This GameSnacks for Developers Agreement (the "Agreement"), is entered into by the individual or entity accepting this Agreement ("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"), and is effective as of the date of acceptance by you (the "Effective Date"). This Google Service is a beta and Google may cancel it at any time. This Agreement supersedes all other agreements between the parties relating to its subject matter, except that any pre-existing license term for each Game will continue until its expiration, at which point the license provisions of this Agreement will apply.
1 Definitions
1.1 In this Agreement:
(a) "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 under the AdSense Terms.
(b) "AdSense Terms" means the terms governing your AdSense Account as available at https://adsense.google.com/adsense/terms or another URL that Google may provide.
(c) "Brand Elements" means trade name(s), trademarks, logos, domain names and other distinctive brand elements.
(d) "CCPA" means, as applicable: (i) the California Consumer Privacy Act of 2018, California Civil Code 1798.100 et seq. (2018), as amended; and (ii) any other applicable data protection laws modelled on the CCPA.
(e) "Confidential Information" means information that one party (or an affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
(f) "Developer Content" means the visual and audiovisual content, including Games and all related metadata and materials, made available from or by you to Google via the GameSnacks for Developers Service, and any Updates.
(g) "Game" means each HTML5 game and associated Developer Content that is uploaded to the GameSnacks for Developers Service by you or on your behalf.
(h) "GameSnacks for Developers Service" means the Google Service within the AdSense product via which Google permits you to upload Games and Developer Content, determine Game distribution settings, and make available and distribute Monetized Games.
(i) "GDPR" means, as applicable: (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, as amended; (ii) the UK’s General Data Protection Regulation (as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force); and (iii) any other applicable data protection laws modelled on the GDPR.
(j) "Google Services" means products and services operated by Google or its affiliates.
(k) "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.
(l) "Monetized Game" means a Game published for distribution and designated for monetization via the functionality of the GameSnacks for Developers Service.
(m) "Personal Data" has the meaning given to it in the GDPR.
(n) "Personal Information" has the meaning given to it in the CCPA.
(o) "Policies" means, collectively, the following policies (as such policies may be updated from time-to-time at the below links): (i) https://support.google.com/googleplay/android-developer/answer/13837496 ("Developer Program Policies"); (ii) https://developer.android.com/topic/google-play-instant/instant-play-games and https://support.google.com/googleplay/android-developer/answer/9900182 ("Play Instant Game Policies"); (iii) https://support.google.com/googleplay/android-developer/answer/9857753 ("Data Policies"); (iv) https://support.google.com/adsense/answer/48182 ("AdSense Policies"); and (v) any other applicable policies provided to you by Google.
(p) "Revenue Share Percentage" means, for each Monetized Game, 40% of Ad Revenues.
(q) "Third Party Property" means a Property (as defined in the AdSense Terms) operated by a third party where Games (and Ads, in the case of Monetized Games) appear.
(r) "Updates" means updates, refreshes, corrections, or modifications to Developer Content made by you or on your behalf during the Term.
(s) "Users" means users of Google Services, including users of Google APIs, and users of Third Party Properties where applicable.
(t) The words "include" and "including" means "includ(ing), but not limited to."
2 Developer Obligations and Restrictions
2.1 Use of the Developer Console. Your use of the user interface and functionality of the GameSnacks for Developers Service is subject to the Google Terms of Service at policies.google.com/terms or another URL that Google may make available ("Google Terms of Service"). If you have accepted this Agreement on behalf of a corporate entity, you are representing that you have the right to legally bind that entity to this Agreement.
2.2 Exclusion of GameSnacks Originals. Google may permit you to upload and manage content related to Games developed by you for Google’s ownership under a separate Statement of Work or similar agreement. The rights and obligations herein (e.g. licensing and Revenue Share Percentage payment terms) apply only to Developer Content that is not developed for, and owned by, Google.
2.3 Beta Service. The GameSnacks for Developers Service and the other services described here constitute a beta service, and this Agreement includes the H5 Games Ads (Beta) Policies at https://support.google.com/publisherpolicies/answer/11975916 (as updated from time to time by Google).
2.4 Hosting, Serving, Storage & Distribution. Subject to this Agreement and the Policies, Google has the right to host, store, display, and distribute Developer Content and Monetized Games via the GameSnacks for Developers Service.
2.5 Enforcement of Ownership Claims. If a third party provides Google with a claim of ownership of any material contained within Developer Content, then: (a) the Developer Content may be blocked or removed from the Google Services; and (b) if you dispute or wish to appeal the third party claim, you will participate in any reasonable procedures Google may establish to resolve the dispute.
2.6 Removal and Territorial Limitations. If Google determines that you have breached this Agreement or the Policies, or that Developer Content should not be publicly displayed (including in the case of material bugs or errors, or if the use of Developer Content or Monetized Games may cause harm to Google, Users, or third parties), Google may stop displaying, or may unpublish or otherwise remove, Developer Content on Google Services. The GameSnacks for Developers Service may also include functionality that permits you to specify in a metadata feed or other Google interface the territorial or other limitations for distributing Monetized Games.
2.7 Unpublishing Monetized Games. You may request Google to unpublish Monetized Games (removing them from distribution) through methods made available by Google. If you request that Google unpublish a Monetized Game, the Game will no longer be distributed on Third Party Properties and Google Services, and will no longer be monetized, from the date Google ceases distributing the Game until you choose to re-publish the Game. However, the Game and associated Developer Content will remain hosted on the GameSnacks for Developers Service and Google will retain all rights under the licenses granted in this Agreement.
2.8 User Video Recordings. Nothing in this Agreement restricts Google or users, which may access Developer Content on Google Services or Third Party Properties, 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 "User Video Recording(s)"). Google, the operator(s) of Third Party Properties and their users may monetize and commercialize all User Video Recordings, including by: (a) displaying advertising within User Video Recordings; and (b) displaying advertising next to User Video Recordings on app(s) or site(s) where the User Video Recordings may be distributed.
3 Licenses to Google
3.1 Developer Content License. During the Term, you grant Google a non-exclusive, worldwide, sublicensable (as described below), limited right and license under all applicable Intellectual Property Rights to exercise Google’s rights and fulfil its obligations under this Agreement and to use Developer Content on the Google Services to: (a) use, reproduce, modify (including to create derivative content), display, perform, and distribute the Developer Content in connection with Google Services (including to feature the Developer Content in marketing and advertising, such as blog posts and in advertising on third party sites and media and where such Google products or services are embedded in third party media or products), and (b) improve Google Services. This includes the right to distribute Monetized Games and associated Developer Content on Third Party Properties. The foregoing includes all necessary licenses to use the compositions and sound recordings of any music included in the Developer Content to host, index, display, perform, synchronize, and distribute Developer Content, and the right to modify Developer Content to the extent technically necessary to index and display Developer Content. Google has the right, but not the obligation, to host and distribute Games as described in this Agreement.
3.2 Brand Elements License. You grant Google a non-exclusive, limited, worldwide, royalty-free license to use any Brand Elements provided by you in connection with Developer Content to exercise Google’s rights and fulfill its obligations under this Agreement, and to include those Brand Elements in external marketing, partner lists, and product presentations. 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. Each party will adhere to the reasonable branding guidelines of the other party when making use of the other party’s Brand Elements.
3.3 Sublicensing. Google may sublicense the rights granted in this Agreement to:
(a) its affiliates (but only if (i) Google ensures that its affiliates are subject to the same obligations as Google; and (ii) Google is liable for its affiliates’ breach of those obligations)
(b) its Users (as necessary to permit them to use Google Services); and
(c) operators and owners of Third Party Properties.
3.4 Retention of Rights. As between the parties, and except as described in this Agreement:
(a) You retain all rights in Developer Content (other than Developer Content owned by Google); and
(b) Google retains all rights in (i) Google Services, (ii) Google-created content, and (iii) User-generated content.
3.5 No Other Restrictions. Nothing in this Agreement:
(a) requires Google to use any Developer Content in Google Services,
(b) restricts Google from using content it obtains elsewhere, or
(c) restricts Google from exercising any rights it has at law (including under the U.S. Copyright Act and equivalent laws worldwide).
3.6 Independent Development. Nothing in this Agreement is intended to create joint ownership of any Intellectual Property Rights. If you provide any suggestions or feedback regarding Google’s products or services ("Feedback"), Google (and those we allow) may use the Feedback without obligation to you.
4 Monetization and Payments
4.1 Monetization. In addition to all other uses contemplated by this Agreement, Google and its affiliates may commercialize and monetize the Developer Content including by: (a) displaying advertising (including in-game rewarded advertising) within Monetized Games and the gameplay experience; and (b) displaying advertising next to Monetized Games on app(s) or site(s) where the Monetized Games may be distributed. Google and its affiliates may determine the type, format, and frequency (as applicable) of ads and other forms of monetization available. By way of example, in some cases (e.g., because of technical or policy limitations), Ads may be limited to only those sold or provided by Google.
4.2 Revenue Sharing. Google or its affiliate(s) may retain a percentage of Ad Revenues related to distribution on Google Services or Third Party Properties and Google or its affiliate(s) will pay you an amount equal to the applicable Revenue Share Percentage attributable to a calendar month. Such Revenue Share Percentage represents your agreement as to the allocation of Ad Revenues for value of the services described and is the only amount to which you are entitled under this Agreement.
4.3 Payment Account Requirement. To earn or receive a Revenue Share Percentage, you must at all times have an active AdSense account associated with your GameSnacks for Developers Service user account(s) (an "AdSense Account") (or such other similar payment account as approved by Google). For purposes of this Agreement and your use of AdSense, each Monetized Game is deemed to be a "Property" under the AdSense Terms.
4.5 Payment Process; Taxes. Payments to you will be made, and applicable taxes and offsets treated, as stated in the AdSense Terms.
5 Developer Content Requirements
5.1 Delivery. You will deliver the Developer Content through the functionality of the GameSnacks for Developers Service, and according to any specifications or instructions from Google, including the guidelines given at the following URL: https://developers.google.com/gamesnacks/developer/requirements.
5.2 Compliance with Policies. At all times, the Developer Content will comply with the Policies. All references in the Policies to "apps" will, for purposes of your compliance with such Policies, refer to HTML5 games. All references in the Policies to "download" will, for purposes of your compliance with such Policies, refer to a web view of HTML5 games. All references in the Policies to "Google Play" or "Play Instant Games" will, for purposes of your compliance with such Policies, refer to "the GameSnacks for Developers Service." All references in the AdSense Policies to publishers will, for purposes of your compliance with such Policies, refer to you.
5.3 Child-Directed Content. You will not provide Google with any Developer Content that is directed to children as contemplated by applicable privacy laws.
5.4 Promotions. You will not include any promotions, sponsorships, or other advertisements as part of Developer Content. If any promotions, sponsorships, or other advertisements are included as part of Developer Content, Google may elect not to monetize content that would otherwise be subject to a revenue share, or may remove the relevant Developer Content.
5.5 Third Party Materials. "Third Party Materials" means any third party’s proprietary information or materials (including an individual’s name, likeness, photograph, voice, or image) or open source materials. If you use Third Party Materials in the Developer Content, you represent and warrant that you have the right to distribute those Third-Party Materials in the Developer Content. You will not incorporate any Third Party Materials that are not disclosed conspicuously to Users where required by the terms of their applicable licenses. You also represent and warrant that you will not include any viruses, spyware, trojan horses, or other malicious code of any kind in any Developer Content.
6 Confidentiality
The recipient will not disclose the other party’s Confidential Information, except to employees, affiliates, agents, professional advisors, or third-party contractors ("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. 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 other party, if permitted by law.
7 Developer Representations and Warranties
Developer represents and warrants that:
7.1 you are the owner of the Developer Content or otherwise have the right to grant to Google the rights granted in this Agreement without violating any rights of any third party;
7.2 any Update to Developer Content does not materially alter the nature of such content, including the subject matter or gameplay experience of the Games;
7.3 Developer Content will not contain any third party’s Personal Data or Personal Information;
7.4 the Developer Content does not and will not infringe any Intellectual Property Rights or other proprietary rights of any third party;
7.5 there is currently no pending or threatened claim or suit by any third party based on an alleged violation of such rights by you;
7.6 the Developer Content is free and clear from all liens and encumbrances whatsoever;
7.7 all information provided by you to Google is complete and accurate;
7.8 the Developer Content contains no trackers or data call functionality, viruses, worms or other hidden activation or deactivations devices and will not otherwise alter, damage, or erase any data or computer programs, replicate, transmit, or activate itself without control of a person operating computing equipment on which it resides, whether known or unknown to you;
7.9 the Developer Content contains no hidden files, key, node lock, time-out or other functions, whether implemented by electronic, mechanical, or other means, that restricts or may restrict use or access to the Developer Content based on residency on a specific hardware configuration, frequency of duration of use, or other limiting criteria; and
7.10 you have used and will continue to use reasonable care and skill in creating or collecting the Developer Content.
8 Defense of Third Party Legal Proceedings
8.1 Definitions. "Indemnified Liabilities" means (a) settlement amounts approved by the indemnifying party; and (b) damages and costs awarded in a final judgment against the indemnified part(ies) by a competent court. "Third Party Legal Proceeding" means any legal proceeding filed by a third party before a court or government tribunal (including any civil, administrative, investigative or appellate proceeding).
8.2 Scope. You will defend Google and its affiliates and indemnify them against Indemnified Liabilities in any Third Party Legal Proceeding to the extent arising from: (a) your breach or alleged breach of this Agreement; (b) claiming that use of Developer Content infringes or violates a third party’s intellectual property, publicity or other rights; or (c) a User’s use of any Game, including any allegation, actions, or claims in product liability, tort, contract, or equity. This indemnification obligation will not apply to the extent the underlying allegation arises from Google’s breach of this Agreement or from modifications or combinations to Developer Content that were not provided or authorized by you or your agent.
8.3 Conditions. The indemnified party has the right to approve controlling counsel, such approval not to be unreasonably withheld (and which approval may be withheld or withdrawn if there is a conflict of interest); the indemnified party may appoint its own non-controlling counsel, at its own expense; and any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
9 Liability
9.1 Definition. In this Section 9 (Liability), "Liability" means any liability, whether under contract, tort (including negligence), or otherwise and whether or not foreseeable or contemplated by the parties.
9.2 Limited Liabilities. Subject to Section 9.3 (Unlimited Liabilities):
(a) neither party will have any Liability arising out of or relating to this Agreement or the Developer Content for (i) lost revenues, profits, savings, or goodwill; (ii) indirect losses; (iii) special or incidental losses; or (iv) punitive damages; and
(b) each party's total Liability arising out of or relating to this Agreement or the Developer Content is limited to the greater of (i) US$10,000; or (ii) the Ad Revenues paid and payable to each party (as applicable) under this Agreement in the 12 months immediately preceding the date on which the Liability arose.
9.3 Unlimited Liabilities. 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, contractors, or agents;
(b) fraud or fraudulent misrepresentation;
(c) its payment obligations under this Agreement;
(d) breach of Section 6 (Confidentiality);
(e) breach of Section 7.3 (Personal Information/Personal Data);
(f) its obligations under Section 8 (Defense of Third Party Legal Proceedings); or
(g) matters for which Liability cannot be excluded or limited under applicable law.
10 Publicity
You may not make any public statement regarding this Agreement without Google’s prior written approval.
11 Term and Termination
11.1 Term. The term of this Agreement will start on the Effective Date and continue until terminated as described below (such period, the "Term").
11.2 Suspension of Access. In addition to Google’s other rights to suspend or terminate access to the GameSnacks for Developers Service, Google may without penalty suspend access to the GameSnacks for Developers Service:
(a) if you breach this Agreement;
(b) to investigate or remedy issues affecting any Google Service; or
(c) to comply with any applicable law.
11.3 Termination.
(a) Either party may terminate this Agreement for convenience on 30 days’ written notice to the other party.
(b) Google may terminate this Agreement immediately on giving notice to you, or with 30 days’ prior notice if required by applicable law: (i) for repeated violations of the Agreement; (ii) 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 Google Services); (iii) if Google is required to do so to comply with a legal requirement or a court order; (iv) if Google reasonably believes your conduct has created liability or harm to any User or other third party, or to Google or its affiliates; or (v) if you are in material breach of any of the provisions of this Agreement.
(c) This Agreement will additionally terminate immediately upon the termination of your AdSense Account.
11.4 Effects of Termination. On expiration or termination of this Agreement for any reason (contractual or otherwise):
(a) you will cease use of the GameSnacks for Developers Service;
(b) you will unpublish all Monetized Games through the functionality of the GameSnacks for Developers Service or such other means as provided by Google. If you fail to unpublish any Monetized Game or remove any Developer Content by the date of termination, Google itself will have the right to remove any or all of the Developer Content, and will have a 30-day wind-down period in which to continue to distribute and monetize the Games;
(c) any Developer Content that has not been removed, and any later use by you of the GameSnacks for Developers Service following termination of this Agreement, will be governed by the Google Terms of Service;
(e) Google will pay any outstanding amounts owed to you under this Agreement in accordance with the applicable provision(s) of the AdSense Terms;
(f) Sections 7 (Developer Representations and Warranties) through 12 (General) of this Agreement (and any other sections that under their terms or by implication ought to survive) will survive; and
(g) Google and its Users may continue to use Developer Content that was incorporated into fixed media in accordance with this Agreement, solely as incorporated in the fixed media, for as long as that fixed media exists. Examples of "fixed media" include screenshots of Google products or services in print or video, and other media that it would not be reasonably practical to recall.
12 General
12.1 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 you). 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).
12.2 Assignment. You may not assign or transfer any of your rights under this Agreement without Google’s prior written consent.
12.3 Independent Contractors. The parties are independent contractors.
12.4 Affiliates, Consultants, and Contractors. Google 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 Google. Google is liable for those parties’ acts and omissions.
12.5 Governing Law.
(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.
12.6 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.
12.7 Entire Agreement. This Agreement states all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter including any previous agreements governing licensing and distribution of the Games.
12.8 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.
12.9 No Third-Party Beneficiaries. Other than as expressly stated, this Agreement does not create any third-party beneficiary rights.
12.10 No Waiver. The failure of either party to enforce any provision of this Agreement will not constitute a waiver.
12.11 Severability. If it turns out that a particular term of this Agreement is not enforceable, the balance of this Agreement will remain in full force and effect.
12.12 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, pandemic, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
12.13 Communications. In connection with your use of the Services, we may contact you regarding service announcements, administrative messages, and other information. For information about how to contact Google, please visit our contact page.