Draft

M:8910860_1 HPC

Game Publishing Agreement

Elliott James Bailey (ABN 54 129 220 804) trading as Lock, Paper, Scissors

[Designer] (ABN .. ... ... ...)

This Game Publishing Agreement is dated / / 2017

Parties:

Elliott James Bailey (ABN 54 129 220 804) trading as Lock Paper Scissors Publishing of 123 Millswyn Street, South Melbourne 3205, Victoria Australia (Publisher)

[insert Designer name] [insert ABN] of [insert address] (Designer)

Introduction:

A The Publisher is engaged in the business of game publishing, the marketing and promotion of games, the administration of game publishing rights and related activities.

B The Designer is the designer of [insert game details] (Game).

C The Designer wishes the Publisher to provide game publishing services in respect of the Game, and the Publisher has agreed to provide such services to the Designer on the terms and conditions set out in this agreement (Agreement).

It is agreed:

1. Game Publication

The Publisher will publish the Game, created by the Designer on the terms set out below.

2. Term

The term of this Agreement will commence on the date that it is signed by both parties and will continue for a term of [insert years/ for the term of the copyright in the Game], unless terminated earlier under clause 14 (Term). The Term may be extended by agreement between the parties in writing.

3. Designer

Where Designer refers to more than one person, such persons will be jointly and severally responsible for all duties, obligations, and covenants under this Agreement, and will share equally in all royalties and other amounts to be paid under this Agreement, unless otherwise specified in writing signed by all parties.

4. Grant of licence

(a) In exchange for the valuable consideration described in this Agreement, the Designer grants the Publisher an irrevocable, perpetual, worldwide licence to print, publish, distribute and sell the Game, and to use the Game for advertising and press purposes (Licence).

(b) The Licence will be exclusive to the Publisher for an initial six (6) month period from the date of the launch of the Game (Exclusive Period).

(c) After the Exclusive Period, the License will continue on a non-exclusive basis.

(d) During this Exclusive Period, the Designer is able to use the Game for its own internal or personal use, as well as in accordance with clause 11.2.

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5. Publisher’s Sale Price

The Publisher’s launch price will be [$19.99 USD] (Initial Sale Price). Any adjustments made to the Initial Price, will be at the discretion of the Publisher.

6. Delivery of Game

(a) The Designer agrees to deliver the Game in the English language in its entirety to the Publisher no later than [insert date of Game delivery] (Initial Delivery Date) in either of the following formats:

(i) A game kit exported and ready to print as either a 4x6 inch jpg, 1440 pixels wide (preferred) and a letter sized pdf that has 4 slides on one page for home printing; or a full page US letter as a pdf.

(ii) A designer kit (optional but recommended) which consists of a PowerPoint file that can be edited and modified, to allow players to customize the experience before printing.

(b) The Designer agrees to deliver the Game using fonts that are available free of charge under a commercial use licence.

(c) The Designer also agrees to provide the following:

(i) A setup guide in a shared Google document which includes a section entitled ‘frequently asked questions’;

(ii) A media pack for promotional purposes that includes the following:

(A) Header image, of 800x800 pixels. (See below image as an example).

(B) Ten (10) photos of the printed pack, to be used for promotional purposes, at a resolution of 1600 pixels wide. (See below images for examples)

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(iii) An introductory video (optional but useful);

(iv) Game details including team size, difficulty, and age range;

(v) A custom Spotify playlist designed for the Game. Including a link to the playlist;

(vi) An exported and printable version of game;

(vii) Any associated art (optional but recommended).

7. Intellectual property

For the purposes of this Agreement, Intellectual Property Rights include includes business names, copyrights, and all rights in relation to inventions, patents, registered or unregistered trade marks (including service marks), registered designs, and semi-conductor and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The Designer remains the owner of all Intellectual Property Rights authored by the Designed in respect of the Game.

8. Publisher’s Rights

8.1 Represent the Game

The Designer appoints the Publisher to represent the Game throughout the Territory.

9. Consideration

9.1 Definitions

For the purposes of clause 9 and 10 the following terms are defined

(a) “Edition” means the Game as published in any particular content, length, and format including Electronic Editions. If the Game is materially revised or redesigned in any manner, or changed in length or content, then the Game as revised will be considered a new Edition for purposes of this clause.

(b) “Electronic Edition” means any Edition of the Game that is sold, distributed, or accessed in an electronic or digital format, whether .pdf, Mobi, ePub, or any other electronic or digital format now known or hereafter discovered or created, using any process or technology for retrieving, transmitting, displaying, or delivering electronic or digital content.

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(c) “Net Revenues” means money actually received by the Publisher from the sale of copies of the work, after deduction of fees (subject to change) and commissions, currency exchange discounts, and costs of collection.

(d) “Net Copies Sold” means any and all copies of the Game in any Publisher’s Edition actually sold and delivered, net of returns, damaged or spoiled copies, promotional and review copies, and Designer’s copies (whether free or purchased by Designer).

9.2 Advance Against Royalties

No advance against royalties will be paid to the Publisher.

9.3 Royalties on Publisher’s editions

The Publisher will credit the Designer’s account with a royalty of 70% of Net Revenue on Net Copies Sold paid in accordance with clause 10.1(a).

10. Accounting

10.1 Reports and Payments

(a) The Publisher will render to the Designer a statement of Net Copies Sold and Net Revenues from the sale of Publisher’s Editions and other exploitation and disposition of rights to the Game, and other credits and debits relating to the Game and the rights granted in this Agreement, and pay the Designer any amount(s) then owing, on or before fourteen (14) days after the end of the prior month (inclusive of the 14th day).

(b) The Publisher will have the right to offset against future payments for any overpayment of royalties, and any and all costs, charges, or expenses which the Designer is required to pay or reimburse the Publisher under this Agreement, and any amounts owing the Publisher under any other agreement between the Publisher and the Designer.

10.2 Reserve Against Returns

The Publisher will have the right to allow for a reasonable reserve against returns. If royalties have been paid on copies that are thereafter returned, then the Publisher will have the right to deduct the amount of such royalties on such returned copies from any future payments under this or any other Agreement. The reserve against returns may not exceed 15% of earned royalties in any accounting period, and the reserve may be held for one accounting period only.

10.3 Audit Rights

(a) The Designer will have the right, upon reasonable notice and during usual business hours but not more than once each year, to engage a certified public accountant to examine the

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books and records of the Publisher relating to the Game at the place where such records are regularly maintained. Any such examination will be at the sole cost of the Designer.

(b) Statements rendered under this Agreement will be final and binding upon the Designer unless the Designer sets forth the specific objections in writing and the basis for such objections within 6 months after the date the statement was rendered.

11. Publishing and Distribution

(a) The Publisher will have the right to edit and revise the Game for any and all uses contemplated under this Agreement (Revisions), and the Designer will have the right to review and alter the Revisions so that the edited Game is reasonably and substantially acceptable to the Designer. If the Revisions are material, the Publisher reserves the right to invoice the Designer for the cost of completing such work, subject to the Designer’s agreement.

(b) Any Intellectual Property Rights in the Revisions will be assigned to the Designer upon payment of any invoice referred to in clause 11.1(a) (or if no invoice is to be issued by the Publisher, automatically).

(c) The Publisher will have the right to manufacture, distribute, advertise, promote, and publish the Game in a style and manner which the Publisher considers appropriate, including the retail price of the Game. Notwithstanding any editorial changes or revisions by the Publisher, the Designer’s warranties and indemnities under this Agreement will remain in full force and effect.

(d) The Publisher agrees that the Game, if published, will be published within 3 month of the Final Delivery Date, except where the date of publication may be extended by forces beyond Publisher’s control.

11.2 Advertising and Promotion

The Publisher will consult with the Designer and seek the Designer’s advice and ideas concerning the time, place, method, and manner of advertising, promotion, and other exploitation of the Game, including, but not limited to, game stores and trade distribution, online marketing, special sales, media reviews, and publicity; however the Publisher will have the right to make final decisions in these matters.

11.3 Designer’s Copies

The Designer may distribute copies of the Game, free of charge or other benefit, for personal and marketing use and to send to persons who have endorsed, contributed to, or otherwise supported the Game. On copies of the Game purchased or downloaded by the Designer, no royalties will be paid to the Designer, no credit or payment will be given for any copies returned to the Publisher, and the Designer’s purchases will be excluded in computing the Net Copies Sold. This will be managed via:

(a) Fifty (50) 100% discount codes for free kits.

(b) Fifty (50) 50% discount codes.

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11.4 Use of Designer’s Name and Likeness

The Publisher will have the right to use, and to license others to use, the Designer’s name, image, likeness, and biographical material for advertising, promotion, and other exploitation of the Game and the other rights granted under this Agreement.

11.5 Revised Editions

The Designer agrees to revise the Game as the Publisher may consider appropriate during the Term of this Agreement. The provisions of this Agreement will apply to each revision of the Game by the Designer, which will be considered a separate work, except that the Game of each such revision will be delivered to the Publisher within a reasonable time after the Publisher’s request for such revision.

12. Copyright

12.1 The Publisher must ensure that:

(a) a copyright notice in the Designer’s name, in a form and place that the Publisher reasonably believes to be in compliance with the Universal Copyright Convention appears on all versions of the Game;

(b) the Designer’s rights in the Game are identified on every electronic copy of the Game; and

(c) the name of the Designer appears prominently on the cover of the Game.

12.2 Additional Documents

The Designer will execute and deliver to the Publisher any and all documents that the Publisher considers necessary or appropriate to evidence or effectuate the rights granted in this Agreement, including but not limited to the Instrument of Recordation attached as an Exhibit to this Agreement.

12.3 Copyright Infringement

(a) If, at any time during the term of this Agreement, a claim arises for infringement or unfair competition as to any of the rights that are the subject of this Agreement, the parties may proceed jointly or separately to prosecute an action based on such claims.

(b) If the parties proceed jointly, the expenses and recovery, if any, will be shared equally by the parties.

(c) If the parties do not proceed jointly, either or both parties will have the right to proceed separately, and if so, such party will bear the costs of litigation and will own and retain any and all recovery resulting from such litigation.

(d) If the party proceeding separately does not hold the record title of the copyright at issue, the other party consents that the action be brought in his, her, or its name.

(e) Notwithstanding the foregoing, the Publisher has no obligation to initiate litigation on such claims, and will not be liable for any failure to do so.

13. Covenants and warranties

13.1 Publisher warranties

The Publisher covenants and warrants with and to the Designer that:

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(a) the Publisher is legally-entitled to enter into this Agreement;

(b) the Publisher is not aware of any claim or other matter that may prevent or hinder production, publication or marketing of the Game; and

(c) the Publisher has not entered into and will not enter into any agreement or arrangement which may conflict with any provision of this Agreement.

13.2 Designer Warranties

The Designer covenants and warrants with and to the Publisher that:

(a) The Game is not in the public domain;

(b) the Game is original and the Designer is the sole owner of the copyright in the Game;

(c) the Designer is legally-entitled to enter into this Agreement and to grant the rights granted to the Publisher;

(d) the Designer has not entered into and will not enter into any agreement or arrangement which may conflict with any provision of this Agreement;

(e) the Game has not previously been published, in whole or in part, in any form;

(f) the Game does not, and if published will not, infringe upon any copyright, trademark, or any other intellectual property right or proprietary right of any third party, without their written consent;

(g) all statements of fact in the Game are true and are based on diligent research;

(h) all advice and instruction in the Game are safe, and are not negligent or defective in any manner;

(i) the Game, if biographical or “as told to” the Designer, is authentic and accurate.

13.3 Designer Indemnity

(a) The Designer will indemnify, defend, and hold harmless the Publisher and its respective officers, directors, employees and representatives, from any and all claims, debts, demands, suits, actions, proceedings, and/or prosecutions (Claims) based on allegations which, if true, would constitute a breach of any of the warranties and representations or any other obligation of the Designer under this Agreement, and any and all liabilities, losses, expenses (including legal expenses) and damages in consequence thereof.

(b) Each party to this Agreement will give prompt notice in writing to the other party of any Claims.

(c) In the event of any Claims, the Publisher will have the right to suspend payments otherwise due to the Designer under the terms of this Agreement as security for the Designer’s obligations under this clause.

(d) The Designer’s warranties, representations, and indemnities as set forth in this Agreement will extend to any person or entity against whom any Claims are asserted by reason of the exploitation of the rights granted by the Designer in this Agreement, as if such warranties, representations, and indemnities were originally made to such third parties.

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(e) All such warranties, representations, and indemnities will survive the termination or expiration of this Agreement.

14. Termination

14.1 Designer’s Right to Terminate Agreement.

(a) The Designer will have right to terminate this Agreement:

(i) if the Publisher fails to publish the Game within 11 months after the Final Delivery Date;

(ii) if the Publisher fails to make any report of sales as required under this Agreement; or

(iii) in the event that the Publisher files for bankruptcy or enters into a liquidation proceeding,

in such cases, the Designer must send the Publisher written notification of the Designer’s intention to terminate the Agreement, and termination will take effect 60 days after the Publisher’s receipt of such notification unless the Publisher has remedied the breach during the 60-day period.

(b) Upon termination of this Agreement in accordance with this clause 14.1, all rights in the Game granted to the Publisher in this Agreement, except the rights to fulfil orders in processing, will revert back to the Designer, provided that any license or contract previously granted to a third party as authorised by this Agreement will remain in effect, and the Publisher will continue after the termination to have the right to its share of the proceeds from any such licenses or contracts (provided it is not insolvent under Australian law).

14.2 Publisher’s Right to Terminate Agreement.

The Publisher will have the right to terminate this Agreement:

(a) if the Publisher, in its sole discretion, determines that the Game, artwork, front matter and/or back matter, permissions and/or any other materials (Associated Game Materials) delivered by the Designer under this Agreement to be unacceptable in form or substance in which case:

(i) the Publisher will advise the Designer by written notice;

(ii) upon receipt of the written notice, the Designer will have 30 days to cure any defects and deliver a revised, correct or supplementary version of the Associated Game Materials to the satisfaction of the Publisher (Final Delivery Date).

(b) if the revised, corrected and/or supplemented Associated Game Materials are not delivered by the Final Delivery Date, or if they are deemed unsatisfactory in form or substance by the Publisher, then the Publisher will have the unqualified right to terminate this Agreement without further obligation to the Designer;

(c) if the Designer fails to deliver the Associated Game Materials required under this Agreement and/or any revisions and corrections as requested by the Publisher, by the Final Delivery Date, or if the Designer fails to do so in a form and substance satisfactory to the Publisher, then the Publisher has the right to terminate this Agreement by informing the Designer in writing;

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(d) if the Designer breaches any warranty, representation or obligation under this Agreement, by providing the Designer with 30 days written notice, in which case termination will take effect 30 days after the delivery of such notice unless the Designer has remedied the breach;

(e) immediately, if the Designer suffers an event of insolvency in which event the rights in the Game will be assigned to the Publisher.

Upon termination by the Publisher, the Designer must, without prejudice to any other right or remedy of the Publisher, immediately repay the Publisher any sums previously paid to the Designer.

15. Confidentiality

(a) Each party must maintain in confidence all confidential information and ensure that the confidential information is kept confidential.

(b) A party (Beneficiary) may reveal Confidential Information of another party (Provider):

(i) if required by law or by any stock exchange to disclose, in which case the Beneficiary must immediately notify the Provider of the requirement and must take lawful steps and permit the Provider to oppose or restrict the disclosure to preserve, as far as possible, the confidentiality of the confidential information;

(ii) if the confidential information is in or enters the public domain for reasons other than a breach of this Agreement;

(iii) if the confidential information is disclosed to the Beneficiary by a third party legally entitled to disclose that information and who is not under an obligation of confidentiality to the Provider; or

(iv) to its professional advisers to obtain professional advice.

(c) This clause 15 will survive the termination of this Agreement.

16. General

16.1 Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes any prior representation, understanding or arrangement given or made by the parties, whether orally or in writing.

16.2 No agency

The Designer must not represent itself, and must ensure that its employees, partners, agents or sub-contractors do not represent themselves, as being the Publisher’s employees, partners or agents.

16.3 Governing Law

This Agreement is governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.

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16.4 Variation

This Agreement may only be varied by a written document executed by both parties.

16.5 Force Majeure

The Publisher’s obligations under this Agreement will be extended by a period equal to any period of force majeure (circumstance beyond the control of the Publisher) that prevents the Publisher from performing obligations pursuant to this Agreement.

16.6 Notice

(a) Any notice, demand, consent, approval, request or other communication to be given under this agreement (Notice) must be in writing and, unless this agreement provides otherwise, in English and provided to a party at the address notified.

(b) A Notice is given if:

(i) hand delivered, on the date of delivery;

(ii) sent by email and the sending party’s server reports that the email has been successfully transmitted:

(A) before 5 pm on a Business Day, on that Day;

(B) after 5 pm on a Business Day, on the next Business Day after it is sent; or

(C) on a day that is not a Business Day, on the next Business Day after it is sent,

(iii) sent by prepaid mail within Australia, on the date that is 2 Business Days after the date of posting; or

(iv) sent by prepaid Express Post International (or overseas equivalent) airmail between countries, on the date that is 10 Business Days after the date of posting.

16.7 Succession

This Agreement will be binding on the heirs, executors, administrators, successors, and assigns of the Designer, and the successors, assigns, and licensees of the Publisher.

16.8 Dispute

If any dispute arises between the Designer and the Publisher regarding this Agreement, the Publisher and Designer will first attempt to resolve such dispute through mediation, and, if that fails, such dispute will be referred to binding private arbitration in Australia.

16.9 Assignment

The rights and obligations of either party under this Agreement may not be assigned or transferred without the prior written consent of the other party.

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Execution page

Executed as an agreement

Signed by Elliott James Bailey

....................................................................Signature of Witness

...........................................................................Signature

....................................................................Name of Witness

Signed by the Designer, by its authorised representative

....................................................................Signature of Witness

...........................................................................Signature

....................................................................Name of Witness