mutual Representations and Warranties. Each party represents
and warrants that: (a) if a corporation or other legal entity, is a duly
authorized entity in its jurisdiction of formation and in good standing;
and (b) execution, delivery, and performance of this Agreement has been
duly authorized and constitutes a valid and binding agreement on it and
does not result in the breach of, or constitute a default under, or violate
any provision of, any agreement or other restriction the party is bound
by. Neither party has made and neither party does hereby make any
representation or warranty: (i) with respect to Game revenue or the
Developer Royalty; or (ii) that the Game will be favorably received by
reviewers or the public.
28. Developer Representations and Warranties. Developer
represents and warrants that the Game: (a) and Developer comply with
applicable laws and regulations; (b) and assets supplied by Developer
conform to the Vision and, upon and following the Gold Master Date,
do not contain Defects, other than minor Bugs that do not materially
impact gameplay; (c) and assets supplied by Developer are wholly
owned or validly licensed by Developer and do not infringe any
Intellectual Property Right(s) of any third party; (d) does not contain any
material that is libelous or defamatory, that discloses private or personal
matters concerning any person, that is obscene, indecent or pornographic
or contains any virus or other contaminating or destructive feature; (e)
does not include incorporate, combine or use in its development any
materials subject to an open-source license that would require
Developer, Publisher or any third-party to disclose, license, distribute or
otherwise make all or any part of the Game to be (i) disclosed or
distributed in source code form, (ii) licensed for the purpose of making
derivative works, or (iii) redistributable at no charge; and (f) Advance
shall be used by Developer solely to fund development of the Game and
overhead and operational expenses reasonably necessary and related to
development of the Game. Developer has no knowledge of any claim,
which, if sustained, would be contrary to Developer’s representations,
warranties or agreements.
29. Publisher Representations and Warranties. Publisher
represents and warrants that: (a) performance of its obligations under
this Agreement complies with applicable laws and regulations; (b)
Publisher Services and results thereof do not infringe any existing
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copyright or licence or any other rights of any third party or violate
applicable law; (c) Publisher Services and results thereof do not contain
any material that is libelous or defamatory, that discloses private or
personal matters concerning any person, that is obscene, indecent or
pornographic or contains any virus or other contaminating or destructive
feature; and (d) Publisher Services and results thereof do not include
incorporate, combine or use in its development any materials subject to
an open-source license that would require Developer, Publisher or any
third-party to disclose, license, distribute or otherwise make all or any
part of the Game to be (i) disclosed or distributed in source code form,
(ii) licensed for the purpose of making derivative works, or (iii)
redistributable at no charge.
30. Confidential Information. During the Term and for 2 years after,
each party shall protect Confidential Information provided by the other
party in the same manner as it protects its own Confidential Information
but no less than reasonable care. Receiving party shall only use
Confidential Information to exercise its rights or carry out its obligations
under this Agreement and shall restrict access to Confidential
Information to only its employees, consultants and professional service
providers who require access in the course of their work, each bound by
a duty of confidentiality equal to or greater than that contained in this
Agreement. If Confidential Information is required to be disclosed
pursuant to any law, code or regulation, receiving party shall
immediately notify disclosing party and use commercially reasonable
efforts to seek, or to cooperate with disclosing party in seeking, a
protective order to prevent such disclosure. In the event of a breach or
threatened breach of this section, the aggrieved party has no adequate
remedy in money or damages and, accordingly, shall be entitled to
preliminary, permanent, and other injunctive relief without having to
prove irreparable injury. The parties’ obligations under this Section 30
do not apply to Confidential Information receiving party can prove: (a)
was previously released to the general public by disclosing party; (b)
was released to the general public through no fault of receiving party and
the releasing party is not in breach of a duty of confidentiality owed to
disclosing party; (c) where necessary to comply with law or the valid
order of a court of competent jurisdiction or government agency,
provided receiving party notifies the disclosing party in writing, prior to
disclosure, of such law or order and whom the Confidential Information
is to be disclosed to; or (d) where developed by a third party independent
of any Confidential Information.
31. LIMITATION OF LIABILITY. IN NO EVENT WILL A
PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING
OUT OF THIS AGREEMENT OR ITS TERMINATION,
REGARDLESS OF WHETHER THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
EXCEPT FOR: (A) PUBLISHER’S BREACH OF SECTIONS 16 AND
17 (IN WHICH CASE PUBLISHER’S CUMULATIVE LIABILITY
WILL BE LIMITED TO THE DEVELOPER ROYALTY OWED), OR
(B) DEVELOPER’S BREACH OF SECTIONS 13, 18, 25, 28, 30 AND
34, EACH PARTY’S CUMULATIVE LIABILITY IN CONNECTION
WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL
AMOUNT PAID BY PUBLISHER TO DEVELOPER IN THE 12
MONTHS PRECEDING THE HARM IN QUESTION. DEVELOPER
AGREES THAT ITS SOLE REMEDY FOR FAILURE BY
PUBLISHER TO CURE ANY FAILURE TO MAKE PAYMENT(S)
HEREUNDER SHALL BE A CLAIM FOR DAMAGES AND
DEVELOPER HEREBY WAIVES ALL RIGHTS TO SEEK
INJUNCTIVE OR EQUITABLE RELIEF DUE TO SUCH BREACH.
32. Developer Indemnification. Developer shall indemnify and hold
Publisher, its directors, officers, employees, partners and agents,
(collectively, “Publisher Parties”) harmless from and against all
liabilities arising from any action, claim, damages, losses and reasonable
costs (including but not limited to legal fees) properly incurred by
Publisher Parties related to or arising out of: (a) Developer’s breach of
this Agreement; or (b) a third party action or claim based on facts or
alleged facts inconsistent with any of Developer’s representations,
warranties or covenants. Developer shall reimburse Publisher Parties on
demand for any payment to which the foregoing indemnity applies. In
the case of a third party claim, Publisher shall: (i) give Developer prompt
written notice of any such claim; and (ii) be entitled to conduct the
defense or settlement thereof, with Publisher providing Developer
reasonable progress reports and Developer shall give Publisher
reasonable assistance in defending or settling any such claim. Publisher
may reduce the Developer Royalty by any amount owed by Developer
under this section.
33. Publisher Indemnification. Publisher shall indemnify and hold
Developer, its directors, officers, employees, partners and agents,
(collectively, “Developer Parties”) harmless from and against all
liabilities arising from any action, claim, damages, losses and reasonable
costs (including but not limited to legal fees) properly incurred by
Developer Parties related to or arising out of: (a) Publisher’s breach of
Sections 16, 17, 25, 27 and 29; or (b) Publisher’s violation of law or
intellectual property rights in regard to its marketing obligations through
itself or subcontractors. Publisher shall reimburse Developer Parties on
demand for any payment to which the foregoing indemnity applies. In
the case of a third party claim, Developer shall: (i) give Publisher prompt
written notice of any such claim; and (ii) be entitled to conduct the
defense or settlement thereof, with Developer providing Publisher
reasonable progress reports and Publisher shall give Developer
reasonable assistance in defending or settling any such claim.
39. Conflict. If these Terms and Conditions conflict with: (a) the face
page to this Agreement, the face page controls; (b) or any Schedule, the
Terms and Conditions control.
40. General. The parties are independent contractors with respect to
each other, and nothing in this Agreement shall be construed as creating
an employer-employee, partnership, agency relationship or joint venture
between the parties. This Agreement shall be governed by, and construed
in accordance with, the laws of Texas and the parties submit to the
exclusive jurisdiction of the state and federal courts of Austin for the
purpose of resolving any dispute relating to the subject matter of this
Agreement or the relationship between the parties. Developer The
United Nations Convention on Contracts for the International Sale of
Goods does not apply to interpretation or enforcement of this
Agreement. Each party hereby agrees to accept service of process
pursuant to the notice provisions hereunder and waives any and all
objections to venue, jurisdiction or service of process. This Agreement
expresses the entire understanding between the parties and supersedes
any prior agreements or understandings between the parties relating to
the matters contained herein. If any provision of this Agreement is found
by a court of competent jurisdiction to be unenforceable or invalid, that
provision shall be changed and interpreted to accomplish the objectives
of such provision to the greatest extent possible under applicable law and
the remaining provisions shall remain in full force and effect.

34. Infringing Game. If the Game is or is reasonably likely to be 41. Survival. Sections 1, 12-13, 17, 20-22, 27-34 and 37-41 survive
adjudged infringing or otherwise unlawful or to violate any right of any termination of this Agreement.
third party, as determined by Publisher acting reasonably, (“Infringing
Game”) Developer shall, at its sole cost and expense, promptly: (a) 42. Counterparts. This Agreement may be executed in two or more
modify the Game so that it ceases to be infringing; (b) procure for counterparts, including by electronic means, each of which deemed an
Publisher the right to continue distributing the Game; or (c) reimburse original, but all of which together constituting one and the same
Publisher for all costs incurred in replacing copies of the Game and for instrument.
all refunds given, as well as all reasonable costs of removing infringing
copies of the Game from distribution channels. Publisher shall be
entitled to offset the Developer Royalty against any amount owed by
Developer to Publisher under this section. In addition, following
commencement of any claim or action for which Publisher Parties are
entitled to indemnification, Publisher shall be entitled to withhold
Developer Royalty payments and other sums payable to Developer
pending outcome of such litigation. Developer’s obligations and
Publisher’s rights under this section are conditioned on Publisher (a)
giving Developer prompt written notice of any Infringing Game; and (b)
Publisher providing Developer reasonable cooperation, including, at
Developer’s reasonable request and expense.

35. Force Majeure. No party will be liable to the other for any failure
or delay in fulfilling an obligation under this Agreement if that failure or
delay is directly and materially attributable to circumstances beyond its
control, including but not limited to fire, power failure, labor dispute,
war, civil dispute, pandemic, epidemic or government action (including
any new law or regulation) or inaction (“Force Majeure”). The deadline
for fulfilling the obligation in question will be extended for a period of
time equal to that of the Force Majeure period.

36. Legal Advice. Developer acknowledges that it has sought and

received legal advice from independent counsel or has voluntarily
waived its right to independent counsel with respect to this Agreement.

37. Waiver; Assignment. Failure by either party, in any one or more

instances, to enforce any of its rights in connection with this Agreement
shall not be construed as a waiver of such rights. This Agreement shall
be binding on the parties’ respective successors and permitted assigns.
Developer may not assign this Agreement or any of Developer’s rights
or obligations hereunder without Publisher’s prior written consent.
Publisher may not assign this Agreement or any of Publisher’s rights or
obligations hereunder without Developer’s prior written consent.

38. Notices. All notices hereunder shall be sent by email with read
receipt to the address set forth on the face page, or to such other email
as may be provided in writing by a party. Notice shall be effective on the
date sent.

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 SCHEDULE A

VISION

1. Specifications

On the Final Delivery Date, Developer shall deliver to Publisher a Gold Master of the Game that meets the following criteria:

a. [Insert description];

b. Lore/Backstory. Developer shall provide the final version of the lore/backstory of the Game on the Final Delivery Date; and

c. Fully Functional on the Initial Platform.

2. Schedule

During Game development, Developer shall provide the following deliverables on or before the dates set forth below. Publisher shall have the right
to approve each such deliverable prior to any commercial release [and payment of the corresponding Advance].

a. Early Access PC Build: DATE + $ADVANCE PAYMENT

b. Gold Master PC build: DATE + $ADVANCE PAYMENT

3. Publisher Obligations

Publisher shall arrange for and handle the publication and distribution of the Game as set forth in the Agreement and including:

a. Establishing, operating and maintaining the support system, including game servers, necessary for users to play the Game;

b. Monitoring and maintaining Game operation;

c. Providing customer support and service;

d. Performing Game localization, including translation of the Game;

e. Obtaining consent for user agreements including the Game privacy policy;

f. Obtaining and maintaining any and all administrative reviews, authorizations, and permits;

g. Promoting, marketing, advertising, and conducting Game promotional events;

h. Developing and operating anti-hack and anti-cheat tools to maintain user playability of the Game, including servicing of any such anti-hack
or anti-cheat tools;

i. Providing live and online technical support related to Game operation, in cooperation with Developer;

j. Assisting Developer in Bug detection; and

k. Information sharing regarding player base and spend, as available on each Game.

4. Developer Obligations

Developer shall arrange for and handle the development and technical support for the Game as set forth in the Agreement and including:

a. Developer shall provide regular content updates to the Game, which shall include at a minimum [insert, ex. a new downloadable character
a quarter] and such additional content upgrades as mutually agreed by the parties; and

b. Technical Support, including:

i. Developer shall use its best efforts to prevent and fix Defects within a reasonable time (or such shorter period set forth in the
Agreement),

ii. Developer shall assist Publisher in providing live and online technical support,

iii. Developer shall develop and deliver to Publisher, upon written request from Publisher, within a commercially reasonable time any and
all tools necessary to facilitate the operation and playability of the Game, and

iv. Developer shall assist Publisher in the development of any anti-cheat and anti-hack tools, and shall implement such tools into the
Game, as necessary to reduce or prevent cheating in the Game.

5. LICENSES REQUIRED

[Insert]