| Agreement | Each agreement entered into between SPIL and Partner for one of more of the following subjects: (i) the development and/or building of internet games, (ii) advertising, including branded games, (iii) publishing of games, (iv) the exploitation of white label game portals and/or any other matter relating to the exploitation of games on internet |
| Branded Game | Game branded with the brands and/or look and feel of (third party) customers for use in an advertising campaign |
| Confidential Information | the confidential or proprietary technical or business information of a Party, including without limitation: (a) financial statements and other financial information; (b) reporting information; (c) information on Intellectual Property Rights, (d) User Data and (e) the terms of an Agreement; provided, however, that all of the information will be considered confidential only if it is conspicuously designated as “Confidential,” or if provided orally, identified at the time of disclosure as confidential |
| Demo Version(s) | a version of the Program provided at no charge to the User with a feature set that limits the amount of play time or number of plays by a User of the Full Version |
| Effective Date | Date on which an Agreement becomes effective |
| Full Version(s) | a version of a Program which is fully enabled with features and functionality pursuant to Partner’s documentation and specifications |
| Game | The internet or downloadable game that may be the subject of an Agreement |
| General Information | all information that is not Personally Identifiable Information, which is tracked in connection with a User’s use of the Game. Examples of “General Information” include, without limitation, statistical usage information, browser and video settings of a User’s computer, and the language of the User’s computer systems |
| Intellectual Property Rights | all intellectual and industrial property rights including registered trade and service marks, letters patent, utility models, registered designs, unregistered trade and service marks, trade and business names (including rights in any get-up or trade dress), domain names, rights in domain names, copyright, database rights, unregistered design rights and all other similar proprietary rights in every case which may subsist in any part of the world including any registration of any such rights and applications and any rights to make applications for registration |
| Partner | Each person or entity that enters into an Agreement with SPIL |
| Partner Marks | the trademarks, service marks, logos and trade names of Partner |
| Partner Material | the marketing material pertaining to Partner and the Programs provided by Partner to SPIL |
| Partner’s Games Platform | a Games platform or -portal branded and hosted and provided with content by Partner, including the Games that can be played on the platform by Users |
| Parties | SPIL and Partner jointly referred to and each a ”Party” |
| Personally Identifiable Information | Any information collected from a User that could be used to identify the User, including, without limitation, name, (email) address and/or payment information |
| Platform | Any White Label Platforms and /or Partner’s Games Platform |
| Product | Any product delivered or service rendered under an Agreement |
| Program | the Game, including all Updates thereto, distributed and sold to Users, together with all documentation and related files. As used herein, “Program(s)” includes Demo Versions, Full Versions, and Web Versions. |
| Revenues | The revenues received by a Party for the Product |
| Revenue Share | The share in the Revenues that a Party is entitled to pursuant to an Agreement |
| SPIL | SPIL GAMES B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), incorporated under the laws of the Netherlands, having its corporate seat at Hilversum, the Netherlands, and its registered address at Arendstraat 23, 1223 RE Hilversum, the Netherlands, chamber of commerce number 32106054, VAT number NL 813981487B01 and/or any of its subsidiaries |
| SPIL Sites | all internet websites located at SPIL’s URL listed, including all related web pages, owned or operated by SPIL |
| Term | The period starting on the Effective Date and ending on the date of termination of an Agreement |
| Updates | (a) subsequent releases of the Program that (i) add new features, functionality, and/or improved performance, (ii) operate on new or other databases, operating systems, or client or server platforms, or (iii) add new foreign language capabilities; (b) bug or error fixes, patches, workarounds and maintenance releases; (c) new point releases, including those denoted by a change to the right of the first decimal point (e.g., v3.0 to 3.1), and (d) new major version releases, regardless of the version name or number, but including those denoted by (i) a change to the left of the first decimal point (e.g., v5.0 to 6.0) and/or (ii) the addition of a date designation or a change in an existing date designation (e.g., v2001 to 2002) |
| User | Any player of a Game |
| User Data | collectively, Personally Identifiable Information and General Information |
| Web Version(s) | a version of the Programs with a feature set for play when a User is connected to the Internet |
| White Label Platform | a Games platform branded by SPIL and hosted and provided with content by Partner, including the Games that can be played on the platform by Users |
| a. | it is authorized to enter into the Agreement; |
| b. | owns all or has a license to the Intellectual Property Rights in the Program(-s), including the right to sublicense to SPIL on the terms set out in the Agreement as the case may be; |
| c. | Programs will be up-to-date, true, correct, accurate, and will not: (i) be misleading or deceptive; (ii) be obscene, defamatory or otherwise unlawful; (iii) be violent, sexual or abusive in nature so as to be reasonably likely to cause offence to any material group of people; or (iv) contain anything which, in the opinion of SPIL, damages the reputation or any brand of SPIL or any of its affiliates or is likely to bring SPIL or any of its affiliates into disrepute; |
| d. | the use of the Programs by SPIL in accordance with the Agreement will not infringe any right of any person, and will not breach any applicable law, regulation, rule or relevant industry codes, including the Dutch Act on the Games of Chance (Wet op de kansspelen). (to the extent that such codes do not conflict with this Agreement); |
| e. | the availability and support for the Program will be at all times of a high quality and nature, and will meet the service level criteria and their descriptions in the Agreement as the case may be; |
| b. | SPIL will not be exposed to any computer virus (or any similar or other damaging components) from the Programs; |
| c. | it will comply with SPIL’s Privacy Policy in respect of the collection, use and disclosure of any Personally Identifiable Information; |
| d. | it is not aware of any current or impending claim or proceedings anywhere in the world in respect of any of its intellectual property that is used by SPIL pursuant to this Agreement; and each website represented by any hyperlink shown or embedded in the Programs is suitable in all respects including subject matter to be linked to from the SPIL’s Sites. Upon request, Partner will remove all hyperlinks which in SPIL’s reasonable opinion fail to comply with any of the above requirements at any time. |
| 6.2 | SPIL Warranties. SPIL hereby represents and warrants to Partner that it is authorized to enter into the Agreement and that it will not attempt to bundle any software application with the Programs without a written prior consent from Partner. |
| 6.3 | No Other Warranties. Unless specified in this agreement, all express or implied conditions, representations and warranties, including any implied warranty of merchantability or fitness for a particular purpose, are disclaimed, except to the extent such disclaimers are held to be legally invalid. |
| 6.4 | Limitation of Liability. Except for Partner’s indemnification obligations set forth in Section 6.5 below, neither Party will be liable for any lost profits, or any form of special, incidental, indirect, consequential or punitive damages arising out of or related to this agreement, however caused and under any theory of liability (including negligence) even if such Party has been advised of the possibility of such damages. |
| 6.5 | Partner Indemnification. Partner will defend, indemnify, and hold SPIL, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against SPIL or its third Party for: (a) actual or alleged infringement of any Intellectual Property Right in the Programs for use by SPIL in accordance with the Agreement; (b) a breach of Partner’s warranties as set forth on Section 6.1; (c) any User’s use of the Programs including, without limitation, any actions or claims in product liability, tort, contract, or equity. |
| 6.5 | SPIL Indemnification. SPIL will defend, indemnify, and hold Partner, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against Partner or its third Party for a breach of SPIL’s warranties as set forth on Section 6.2; |
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| 9.1 | Compliance With Laws. Both Parties will comply with all material aspects of the laws and regulations applicable to the Product. Without limiting the foregoing, both Parties will not knowingly produce or distribute any software, products, or technical data in any country where such production or distribution would be unlawful. |
| 9.2 | Notices and Contact Information. All notices and demands under the Agreement will be in writing and will be delivered by personal service, express courier, express mail, or telefax and shall be deemed received upon delivery to the address provided in writing by the other Party (in case of SPIL this is always the address mentioned in Section 1.1 (definitions)). Each Party bears its own responsibility for timely keeping the other Party up to date with the most recent address and contact information. |
| 9.3 | Confidentiality. Except as expressly and unambiguously allowed herein, each Party will hold in confidence and not use or disclose any Confidential Information and will similarly bind its employees and contractors in writing. The receiving Party will not be obliged under this Section 9.3 with respect to information the receiving Party can document: (a) is or has become readily publicly available with restriction through no fault of the receiving Party or its employees or contractors; (b) was received without restriction from a third Party lawfully in possession of such information and lawfully empowered to disclose such information; (c) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the disclosing Party; (d) is independently developed by the receiving Party by employees without access to the other Party’s similar Confidential Information; or (e) is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving Party. The Parties' obligations with respect to Confidential Information will continue for the shorter of two (2) years from the date of termination of this Agreement or until one of the above enumerated conditions becomes applicable. Each Party acknowledges that its breach of this Section 9.3 will cause irreparable injury to the other for which monetary damages might not be an adequate remedy. Accordingly, either Party may be entitled to seek injunctions and other equitable remedies in the event of such breach by the other. |
| 9.4 | Non-Assignment. Partner may not assign, sublicense, transfer, encumber or otherwise dispose of the Agreement without the prior written approval of Partner. Any attempted assignment, sublicense, transfer, encumbrance or other disposal of the Agreement by Partner in violation of this provision will constitute a material default and breach of this Agreement. Except as otherwise provided, this Agreement will be binding upon and inure to the benefit of the Parties' successors and lawful assigns. |
| 9.5 | Press Releases and Public Statements. Neither Party will issue any press releases or make public statements relating to the Agreement or the relationship between the Parties without the other Party’s review of and written consent to such press release or public statement. Such consent also applies to any subsequent press releases with respect to the same subject matter. |
| 9.6 | Suspension SPIL is entitled to suspend its services under any Agreement during the period that Partner is in breach of any provision of an Agreement and / or these Terms & Conditions. |
| 9.7 | Force Majeure. No Party shall be deemed in default hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including but not limited to: earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”). Each Party shall have the right to terminate the Agreement immediately upon written notice if any Force Majeure Event of another Party continues for more than thirty (30) days. |
| 9.8 | Modifications and Waivers. No failure or delay on the part of either Party in exercising any right, power or remedy under the Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Unless otherwise specified, any amendment, supplement or modification of or to any provision of the Agreement and these Terms & Conditions, any waiver of any provision of the Agreement and any consent to any departure by the Parties from the terms of the Agreement, shall be effective only if it is made or given in writing and signed by both Parties. |
| 9.9 | Independent contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, SPIL or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. |
| 9.10 | Unenforceability / invalid provisions. Any provision of these Terms & Conditions and/or an Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction and Parties shall in good faith negotiate to replace the invalid / unenforceable provisions with valid / enforceable provisions. |
| 9.11 | Applicable Law, Jurisdiction. These Terms & Conditions and the Agreement shall be governed by the laws of The Netherlands and submitted to the exclusive jurisdiction of the courts in The Netherlands. |
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| 12.1 | Program Listings within Platform. Partner will list the Programs on the Platform. Partner may, after consultation with SPIL refuse, suspend, or cease distributing or licensing any Programs if Partner determines, that such action is commercially appropriate, while continuing to provide customer support to those Users who have already purchased such Programs. Partner will notify SPIL within 1 business day of any suspension or cessation of advertising, distribution or licensing of any Programs. |
| 12.2 | Title. Partner and its affiliated developers will retain all title and Ownership in the Programs. Partner will be solely responsible for the content, quality and performance of the Programs and for any warranty, customer support, maintenance or other obligations related to the Programs. SPIL acknowledges that the Partner Marks and Partner Material are owned solely by Partner and except as expressly provided above, SPIL does not acquire any Ownership or other rights in the Partner Marks and Partner Material. SPIL will not remove, alter, or add to any Partner Marks, copyright notices, or other proprietary rights notices from the Programs without Partner’s express consent. |
| 12.3 | Relationships with Third Party Developers. Partner will have the control and responsibility for maintaining the existing Programs and relationships with any third Party developers. |
| 12.4 | User Support. Partner shall use its best efforts to provide User with adequate support. Thereto it will, at a minimum, provide email User support in at least both the English and Spanish languages and will guarantee to respond to User emails within 24-hours, by means of not-automatically generated emails. All customer service enquiries received by SPIL through the SPIL Site will be forwarded to the Partner by email for acknowledgement and resolution. Partner will respond to the User identifying this response as originating from the Platform powered by Partner. |
| 12.5 | Technical Support and Program Updates. Throughout the Term, Partner will provide SPIL with: (a) such technical support as SPIL may require from time to time; (b) all reasonable assistance required for SPIL to perform its obligations hereunder; and (c) timely Updates. |
| 12.6 | Taxes. With respect to the Revenue Share Partner will collect and remit to the appropriate taxing authority, or require the User to pay, all sales, use or similar taxes applicable. Except for the foregoing, each Party is solely and separately responsible for its own taxes, user fees, or similar levies. |
| 12.7 | Adherence to third parties´ guidelines. Partner shall with respect to White Label Platforms strictly adhere to the technical and other guidelines from providers of digital advertising solutions and technologies – companies such as AdLink, DoubleClick and the likes – required/obliged in order to be able/allowed to use these companies´ solutions and technologies. |
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These Terms & Conditions have been registered with the Court of Amsterdam on 3 January 2007 under number 1/2007