This GameSnacks for Partners Distribution Agreement (this "Agreement") is entered into by the individual or entity accepting this Agreement ("Company," "you") and Google LLC, a Delaware limited liability company whose principal place of business is located at 1600 Amphitheatre Parkway, Mountain View, California 94043 ("Google") (each a "Party" and, collectively, the "Parties"), and is effective as of the date of acceptance by you (the "Effective Date"). This service is a beta and is subject to cancellation at any time in Google’s sole discretion.
1. Definitions.
1.1 "Ad" means an individual advertisement.
1.2 "Ad Revenues" means, for any period during the term of this Agreement, net revenues that are recognized by Google in connection with monetization of a Monetized Game and attributed to Ads in that period, as determined pursuant to the AdSense Terms.
1.3 "AdSense Terms" means the terms and conditions governing your AdSense Account as available at https://www.google.com/adsense/localized-terms or such other URL as Google may provide from time to time.
1.4 "Affiliate" means any entity that controls, is controlled by, or is under common control with, a Party, where "control" means ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in this company.
1.5 "Brand Elements" means, with respect to each Party, that Party’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand elements.
1.6 "Client Application Guidelines" means the policies available at the following link: https://support.google.com/adsense/answer/10926790, as may be updated from time-to-time.
1.7 "Company Partner" means for Partner Platform(s), the owner or operator (if not Company) of those Partner Platform(s), on whose behalf Company is distributing such Partner Platform(s).
1.8 "Confidential Information" means any information, data, or other materials provided by one Party to the other under or in connection with this Agreement that is (a) clearly and conspicuously marked as "confidential" or with a similar designation, (b) identified by the disclosing Party as confidential and/or proprietary before, during, or promptly after presentation or communication, or (c) disclosed in a manner in which the receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation "confidential" or any similar designation is used, including without limitation the specific terms of this Agreement and any such aspects of the GameSnacks Service.
1.9 "End User" means a human end user of a Partner Platform.
1.10 "Feedback" means any feedback, suggestions, improvements, ideas, concepts, or changes related to the subject matter of this Agreement provided by one Party to the other Party, excluding the disclosing Party’s Confidential Information.
1.11 "Games" means all games made available by Google to Company through the Google-defined distribution mechanism set forth in Section 3.1 (each a "Game").
1.12 "GameSnacks Branding Guidelines" means Google’s brand treatment guidelines for Game Center Content and Google Brand Elements related to the GameSnacks Service (and any content contained or referenced therein), as provided by Google to Company from time to time.
1.13 "Game Center" means the Google-provided interface accessed by End Users for the purpose of playing Games, as integrated into Company’s Partner Platform.
1.14 "Game Center Content" means the content, data, and information relating to the Game Center that are provided by Google to Company under this Agreement.
1.15 "GameSnacks Service" means, in aggregate, the GameSnacks HTML5 Games and services, Game Center Content, the delivery mechanism for Game Center Content as determined by Google in accordance with Section 3.1, and any GameSnacks-operated landing page, server, or Partner Console via which the Game Center Content is made available.
1.16 "Indemnified Liabilities" means any (a) settlement amounts approved by the indemnifying Party, (b) damages and costs in a final judgment awarded against the indemnified part(ies) by a competent court, and (c) reasonable attorney’s fees.
1.17 "Intellectual Property Rights" means all registered or unregistered intellectual property rights throughout the world, including rights in patents, copyrights, trademarks, trade secrets, designs, databases, domain names, and moral rights.
1.18 "Monetized Game" means a Game that is monetized by Google as described herein.
1.19 "Partner Console" means the user interface of the GameSnacks Service within Company’s AdSense Account, which is provided to Company for the purpose of accepting this Agreement, configuring the Game Center and GameSnacks Service, and receiving Game Center Content to the extent applicable.
1.20 "Partner Platform(s)" means the products and services that are developed, manufactured, distributed, or operated by or on behalf of Company or a Company Partner, that are approved by Google for distribution of the GameSnacks Service via the functionality of the GameSnacks Service.
1.21 "Partner Platform Specifications" means the technical and implementation specifications provided by Google to Company from time-to-time, including all information and requirements set out on the GameSnacks developer website at https://cdn.gamesnacks.com/documentation/gamesnacks_api_documenation.pdf (or other URL provided by Google), as updated by Google from time-to-time.
1.22 "Revenue Share Percentage" means, with respect to each Monetized Game, 60% of Ad Revenues.
1.23 "Territory" or "Territories" means the country or countries in which distribution of Partner Platforms, and access to the GameSnacks Service by End Users, is permitted under all applicable laws, rules, and regulations.
1.24 "Third Party Legal Proceeding" means any formal legal proceeding filed by a third party that is not an Affiliate of either Party before a court or government tribunal (including any civil, administrative, investigative or appellate proceeding).
1.25 The words "include" and "including" will not limit the generality of any words preceding them.
2. Licensed Rights.
2.1 Use of the Partner Console. Your use of the user interface and functionality of the Partner Console is subject to the Google Terms of Service set out at policies.google.com/terms or such other URL as Google may make available from time to time ("Google Terms of Service").
2.2 License Grant. Subject to Company’s compliance with the terms and conditions of this Agreement, Google grants, under Google’s Intellectual Property Rights, to Company a non-transferable (except as permitted herein), non-exclusive, royalty-free, non-sublicensable license, during the Term, to link to the GameSnacks Service in the Territories, as integrated into a Partner Platform, for distribution to End Users.
2.3 Restrictions. Company will not, and will not allow any third party (including any Company Partner) to: (a) disassemble, decompile, reverse engineer, or otherwise attempt to learn the source code or algorithms underlying the GameSnacks Service or Game Center, (b) create or improve upon derivative works that incorporate software, technology, or any other Intellectual Property Rights from or based on the Game Center, (c) provide End User access to the Game Center outside the Territories, (d) insert any viruses, worms, time bombs, or other code into a Partner Platform that may cause the Game Center to cease operating, or to damage, interrupt, or interfere with the Game Center Content, (e) use, reproduce, copy, sell, resell, or exploit any GameSnacks Service or the Game Center Content, or any parts thereof, for any purpose other than for which the Game Center and/or GameSnacks Service are made available hereunder, or (f) remove or change any branding or links included in any Game Center Content or the GameSnacks Service.
2.4 Compliance with Laws. Company will comply with all applicable laws, rules, and regulations, including (a) all applicable privacy laws, rules, and regulations, (b) the Export Administration Regulations maintained by the U.S. Department of Commerce, (c) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (d) the International Traffic in Arms Regulations maintained by the U.S. Department of State. In addition, Company will ensure that each Partner Platform is not directed to children as defined under applicable privacy laws, including the Children’s Online Privacy Protection Rule, as amended.
2.5 Additional Licenses. Portions of the GameSnacks Service may be subject to notices and licenses from communities and third parties that govern the use of those portions, and any licenses or access granted hereunder do not alter any rights and obligations Company may have under such notices and licenses; provided, however, the disclaimers of warranty and limitation of liability provisions in this Agreement will apply to the GameSnacks Service.
2.6 Regulations and Third Party Authorization. As between the Parties, Company is responsible for acquiring any third party rights, authorizations, and licenses that may be required with respect to Partner Platforms (including without limitation licenses required to implement features in each Partner Platform) and will ensure their manufacture, use, distribution, and sale complies with applicable foreign, federal, state, and local laws, rules, and regulations.
2.7 End User License. For clarity, nothing in the Agreement restricts End Users, which may access Games on Google propert(ies), the Partner Platforms, and/or third party propert(ies), from creating or developing video recordings of Game gameplay, including creating derivative works of such video recordings (such video recordings and derivatives of video content, the "End User Video Recording(s)"). In addition to all other uses contemplated by the Agreement, Google, its third party partners, and/or End Users may monetize and/or commercialize all End User Video Recordings, including, without limitation, by: (a) displaying advertising within End User Video Recordings, and (b) displaying advertising next to End User Video Recordings on app(s) or site(s) where the End User Video Recordings may be distributed.
3. GameSnacks Service.
3.1 Integration of Game Center Content. Company may, in its discretion, integrate the GameSnacks Service into the Partner Platform(s) by embedding the Game Center Content and/or applicable URL into the Partner Platform(s), as delivered by Google. Company will only access (or attempt to access) the Game Center Content for the purposes of this Agreement, including making the Game Center Content available to End Users. For clarity, Google has no obligation, but may, in its discretion, provide the Game Center Content to the Company under this Agreement.
3.2 Compliance. Company will ensure that each Partner Platform that provides access to the GameSnacks Service complies with: (a) the Partner Platform Specifications, (b) the Client Application Guidelines, (c) the AdSense policies, available at https://support.google.com/adsense/answer/48182 (the "AdSense Policies"), (d) the H5 games policies available at https://support.google.com/publisherpolicies/answer/11975916 (the "H5 Games Policies"), and (e) the Service Policies available at https://support.google.com/adsense/answer/13744587, as each may be updated by Google from time-to-time ((a)-(e) are collectively, the "Policies"). All references in the AdSense Policies to publishers will, for purposes of Company’s compliance with such Policies, refer to Company. All references in the AdSense Policies to sites or apps will, for purposes of Company’s compliance with such Policies, refer to Partner Platforms. Company represents and warrants that Google’s use and distribution of the Games on the Partner Platforms complies with all applicable laws, rules, and regulations. Company will comply with the terms associated with its AdSense Account including, for the avoidance of doubt, all provisions related to user privacy and consents. Each party will comply with the Google Ads Controller-Controller Data Protection Terms available at: https://privacy.google.com/businesses/controllerterms/, which may be updated from time to time.
3.3 Partner Platforms. Google may revoke the licenses herein with respect to any Partner Platform at Google’s sole discretion. Upon Google’s request, Company will provide to Google samples or demos of each Partner Platform in the quantity and frequency requested, along with evidence that it has completed any criteria Google may request. Company will also provide to Google service-related information reasonably requested by Google, such as technical specifications, change lists, and other assistance reasonably necessary to allow Google to review and approve the implementation of the GameSnacks Service (including initiating any optional service activations required, if any). Where Google specifies a specific version of the GameSnacks Service to be distributed in a certain Territory or for a certain Partner Platform, Company will access and provide access only to such version within such Territory or via such Partner Platform.
3.4 Branding. Company will include the Google Brand Elements on the user interface rendering, packaging (if applicable), and marketing materials of Partner Platforms as mutually agreed in writing with Google, and in accordance with the GameSnacks Branding Guidelines. All Game Center Content featured in each Partner Platform must be correctly attributed, including by showing any required splash screen, as such ‘splash screen’ is provided by Google to Company in advance (and as updated by Google), when a Game loads in each Partner Platform. Except as set forth in this Agreement, Company will not use Google Brand Elements without Google’s prior written consent.
3.5 Reports and Analytics. Each Party will use commercially reasonable efforts to provide reports and analytics data during the Term in a manner, frequency, and format determined by Google. Such reports will include, at minimum, the elements listed at https://support.google.com/adsense/answer/13744483. Google will not be obligated to deliver such reporting in the event of technical malfunctions in Google’s systems, or any other circumstances beyond Google’s reasonable control (including, without limitation, ISP malfunctions).
3.6 End User Support. As between the Parties, Company is solely responsible for customer care and support of its End Users with respect to any Partner Platforms.
3.7 Updates. Google in its sole discretion may update or modify the GameSnacks Service (including the Game Center Content), and add or remove any Game, from time-to-time. Company will promptly integrate any updated version of the Game Center Content into all Partner Platforms after receiving notice from Google to use the updated version of the Game Center Content.
4. Monetization and Payments.
4.1 Monetization. In addition to all other uses contemplated by the Agreement, Google may commercialize and/or monetize the Games including, without limitation, by: (a) displaying advertising (including in-game rewarded advertising) within the Games and/or the game play experience, and (b) displaying advertising next to Games on app(s) or site(s) where the Games may be displayed (excluding, if applicable, directly on the Partner Platforms). For clarity, nothing in this Agreement limits Google from displaying advertising on its own platforms or sites, including, if the Games run on a linked Google-hosted platform or site, on the same page or near the Games on such Google-hosted site or platform. In addition, nothing in this Agreement limits Company from displaying advertising on the Partner Platform(s), including, if the Games run on the Partner Platform(s) directly, on the same page or near the Games on such Partner Platform(s). Google may receive compensation or revenue, including advertising revenue and direct revenue from End Users for in-game purchases, in connection with commercializing and/or monetizing the Games. Subject to Company’s compliance with the other provisions of this Agreement, Company may:
(a) charge fees to access a Partner Platform,
(b) show Game Center Content on an ad-enabled Partner Platform (such as an ad-enabled app, blog, or website), subject to Section 4.5 (Prohibited Commercial Uses) below, and
(c) place Company’s own branding on the Partner Platform, as long as it does not interfere with the display of any Game Center Content or with any Google Brand Elements.
4.2 Revenue Sharing. Company agrees that Google may retain a percentage of Ad Revenues and Google will pay Company an amount equal to the Revenue Share Percentage attributable to a calendar month. The Revenue Share Percentage represents the Parties’ agreement as to the allocation of Ad Revenues for value of the services described herein and are the only amounts to which Company is entitled under the Agreement. Google may update the Revenue Share Percentage from time to time upon notice to you.
4.3 Payment Account Requirement. In order to earn or receive a Revenue Share Percentage under this Agreement, Company must at all times have an active AdSense account associated with its GameSnacks Service user account(s) (an "AdSense Account") (or such other payment method as approved by Google). You will comply with all provisions of the terms associated with your AdSense Account, including the AdSense Terms. For the purposes of this Agreement and Company’s use of AdSense, each Partner Platform is deemed to be a "Property" under the AdSense Terms.
4.4 Payment and Taxes. Payments to Company will be made, and taxes thereon treated, as specified in the AdSense Terms.
4.5 Prohibited Commercial Uses. In the absence of Google’s prior written approval, Company will not (or allow those acting on Company’s behalf to) use the GameSnacks Service to sell advertising, sponsorships, or promotions on or through the Game Center Content (including pop-up ads or ads linked to from the Game Center Content). Company will not monetize the GameSnacks Service or Game Center Content in any way unless mutually agreed upon with Google in advance in writing.
5. Intellectual Property Rights.
5.1 Ownership. As between the Parties, (a) Google retains all right, title, and interest, including all Intellectual Property Rights, in and to the GameSnacks Service and Google’s Brand Elements, and Google reserves all rights not expressly granted herein, and (b) Company retains all right, title, and interest, including all Intellectual Property Rights, in and to Company owned-and-operated Partner Platforms (e.g., all content and services available thereon) other than the GameSnacks Service, and Company reserves all rights not expressly granted herein, provided that, each Company Partner may retain right, title, and interest, including Intellectual Property Rights, in and to such Company Partner’s owned-and-operated Partner Platforms other than the GameSnacks Service.
5.2 Brand Elements. Except to the limited extent expressly provided in this Agreement, neither Party grants, and the other Party does not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Elements of the first Party, and all rights not expressly granted herein are deemed withheld. All use by one Party of the Brand Elements of the other Party (including any goodwill associated therewith) will inure to the benefit of such other Party. A Party may revoke the rights granted herein to use its Brand Elements upon providing the other Party with written notice thereof and a reasonable period of time to cease such usage. Each Party will adhere to the reasonable branding guidelines of the other Party when making use of the other Party’s Brand Elements.
5.3 Independent Development. The Parties agree that nothing in this Agreement is intended to create joint ownership of any Intellectual Property Rights. Each Party acknowledges and agrees that the other Party may independently create content and other products and services that may be similar to or competitive with such Party and its content, and nothing in this Agreement will be construed as restricting or preventing each Party from creating and fully exploiting their own content and other items, without any obligation to the other Party, provided that no Confidential Information of the other Party was used in such creation. The Parties agree and acknowledge that any Feedback is provided voluntarily by Company. If Company provides Google with Feedback, Company hereby grants to Google a perpetual, irrevocable, royalty-free, worldwide right to use, disclose, and exploit such Feedback in connection with Google products and services.
5.4 Non-Assertion. During the Term, Company and all Company Partners will not assert an Intellectual Property Right infringement claim against Google based on or arising from any use or distribution of the GameSnacks Service.
6. Confidentiality.
6.1 Confidentiality Obligations.
(a) The recipient will not disclose the other Party’s Confidential Information, except to employees, affiliates, agents, or professional advisors ("Delegates") who need to know it and who have a legal obligation to keep it confidential. The recipient will use the other Party’s Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect the Confidential Information. Any act or omission by any Delegate that would be a breach of this Agreement if performed or not performed by the recipient will be deemed a breach by the recipient. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. The recipient may disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law.
(b) Except for the limited use rights under this Agreement, neither Party acquires any right, title, or interest in the other Party's Confidential Information. The recipient may use Residuals for any purpose (including to acquire, develop, or maintain products and services), but this right to use Residuals does not represent a license. "Residuals" means information that is retained in the unaided memories of recipient’s Delegates who have accessed discloser’s Confidential Information in accordance with this Agreement. Memory is unaided if the Delegate has not intentionally memorized the Confidential Information to use or disclose it.
6.2 Exceptions. The obligations under Section 6.1 (Confidentiality Obligations) do not apply to information that: (a) is or becomes a part of the public domain through no act or omission of the receiving Party, (b) was in the receiving Party's lawful possession prior to disclosure without confidentiality obligations or use restrictions and was not obtained by the receiving Party either directly or indirectly from the disclosing Party, (c) is rightfully given to the receiving Party by a third party without confidentiality obligations or use restrictions, or (d) the receiving Party can adequately demonstrate was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
6.3 Publicity. Neither Party may issue any press releases, announcements, or other marketing, advertising, or promotional materials related to this Agreement or referencing or implying the other Party or its Brand Elements without the prior written approval of the other Party.
7. Verification and Audit.
Company will provide Google with reasonable access to the relevant Company records and facilities for purposes of verifying Company’s compliance with the privacy and data protection provisions of this Agreement during the Term and for a period of 12 months after its expiration or termination.
8. Term and Termination.
8.1 Term. This Agreement is effective as of the Effective Date and remains in effect until terminated (the "Term").
8.2 Suspension of Access to GameSnacks Service. The Parties acknowledge and agree that circumstances might arise that require Google to suspend Company’s or a Partner Platform’s access to the GameSnacks Service. Notwithstanding any other provisions of this Agreement (but without prejudice to Google’s other rights to suspend or terminate access to the GameSnacks Service), Google may without penalty suspend access to the GameSnacks Service by Company and on any Partner Platform:
(a) if Company or a Company Partner is in breach of this Agreement;
(b) to investigate or remedy issues affecting the GameSnacks Service; or
(c) to comply with any applicable law.
8.3 Suspension of Specific Game Center Content. The license granted with respect to each Game or element of Game Center Content will terminate, with immediate effect, if Google removes such Game or Game Center Content from the GameSnacks Service for any reason whatsoever. In such case, Company will remove such specific Game or Game Center Content (e.g., links, assets, etc.) within twenty-four (24) hours of initial notice by Google. Google is not obliged to make, or continue to make, any Game Center Content available in all or any jurisdictions or Territory or to Company throughout the Term.
8.4 Termination by Google. Google may terminate this Agreement immediately on giving notice to you, or with 30 days’ prior notice if required by applicable law: (a) for repeated violations of the Agreement; (b) for a single case of severe abuse (e.g., because of unlicensed, illicit, or inappropriate content, in instances of fraud or spam, or to protect the security of the GameSnacks Service); (c) if Google is required to do so to comply with a legal requirement or a court order; (d) if Google reasonably believes your conduct has created liability or harm to any End User or other third party, or to Google or its affiliates; or (e) if you are in material breach of any of the provisions of this Agreement. Google also may terminate this Agreement immediately upon written notice if Company, a Company Partner, or their affiliate(s) assert an Intellectual Property Rights infringement claim against Google or a third party based on or arising from any use or distribution of the GameSnacks Service.
8.5 Automatic Termination. This Agreement will be deemed to have terminated with immediate effect (a) if you close your AdSense Account or if your AdSense Account is closed by Google (e.g. if it remains inactive for a period of 6 or more consecutive months); or (b) if you terminate your use of the “AdSense Labs Games by GameSnacks” feature (e.g. via flipping a toggle to disable autogames) and have not accepted this Agreement otherwise through the Partner Console.
8.6 Termination by Either Party. Either Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party for any reason or no reason.
8.7 Survival. Sections 1 (including all subsections), 2.4, 2.7, 4.4, 5 (including all subsections), 6 (including all subsections), 8.8, 9, and 11 through 13 (including all subsections) will survive any termination or expiration of this Agreement.
8.8 Effects of Termination. On expiration or termination of this Agreement for any reason (contractual or otherwise):
(a) all rights and licenses granted under this Agreement will immediately cease;
(b) Company will cease using, and will delete all Game Center Content in its possession or control, including from Company’s servers, with the exception of any content created or generated by End Users of the Partner Platforms prior to the date of termination;
(c) Company will immediately discontinue all activities authorized hereunder related to the GameSnacks Service; and
(d) upon request by the other Party, each Party will promptly destroy all copies of Confidential Information and related components or technology in its possession or control.
9. Representations and Warranties; Disclaimers; Remedy.
9.1 Representations and Warranties. Each Party represents and warrants that (a) it has full power and authority to enter into this Agreement, and (b) the execution and delivery of this Agreement, and the performance of its obligations hereunder, will not constitute a breach or default of, or otherwise violate, any agreement to which such Party is a party. In addition, Company represents and warrants that the Partner Platforms do not infringe the Intellectual Property Rights of any third party.
9.2 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, THE GAMESNACKS SERVICE IS PROVIDED "AS IS" AND GOOGLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10. Remedy.
If the GameSnacks Service or Google Brand Elements are alleged to infringe the rights of a third party, Google may, at its option and expense, (a) procure the right to continue providing the GameSnacks Service or Google Brand Elements, (b) modify or replace the GameSnacks Service without materially reducing its functionality, or (c) if neither of the above is commercially reasonable, terminate Company’s continued distribution of or access to any parts of the GameSnacks Service or Google Brand Elements which infringe the rights of a third party.
11. Defense of Third Party Legal Proceedings.
Company will defend Google and its Affiliates and indemnify them against Indemnified Liabilities in any Third Party Legal Proceeding to the extent arising from: (a) Company’s or a Company Partner’s breach or alleged breach of this Agreement, (b) any allegation related to Company’s or a Company Partner’s advertising, marketing, or promotion of any Partner Platforms not approved by Google as required by this Agreement, including any improper or unauthorized representations, warranties, or misrepresentations made by Company or a Company Partner regarding the GameSnacks Service, or (c) an End User’s use of any Partner Platform (or application installed thereon), including any allegation, actions, or claims in product liability, tort, contract, or equity.
12. Limitation of Liability.
12.1 NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR:
(a) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS;
(b) FRAUD OR FRAUDULENT MISREPRESENTATION;
(c) BREACHES BY COMPANY OF SECTION 2 (LICENSED RIGHTS) OR SECTION 3.2 (COMPLIANCE);
(d) COMPANY’S OBLIGATIONS UNDER SECTION 11 (DEFENSE OF THIRD PARTY LEGAL PROCEEDINGS);
(e) BREACH OF SECTION 6 (CONFIDENTIALITY); OR
(f) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12.2 (A) NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE); AND (B) SUBJECT TO SECTION 12.1 AND EXCEPT FOR COMPANY’S OBLIGATIONS UNDER SECTION 11, NEITHER PARTY’S AGGREGATE LIABILITY (WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED $100,000 USD.
12.3 SUBJECT TO SECTION 12.1, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S EXCLUSIVE REMEDY FOR BREACHES OF THIS AGREEMENT WILL BE MONETARY DAMAGES, EXCEPT THAT EITHER PARTY MAY SEEK INJUNCTIVE RELIEF IN CONNECTION WITH BREACHES OR POTENTIAL BREACHES OF OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY).
12.4 Allocation of Risk. The Parties agree that (a) the mutual agreements made in this Section 12 reflect a reasonable allocation of risk, and (b) each Party would not enter into the Agreement without these limitations on liability.
13. General.
13.1 Governing Law; Dispute Resolution.
(a) If your principal place of business is located in the United States or Canada: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GAMESNACKS SERVICE WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
(b) If your principal place of business is located in a country other than the United States or Canada, unless prevented by applicable laws: (i) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GAMESNACKS SERVICE ("Dispute") WILL BE GOVERNED BY THE LAWS OF CALIFORNIA, USA, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES. (ii) The Parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement ("Rules"). (iii) The Parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA. (iv) Any Party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in this Agreement. (v) Any Party may petition any competent court to issue any order necessary to protect that Party’s rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The Parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Agreement. (vi) The arbitral award will be final and binding on the Parties and its execution may be presented in any competent court, including any court with jurisdiction over any Party or any of its property. (vii) Any arbitration conducted under this Agreement will be considered confidential information, including the existence of the arbitration, any information disclosed during it, and any oral communications or documents related to it. The Parties may also disclose such information to a competent court as may be necessary to file any order or execute any arbitral decision, but the Parties must request that those judicial proceedings be conducted in camera (in private). (viii) The Parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing Party’s obligation to reimburse the amount paid in advance by the prevailing Party for these fees. (ix) Each Party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
13.2 Notices. All notices of termination or breach must be in English, in writing, and addressed to the other Party’s Legal Department (in the case of notices to Google) or primary contact (in the case of notices to Company). The address for notices to Google’s Legal Department is legal-notices@google.com. All other notices must be in English, in writing, and addressed to the other Party’s primary contact. All notices to Google must be sent with copy to gamesnacks-notices@google.com. Emails are written notices. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
13.3 Affiliates, Consultants, and Contractors. Either Party may use its affiliates, consultants, and contractors to exercise its rights and fulfill its obligations under this Agreement, but only if those parties are subject to the same obligations as the contracting Party. The contracting Party is liable for those parties’ acts and omissions.
13.4 Assignment. Neither Party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee agrees in writing to be bound by the terms of this Agreement, (b) the assigning Party remains liable for obligations under this Agreement if the assignee defaults on them, and (c) the assigning Party has notified the other Party of the assignment. Any other attempt to assign is void.
13.5 Change of Control. If Company experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) Company will give written notice to Google within 30 days after the change of control; and (b) Google may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.
13.6 Export Compliance. Each Party will comply with all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations maintained by the U.S. Department of Commerce; (b) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control; and (c) the International Traffic in Arms Regulations maintained by the U.S. Department of State.
13.7 Entire Agreement. This Agreement states all terms agreed between the Parties and supersedes all other agreements between the Parties for use of the GameSnacks Service. If Company has previously executed a direct agreement with Google for distribution of Monetized Games through the GameSnacks Service, then any acceptance of this Agreement while accessing the Partner Console will be superseded by such previous agreement. From time to time the Parties may agree to supplemental terms in order to govern Company's participation in certain features related to the GameSnacks Service.
13.8 No Sub-syndication. Company may not resell, sublicense, or sub-syndicate the GameSnacks Service.
13.9 Force Majeure. Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
13.10 No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
13.11 No Agency. The Parties are independent contractors. This Agreement does not create any agency, partnership or joint venture between the Parties.
13.12 No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
13.13 Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will govern.
