AGHANIM INC

DEVELOPER TERMS

PART 1: COMMERCIAL SUMMARY

1.	CONTENT
	Game(s)	Such game(s) as Developer may decide to create a game Hub for or otherwise distribute on the Environment from time to time.
	Content	“Content” means the Game(s) and the content in connection with the Game(s) as developed by Developer and provided to Aghanim during or prior to the Term, and which Aghanim shall have the right but not the obligation to resell to end users of the Environment or third-party online marketplaces.
	Term	12 months from the Effective Date and thereafter to continue on an annual rolling basis until terminated by Aghanim in accordance with the Terms.
	Territory	Worldwide
2.	PAYMENT
	Developer Share	An amount equal to the total sums actually received for distributed Content and recognized as revenue by Aghanim during the Term from end users through its relevant payment system provider (subject to such payment system provider’s applicable foreign exchange conversion rate) with respect to the Content in cleared non-refundable or repayable funds (the “Gross Receipts”) LESS: (i) the Aghanim Fee; (ii) relevant taxes such as sales tax, withholding taxes and any other taxes and customs duties; (iii) all costs incurred by Aghanim in relation to the marketing, promotion and advertising of the Content, if the Parties agreed to such in writing or in the Environment; (iv) the sums of any and all refunds, repayments, chargebacks and customer credits, excluding the processing charges for such under item (vi) below; (v) any and all payment system provider fees and charges related to currency conversion and international payment means, as detailed in this Agreement; (vi) any and all payment system provider fees and charges related to payment reversals, and refunds, as detailed in this Agreement; (vii) any additional expenses (if any) as Aghanim may notify to Developer on the Environment or otherwise, and, where not comprised by the Aghanim Fee or otherwise provided for in this Agreement; (viii) any and all payment system provider processing fees and charges on the pass-through basis or otherwise.
	Aghanim Fee	5% of Gross Receipts + $0.50, as may be adjusted from time to time in annexes to this Agreement or otherwise, as we expressly agree in writing.
	Payment Details	All payments by Aghanim to Developer shall be made by electronic bank transfer to the Developer’s account as inputted by Developer on the Environment (the “Developer Account”).
	Payment Period	The Developer Share due shall be calculated monthly at the end of each calendar month (the “Payment Period”). The Developer Share shall be payable to the Developer Account within 30 calendar days of the end of such Payment Period.
	Instant Payout	If eligible, Developer may be offered instant payouts to its Developer Account, such payments to be subject to such qualifications, terms and conditions as Aghanim in its absolute discretion deems necessary (“Instant Payout”). Note: Instant Payouts may not be available to all Developers. • Eligibility is determined in our absolute discretion. • Developers shall cooperate in good faith with Aghanim to comply with any eligibility requirements, including executing and delivering such documents as Aghanim may require. • Aghanim makes no warranty as to the transaction speed of Instant Payouts and in no way guarantees that such payments will be paid to and received by Developer without any delay.
	Reward Points	If eligible or so assigned by Aghanim in its sole discretion and subject to the parties’ agreement, your Content may be enrolled in the Aghanim’s promotional activities which may include rewarding end users of the Environment with a percentage of their purchases of Content via the Environment. This percentage represents an option for end users to acquire additional Games Content at a discounted price based on their prior purchase (“Reward Points”). Note: • Upon receiving your consent to enable Reward Points, we shall have discretion to determine the form and the redemption process of Reward Points provided that we consult with you prior to making this determination. • Eligibility to enroll the Content in the promotional activities with Reward Points is determined in our absolute discretion. However, we may not enroll the Content in them without your consent.
	Minimum Payment	In the event that the payment due to Developer is less than USD 1,000 Aghanim shall be entitled to retain such sums until the total payment due to Developer exceeds such amount.
	Currency	United States Dollars

• This agreement is between you (“Developer” or “you” or, if accessing the Environment as an authorized user of Developer, “Authorized User”) and us, Aghanim Inc., a United States company with principal office at  21550 Oxnard St., 3rd Floor, Woodland Hills, CA, 91367 United States (“we”, “us” and “Aghanim” including any entity that directly or indirectly controls, is controlled by, or is under common control with Aghanim Inc.) is comprised of the key commercial terms above (the “Commercial Summary”) and the legal terms and conditions in the attached Terms of Service (“Terms”). Together the Commercial Summary and the Terms form the agreement between us (the “Agreement” or the “Developer Terms”). The “Effective Date” of the Agreement is the date of written notice by Aghanim of its acceptance of this offer, or the date when the parties execute an Amendment (as defined below).

• The commercial terms and any special terms or conditions unique to your Use of the Environment (as defined in the Terms) and the resale of Content by Aghanim of the Content are set out in the Commercial Summary.

• Under this Agreement you are offering to provide your Content and the necessary authorizations to enable Aghanim to resell or otherwise distribute (“Distribution”, “Distribute”) your Content as an independent reseller and Merchant of Record (MoR) in consideration for the mutual rights, covenants, and obligations contained in this Agreement, and subject to the scope and limitations of Section 2.1 of the Agreement. Aghanim has the discretion determine the Distribution terms and to Distribute such Content through the channels enabled in the Environment by granting limited non-sublicensable licenses to end users of the Environment or limited sublicensable licenses.

• For the purposes of enabling Aghanim to Distribute your Content, you hereby provide a limited sublicensable license to the Content, as provided in Section 2.1 of the Agreement.

• The parties agree that Aghanim Distributes the Content to end users on its own behalf and the end users and third-party online marketplaces enter into relations concerning the purchase of Content Distributed by Aghanim directly with Aghanim. Nevertheless, the terms and conditions of your separate arrangements with end users shall govern the Content’s subsequent use and restrictions in connection to such use. 

• Except as expressly provided herein with respect to the Content and any Developer Materials, you retain all right and interest in and to your Game(s). All title, and all rights not expressly granted in this Agreement, are reserved by each of the parties.

• Please direct any requests for paper copies of this Agreement and any consent withdrawal requests to us at partners@aghanim.com.

• This Agreement is subject to any subsequent amendment or variation of this Agreement agreed in writing between Aghanim and you (“Amendment”). To the extent of ambiguity or conflict between this Agreement and the Amendment, the latter shall prevail, unless otherwise indicated in the Agreement or the Amendment.

IMPORTANT SIGNING INFORMATION

• Offer: You understand that signing this Agreement or checking the box to agree to be bound by the terms and conditions of this Agreement constitutes an offer by you to enter into the Agreement and indicates your intention to enter into the Agreement in its entirety.

• Authority: You represent, warrant and undertake that you have full legal authority to enter into and perform this Agreement on its terms.

• Accuracy of Information: You represent, warrant and undertake that all information you have provided in connection with this Agreement is true, accurate, and complete, and if it is not then this will constitute a terminable breach of the Agreement.

• Consent to Electronic Transactions: You (or, if applicable, the Authorized User) consent to conduct this transaction electronically and agree that electronic submission constitutes your (or the Authorized User’s) signature and offer to enter into the Agreement on its terms as if actually signed by you (or the Authorized User) in writing.

• Entry into Force: You understand that this Agreement will not come into force unless and until Aghanim notifies you in writing of its acceptance of this offer, including by electronic means on the Environment. Until such time, you are granted a limited right and license to access the Environment in accordance with the Limited Access Contract as set out in the Terms. Alternatively, the parties may decide to execute this Agreement in writing, including by electronic means, or by executing an Amendment hereto; in such cases, the Agreement shall enter into force on the date of the last signature by the respective party on the corresponding document. 

• Authorized Users: With respect to any Authorized User who is accessing this Environment, the Authorized User agrees to be bound by the terms and conditions of this Agreement and the Authorized User represents, warrants and undertakes that they have full legal authority to bind the Developer to this Agreement and to enter into and perform this Agreement as an Authorized User on its terms.

PART 2: TERMS OF SERVICE

IMPORTANT NOTICE

The following Terms apply to and govern your Use of the Environment and your submission of Content and Developer Materials to the Environment and offer to Distribute Content. These Terms are in addition to the Commercial Summary, which these Terms are linked to, and which may include definitions that are used within these Terms.

PLEASE READ THESE TERMS CAREFULLY BEFORE AGREEING AND USING THE ENVIRONMENT AND SUBMITTING DEVELOPER MATERIALS OR CONTENT, AS THESE TERMS EXPLAIN THE BASIS ON WHICH THE ENVIRONMENT IS MADE AVAILABLE TO YOU, AND ON WHICH AGHANIM OBTAINS THE RIGHTS TO YOUR CONTENT FOR DISTRIBUTION TO END USERS, AND WHAT YOUR RIGHTS AND OBLIGATIONS ARE.

PLEASE READ THESE TERMS IN CONJUNCTION WITH OUR PRIVACY AND COOKIES POLICY, AVAILABLE HERE (“Privacy and Cookies Policy”): https://aghanim.com/privacy.

Your right to access, create an account with and otherwise use the Environment or any part thereof (“Use”) is granted when we have completed our onboarding process and notified you of our acceptance of your offer to enter into the Developer Terms, at which point a contract will come into existence between you and us in accordance with these Terms or any Amendment (the “Full Access Contract”).

Until entry into force of the Full Access Contract, subject to Sections 1.4, 6, 7.1, 7.3, 8 to 13, 14.1, and 14.3 to 14.9 we grant you a limited, non-exclusive, non-sublicensable right and license to use the Environment and any Intellectual Property Rights in it solely for the purpose of browsing and exploring such limited functionalities of the Environment as we may permit in our sole discretion (the “Limited Access Contract”). BY USING THE ENVIRONMENT PRIOR TO ENTRY INTO FORCE OF THE FULL ACCESS CONTRACT YOU ARE AGREEING TO BE BOUND BY AND BECOME PARTY TO THE TERMS OF THE LIMITED ACCESS CONTRACT. CONCLUSION OF THE LIMITED ACCESS CONTRACT SHALL NOT GIVE RISE TO AGHANIM’S OBLIGATIONS TO PROVIDE THE FUNCTIONALITY OF THE ENVIRONMENT IN FULL.

Access to the Environment can only be granted by Aghanim.

The “Environment” means the Aghanim integrated suite of tools and services designed to enable and enhance payment processing, monetization, live operations automation, community management, and the creation of bespoke website(s) in connection with the Game(s) that serves as a central hub for these activities (“Hub”), including without limitation any and all versions and updates of the same, and all other necessary software, websites and/or other applicable platforms operated by Aghanim and related applications, products, software and other materials under the “Aghanim” brand.

“You” shall include any Authorized User(s) for the purposes of Sections 1 to 4, 6, 7.4, and 9 to 14.

If you have any queries concerning these Terms you may contact us here: support@aghanim.com.

1. OBLIGATIONS

1.1

Subject to your compliance with this Agreement, we are responsible for:

• 1.1.1. the provision, development and maintenance of the Environment, subject without limitation to Sections 5.6, 9 and 10;

• 1.1.2. at our option, the Distribution of the Content to end users through the Environment and the channels enabled in the Environment. a; and

• 1.1.3. such other services, functionalities and features in connection with the Environment as we may notify you of from time to time on the Environment or otherwise.

1.2

We may market, advertise, and promote the Environment and/or Content to potential end users and take steps to increase traffic to the Environment or any part of it, but are under no obligation to do so.

1.3

You agree that you shall:

• 1.3.1. provide the Developer Materials and Content to us in accordance with the Content Guidelines (defined below);

• 1.3.2. provide us with all necessary cooperation in relation to this Agreement and all necessary access to such information, content and materials as may be required by us in order for us to perform our obligations under this Agreement and Distribute the Content to end users, including without limitation providing us, at your own cost, with all necessary access to the Game(s), Content and Developer Materials in a timely manner. If you fail to provide such access without first negotiating postponement of the Integration with Aghanim, and that failure directly results in increased expenses and costs for Aghanim to carry out the Integration without such access, you agree that such expenses and costs (“Access Failure Costs”) shall be borne by you. We reserve the right to recover any Access Failure Costs incurred by us by such means as we deem necessary including without limitation deducting such costs from Gross Receipts;

• 1.3.3. cooperate with Aghanim and comply in full with the Aghanim’s instructions, specifications, and the documentation made available or updated from time to time on the Aghanim’s websites, in the Environment or otherwise communicated to you by Aghanim (“Documentation”) in order to ensure successful integration of your Content with the Environment or Aghanim’s network and information systems necessary to perform this Agreement (“Integration”). The Integration, among other things as may be stipulated in this Agreement or annexes hereto, shall involve the installation and configuration of the Aghanim’s Application Programming Interface (“API”) and its methods, including but not limited to the ”item.remove” method, and the Documentation-compliant configuration of the refund mechanics. Where this Agreement stipulates that any terms are contingent on finalizing an Integration, it shall be considered finalized upon completion by Aghanim of one (1) Live Sale for Developer’s Content. “Live Sale” means a transaction made using any active, non-test payment method and intended for genuine end-user purchase, excluding those conducted for testing or internal purposes by either Party;

• 1.3.4. provide us with such assistance as we may reasonably require for the performance of this Agreement and in order to Distribute the Content to end users;

• 1.3.5. your activities under or in connection with this Agreement, and any Content and/or Developer Materials, comply with all applicable laws, rules, regulations and codes (including without limitation those imposed by any advertising authority in your relevant jurisdiction) from time to in force in the relevant territory (“Applicable Law”);

• 1.3.6. comply with such policies and guidelines as we may make available to you from time on the Environment or otherwise, including without limitation the then-current version of Documentation, any marketing guidelines (provided that you shall remain responsible for compliance with any Applicable Laws with respect to your own marketing and advertising efforts in connection with your Hub or any other feature of the Environment);

• 1.3.7. immediately remove any Developer Materials and/or cease any marketing and advertising efforts in connection with the Environment if requested by us or any regulator;

• 1.3.8. carry out any other Developer responsibilities set out in this Agreement in a timely and efficient manner (and we shall not be liable for any failure or delay in the performance of your obligations under this Agreement where such failure or delay is caused by you);

• 1.3.9. use all reasonable endeavors to prevent any unauthorized Use of the Environment and, in the event of any such unauthorized access or use, promptly notify us; and

1.4

You agree that you shall not:

• 1.4.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Environment in any form or media or by any means;

• 1.4.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Environment;

• 1.4.3. access all or any part of the Environment in order to build a product or service which competes with the Environment;

• 1.4.4. create, include or permit the inclusion in your Hub, or any part of the Environment, any link to a third-party payment system or service, save where such is expressly permitted within the Environment;

• 1.4.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Environment available to any third party, save where such third-party access is expressly permitted within the Environment;

• 1.4.6. introduce, or permit the introduction of, any virus or vulnerability into the Environment or Aghanim’s network and information systems; or

• 1.4.7. modify any of the Environment or combine or incorporate any of our Intellectual Property Rights in any other program or system.

1.5

We offer a variety of additional features and functionalities on the Environment, including without limitation with respect to player engagement and outreach, which are all developed for use alongside the Environment’s payment features and the Distribution of Content by Aghanim. Our provision of these additional features is conditional on your Use of the Environment’s payment features and provision of your Content to Aghanim for Distribution.

1.6

Any features of the Environment, its design and logic, functionality and supplemental documentation pertaining to the Environment, made known to you by virtue of either engaging with the Environment through the Full Access Contract or the Limited Access Contract shall be deemed Confidential Information under Section 13 of this Agreement. Your access to the Environment by means of Full Access Contract or Limited Access Contract is subject to registration in the Environment and provision of login details and any related verification and access restriction procedures employed by Aghanim. Sharing of your login details with anyone except Authorised Users who are bound by confidentiality obligations of no less strictness than those of Section 13 hereof, shall be deemed as a violation of Section 13 of this Agreement.

2. GRANT OF RIGHTS

2.1

In consideration for the mutual rights, covenants and obligations contained in this Agreement, you grant to us the non-exclusive, sub-licensable license to Distribute, promote, and advertise the Content and Developer Materials to end-users on the Environment and through the channels enabled in the Environment, including the limited rights to reproduce, copy, and adapt the Content and Developer Materials to all supported formats,  for the Term in the Territory and to use the Intellectual Property Rights therein as is reasonably required for the purposes of such Distribution. Both parties acknowledge that the Developer’s Content may be subject to restrictions imposed by Developer’s licensors or otherwise, Aghanim will honor these restrictions, and the limited license under this Section 2.1 is granted solely for the purposes of enabling the sale and purchase, and provision of the Content to end users. 

2.2

Aghanim and Developer may publicly refer to use of the Game(s) in connection with the Environment, provided that neither party shall publicly release any press release about other party without the prior approval of the other party. As such, you also grant us the non-exclusive, sub-licensable right to use your name (including your trade names) and any of your trademarks provided by you to us for use in connection with the Distribution of the Content and Developer Materials and the marketing, advertising and promotion of the Environment and our collaboration with you pursuant to this Agreement, provided that we receive your prior written approval for such use.

2.3

All Intellectual Property Rights in the Content, Developer Materials and any materials or branding provided by you to us shall belong to and vest in you or your third-party licensors, save in respect of any materials or branding provided by us. This Agreement shall not be construed to provide Aghanim with Intellectual Property Rights to your Content beyond the scope outlined in Section 2.1 of the Agreement and such that is reasonably needed to Distribute the Content.

2.4

In consideration for authorizing us to Distribute your Content, we grant you a non-exclusive, non-sublicensable right and license to Use the Environment and any Intellectual Property Rights therein for the purposes of submitting your Content and Developer Materials and assisting us in Distributing the Content to end users for the Term in the Territory, subject to the limitations set out in this Agreement.

2.5

You may at your option include the Aghanim logo in any Game(s) (including in the final Game and any 'early access’ or other distributed versions) in accordance with the specifications set out in the Annex A to the Terms (the “Logo”), and we hereby grant you a non-exclusive, non-sublicensable right and license to use the Logo for such purpose.

2.6

The rights granted to the Developer under Sections 2.4 and 2.5 are granted to the Developer only and shall not be considered granted to any subsidiary or holding company of the Developer.

3. CONTENT GUIDELINES AND CUSTOMER SUPPORT

3.1

In submitting your offer to enter into this Agreement you are offering to provide your Content to Aghanim and authorize Aghanim to Distribute your Content in consideration for the mutual rights, covenants and obligations contained in this Agreement. We shall have the right but not the obligation to Distribute, including without limitation to sell, such Content.

3.2

You warrant, represent and undertake to us that none of the Developer Materials, and that you shall not offer to supply to us any Content which:

• 3.2.1. is abusive, seditious, pornographic (including without limitation sexual violence or sexual role-playing games or correspondence), homophobic, defamatory, libelous, hateful, discriminatory, obscene, inflammatory or racist;

• 3.2.2. promotes acts of terrorism, gratuitous violence, self-harm, the organization of hate groups or single events of mass killings;

• 3.2.3. is unlawful, malicious, misleading or which in our sole discretion we feel might call us or our Environment into disrepute;

• 3.2.4. infringes or is likely to infringe the Intellectual Property Rights, contractual, confidentiality or other rights of us or any third party anywhere in the world or facilitates or encourages such infringement;

• 3.2.5. constitutes or promotes any illegal or unlawful activity or any activity which otherwise results in a breach of Applicable Laws;

• 3.2.6. constitutes or promotes any betting, gambling or lottery activity; 

• 3.2.7. contains any restricted material, including but not limited to passwords, medical information, personal details (including without limitation photos or videos) or confidential information of any person; or

• 3.2.8. solicits, invites, encourages, advocates, incites or provokes any or all of the foregoing or otherwise does not comply with the spirit as well as the letter of the preceding terms,

together the “Content Guidelines”.

3.3

As Aghanim does not get access to the Content’s source code or related infrastructure beyond what is needed for Integration, you agree that we are not liable to you for the acts of any third parties with respect to your Content or Developer Materials subsequent to Distribution.  .

3.4

All end-user support with respect to the Environment or purchase of Content on the Environment shall be handled initially by us and/or our agents who shall use reasonable endeavors to provide satisfactory consumer support, without recourse to you. We are not responsible for any support with respect to the Game(s) or the use of any Content in the Game(s).

3.5

You agree to work with us to resolve any support issue with respect to your Content or Developer Materials that cannot be resolved by us pursuant to Section 3.4.

3.6

If we provide the functionality for you to upload your own content, assets, and other materials (excluding the Content) to the Environment during or prior to the Term (“Developer Materials”), you further represent, undertake and warrant to us that:

• 3.6.1. you own or control all rights in and to any and all such Developer Materials that you submit, transfer, or otherwise make available through the Environment;

• 3.6.2. you have the right to grant us the license to such Developer Materials in Section 2.1; and

• 3.6.3. the Developer Materials will comply with these Terms, including without limitation the Content Guidelines.

4. CONTENT MANAGEMENT AND REMOVAL

4.1

In the event that: (i) you are responsible, in whole or in part, for the Content or Developer Materials otherwise being unavailable; (ii) your Content or Developer Materials in any way breaches the Content Guidelines or otherwise contains any prohibited content, such to be determined in our sole discretion; and/or (iii) we are in receipt of a third party complaint or takedown request and require the removal of relevant Content or Developer Materials prior to or during the relevant availability period, we may remove your Content and/or Developer Materials from our Environment with immediate effect and you shall be solely responsible for all refunds and associated costs owed to users of the Environment that have purchased such Content.

4.2

We may at any time, subject to reasonably advance notice considering the circumstances, set-off the sums due from you to us or any third-party user of the Environment against any sums due from us to you, whether the grounds of either sum is present or future, liquidated or unliquidated, and whether or not either sum arises under this Agreement. This right is expressly limited to (1) funds reversed as refunds or chargebacks from payment system providers, (2) adjustments to account for errors in previous Developer Share payment calculations, (3) changes of applicable tax rates or regulations resulting in adjustments of the previously paid amounts of applicable taxes. Any exercise by us of our rights under this Section 4.2 shall not limit or affect any other rights or remedies available to us under this Agreement or otherwise.

4.3

While we may in our sole discretion provide guidance with respect to, and/or approval of, any Content and/or Developer Materials, you shall remain solely responsible for ensuring that any Content and/or Developer Materials that you submit comply with all Applicable Laws and Content Guidelines.

5. PAYMENTS TO DEVELOPER AND PRICES

5.1

As a merchant of record (“MoR”), we reserve the right to Distribute the Content at such price as we deem necessary in our sole discretion, however, we will consult with you in good faith regarding the price set for the Content and will not deny the pricing suggestions unreasonably.

5.2

All Developer Share due will be calculated and paid (based on the latest information available to us) into your Developer Account in accordance with the terms of our applicable payment provider and your Developer Account.

5.3

No other payment, except for the accrued Developer Share, shall be due to you in respect of any use of the Content for promotional purposes by us, our agents, distributors, or licensees.

5.4

On a monthly basis we will provide you with a statement which contains such information as we reasonably consider appropriate for you to ascertain the sums due to you. At a minimum, these statements will detail the Developer Share due to you, the relevant fees and charges as outlined in the Commercial Summary, and refunds and chargebacks made during the relevant Payment Period.  

5.5

The parties agree that discrepancies in the statements provided under Section 5.4 with your records of 10% or less in a singular then-current Payment Period shall be deemed customary in trade between the parties, and the parties will apply good faith efforts to reconcile their respective statements and records and agree on the final statement. Any discrepancy covered by Sections 5.4 and 5.5 shall not be given presumptuous weight in determining Aghanim’s liability before you. Developer may, upon thirty (30) business days’ prior written notice and no more than once per twelve (12) months, request Aghanim to check Aghanim’s records against Developer’s records relevant to revenue, deductions, reserves, taxes, refunds, and fees for the preceding twenty-four (24) months, such request not to be denied unreasonably. In cases of discrepancies, the parties will cooperate in good faith to reconcile their records.

5.6

The Environment is provided to you on an “as-is” basis and we do not make any representation that: (i) your access to the Environment will lead to any monetary or other benefit to you; (ii) that we will exercise our discretion as an MoR to offer any Content for sale on the Environment in any particular way; or (iii) that any end user will purchase any Content from us.

5.7

All payments shall be made in the Currency. You shall be solely responsible and liable for any tax, charge or levy imposed on you in respect of your receipt of the Developer Share.

5.8

You warrant that you are entitled to lawfully receive any payment from us from the United States of America.

5.9

In the event that we are legally obligated to withhold any taxes (including but not limited to value added taxes, income taxes and surcharges) from payments to be made to you, we will be entitled to deduct or withhold any applicable taxes and pay the relevant taxes withheld to the relevant tax authority in accordance with the applicable tax regulations. If any tax is withheld by us, any amounts due, as reduced by the deductions or withholdings, will constitute full payment to you. If reasonably required, we will provide you with such receipts or other evidence of any withholdings and payments to the appropriate tax authorities as are lawfully available to us and are reasonably practicable for us to provide (and in no event shall such request require us to unduly disclose any Confidential Information), as soon as reasonably practicable after we receive your written request for such. Both parties shall cooperate and endeavor to comply with all applicable documentation requirements to ensure that the correct withholding tax is paid and accounted for.

5.10

In accordance with item (vi) Section 2 (Payment) subsection “Developer Share”, of the Commercial Summary, the fixed fee of $0.50 will be charged for processing the refunds for all non-Card-based Payment Methods and Bank Transfer Payment Methods, and the fixed fee of $15 will be charged for processing chargeback debits for all payment methods.

5.11

Each month for a period of six (6) months starting on the Effective Date we have the right to withhold 5% of monthly Gross Receipts on a cumulative basis for that six-month period (the “Initial Reserve”) to provide for any Instant Payouts and Reward Points, to prevent negative account balances, and to address any breach of this Agreement or discrepancies  between the parties, and thereafter we have the right to withhold 5% of Gross Receipts on a monthly rolling basis.

5.12

We will have the right in good faith to suspend payment of, or withhold any sums in relation to, the Developer Share otherwise due to you to in the event of (i) proceedings, claims or actions relating to the fraudulent or other illegal activity of Developer, or substantiated allegations of such; (ii) proceedings, claims or actions in relation to the Content or Developer Materials; or (iii) a material increase in end user refund, repayment or chargeback requests with respect to the Content; or (iv) breach of this Agreement, or when we provide you with written evidence of impending occurrence of either of the above (“Payment Suspension Event”). Such sums shall be withheld until such time as we determine, acting reasonably, that the Payment Suspension Event is concluded. For the Payment Suspension Events, except for those of item (iii) which require immediate action from us, we will provide you with a written notice detailing the specific reasons for the suspension and the amount of the withheld sums. You shall have a period of thirty (30) days, unless we are required to suspend the payments immediately under the Applicable Laws in which cases no grace period shall apply, to remedy the Event by ceasing the breach or the illegal activity or providing a reasonable explanation and supporting documentation indicating the absence of such.

5.13

The Aghanim Fee accounts for the fees described in item (viii) Section 2 (Payment), subsection "Developer Share", including the payment system fees associated with processing transactions, made via credit and debit cards (including American Express, VISA, MasterCard, Discover, Diners Club, Maestro, JCB, and UnionPay), Apple Pay, and Google Pay (all together "Card-based Payment Methods"), and bank transfers ("Bank Transfer Payment Methods"), and via other payment methods not included in the Card-based and Bank Transfer Payment Methods ("Alternative Payment Methods"), subject to variations of the fee structure as we may agree with you in the Annexes to the Agreement, and adjustments related to chargebacks, refunds and global remittances as may be provided in this Agreement.

5.14

The default Aghanim Fee is stated in the Commercial Summary. During the Term, the Parties may vary the percentage and structure of the Aghanim Fee. Should they do so, the changes will be provided in the newly added annexes to this Agreement. The provisions of Section 2 (Payment), subsection “Developer Share” and Section 5.13 shall take precedence over the contents of annexes to this Agreement, unless the contrary is explicitly stated in such annexes.

6. BEHAVIOR AND CONDUCT

6.1

You agree that you will not do any of the following:

• 6.1.1. generate any false traffic to your Hub or Content on the Environment. In the event that this happens you may be liable for criminal offences, and we reserve the right to share such information with appropriate authorities as we see fit; or

• 6.1.2. attempt to gain unauthorized access to any part of our Environment, including without limitation by using bots, hacks, exploits, software or any other materials or methods whatsoever designed to grant unauthorized access or to modify, interfere with or otherwise negatively impact on the ordinary operation of our Environment and the Content.

6.2

We require that all Content on our Environment be designated with accurate age ratings. These can be found on the relevant page of our Environment as updated from time to time. You warrant and undertake to us that you shall appropriately age rate all Content and materials uploaded to the Environment, by you or on your behalf, having regard to the appropriate age rating of the Game(s).

7. INTELLECTUAL PROPERTY

7.1

Subject to Section 7.2, all right, title, interest and ownership rights and any and all any and all registered and/or unregistered copyright, design rights, rights in computer software, database rights, patents and any rights to inventions, know-how, trade and business names and domain names, rights in get-up and trade dress, trade secrets, logos and devices, trade and service marks and any applications thereof and all rights in confidential information, and all other intellectual property rights anywhere in the world, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals and extensions of, and rights to claim priority from, such rights (“Intellectual Property Rights”), in or connected with the Environment and each part thereof (excluding any Content and Developer Materials) and any copies, translations, modifications, adaptations and any other derivative based on the Environment are owned by, belong to and vest in Aghanim and our licensors.

7.2

You shall be solely responsible for all Intellectual Property Rights in all Content created, submitted and offered to Aghanim for Distribution by you or on your behalf and in all Developer Materials. You hereby warrant to us that:

• 7.2.1. you are the sole legal and beneficial owner of, or are otherwise authorised to use and exploit, all rights and interests in all Intellectual Property Rights in and to all Developer Materials, and to all Content or other materials offered to Aghanim for sale by you or on your behalf; and

• 7.2.2. Distribution and related use by Aghanim of Content and use by Aghanim of Developer Materials provided by you or on your behalf to Aghanim and/or used on the Environment, will not infringe the Intellectual Property Rights of any third party.

7.3

The Environment may contain certain licensed materials licensed by third parties to Aghanim (for example, content belonging to an artist). All Intellectual Property Rights in and relating thereto are the property of their respective owners.

7.4

In the event that you become aware of any third-party infringement of any Intellectual Property Rights in the Content or Developer Materials you shall notify us of such infringement as soon as possible.

8. DATA PROTECTION

8.1

If either party processes personal data in relation to this Agreement or the Distribution of Content, the parties will enter into such further agreements as are reasonably required pursuant to applicable law in order to record and legitimize such processing (including, without limitation, a data processing agreement). Such further agreements will define the respective roles of the parties with regard to personal data processing, and nothing in this Agreement shall be construed as appointing either party as a personal data processor for other party or a joint controller with the other party.

8.2

The parties agree that, solely in cases where the Developer uses our Android SDK to collect and transmit payment card data, Aghanim acts as a service provider as defined under the Payment Card Industry Data Security Standard (PCI DSS), and is responsible for the security of such payment card data (including cardholder data and/or sensitive authentication data) that we store, process, or transmit on behalf of the Developer, or to the extent we could impact the security of such data in connection with the use of our Android SDK.

In all other cases, including where the Developer does not use our Android SDK or where payment card data is not collected, stored, processed, or transmitted through our systems, Aghanim does not act as a PCI DSS-defined service provider and assumes no responsibility under PCI DSS for the security of the Developer's own cardholder data environment or any associated account data.

8.3

Otherwise, any processing of personal data by Aghanim through the Environment will be governed by our Privacy and Cookies Policy, the terms of which should be read together with this Agreement.

9. AVAILABILITY, SUSPENSION AND TERMINATION

9.1

We do not warrant that your or any end user’s Use of the Environment will be uninterrupted, error-free, or free of any software vulnerability that when exploited may result in a negative impact to the confidentiality, integrity or availability of the Environment.

9.2

We may temporarily discontinue the Environment at any time for the purposes of upgrades, maintenance or other service administration reasons in our absolute discretion. We will use reasonable endeavors to limit the duration of any such discontinuance.

9.3

You acknowledge that:

• 9.3.1. the scope and level of the Environment availability may be reduced or adjusted by us if and to the extent necessary to make such offering compliant with, and viable under, all Applicable Laws and our policies as they come into effect; and

• 9.3.2. we may restrict the availability of the Environment (or any part thereof) to potential and/or existing users in any territory which we detect or believe, acting reasonably, to have high fraudulent activity.

9.4

this Agreement shall continue for the Term unless terminated:

• 9.4.1. with respect to the Full Access Contract, by us for our own convenience by giving 30 days’ written notice to you, provided that where we terminate in accordance with this section 9.4.1 we shall pay to you any Developer Share owed to you with respect to the Content up to the date of termination;

• 9.4.2. with respect to the Limited Access Contract, by us immediately for any reason at our discretion;

• 9.4.3. by us immediately at our absolute discretion if: (i) required by Applicable Laws; (ii) you fail to abide by any of the terms within this Agreement at any time and for any reason, including without limitation if you breach any warranty or representation under this Agreement; or (iii) if we reasonably suspect that you have failed to abide by any of the terms of this Agreement. We may take any action we deem reasonable against any Developer that does not comply with this Agreement, which may include immediately ceasing Developer Share payments.. However, if the breach is remediable we will give you a reasonable opportunity to cure the breach before terminating this Agreement; or

• 9.4.4. by you at any time by giving 30 days’ written notice to us; or

9.5

Termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities.

9.6

Notwithstanding anything to the contrary, following termination of this Agreement we shall retain the right to Distribute the Content solely for the purpose of providing existing, legitimate end users of the Content with the ability to continue using their existing, legitimate purchases.

9.7

Upon termination you shall cease all Use of the Environment.

10. LIMITATION OF LIABILITY

10.1

Except as expressly and specifically provided in this Agreement:

• 10.1.1. you assume sole responsibility for the results obtained from your Use of the Environment, and for any conclusions drawn from such use. Aghanim shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Aghanim by you in connection with your Use of the Environment, or any actions taken by Aghanim at your direction;

• 10.1.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from this Agreement; and

• 10.1.3. the Environment is provided to you on an "as-is" and “as available” basis.

10.2

Nothing in this agreement excludes Aghanim’s liability for:

• 10.2.1. death or personal injury caused by Aghanim’s negligence; or

• 10.2.2. fraud or fraudulent misrepresentation.

10.3

Subject to Sections 10.1 and 10.2:

• 10.3.1. Save for actual or direct damages for breach of this Agreement’s explicit provisions, Aghanim shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect, or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

• 10.3.2. Aghanim’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to an amount equal to the total value of one month of Aghanim's fee immediately preceding the date the relevant loss or damage occurred.

• 10.3.3. Aghanim shall make commercially reasonable efforts to ensure the correct Distribution of Content. However, when the Client does not fulfil, to any extent, its obligations under Sections 1.3-1.6, Sections 2-7, 8 (including any extraneous arrangements regarding personal data protection between the parties), and 13 of the Agreement, including Client’s obligations to comply with the Documentation and the obligations pertaining to Integration, Aghanim’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be excluded in full, including but not limited to the liability arising out of any errors in Distribution, incorrect pricing of the Content, and cybersecurity breaches.

10.4

Nothing in this Agreement excludes your liability for any breach, infringement or misappropriation of any Intellectual Property Rights.

10.5

Force Majeure. Each Party is relieved from its duty to perform its obligations under the Agreement and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which Force Majeure causes inability to perform the Agreement by that Party.

10.5.1

In addition, with regards to Distribution of Content in any Elevated Risk Territories or performance of the Agreement by Aghanim in relation to such Distribution, Aghanim may in its own reasonable discretion derogate from the standard payment and settlement terms of the Agreement, including Section 5 and the Commercial Summary, and Aghanim will be relieved from any liability in damages or any other contractual remedy for untimely payments to Developer or other breaches, if Aghanim is unable to perform, or when Aghanim’s performance becomes more burdensome or commercially impracticable relative to the assumptions on the date of conclusion of the Agreement or enablement of Distribution in the Elevated Risk Territories, due to Force Majeure. For the avoidance of doubt, the accrued and payable amounts of Developer Share are not extinguished by virtue of this Section 10.5.1, unless they are unrecoverable, confiscated, sanctioned, or otherwise permanently unavailable due to a Force Majeure event.

10.5.2

“Force Majeure” means the occurrence of an event or circumstance that prevents, impedes, a Party from performing one or more of its contractual obligations under the contract, if and to the extent that that Party proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of the Agreement. Only for the cases under Section 10.5.1, “Force Majeure” shall include the events and circumstances that affect Aghanim’s performance in the manner described in Section 10.5.1, and the conditions (a) and (b) shall not apply to such events and circumstances.

10.5.3

In the absence of proof to the contrary, the following events affecting a Party shall be presumed to fulfil conditions (a) and (b) under Section 10.5.2: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) solely for the purposes of Section 10.5.1 – any of the event described in this Section 10.5.3, and supply chain interruptions in Elevated Risk Territories, including, but not limited to: breach or delay by payment service providers, financial institutions or contractors, delays or interruptions in timely withdrawal of funds from accounts with payment service providers or financial institutions, payment systems’ obtrusion, interruption or restrictions (either by law or governmental order or by acts of private actors) (vi) Acts of God, including plague, epidemic, natural disaster or extreme natural event; (vii) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vii) general labor disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises. “Elevated Risk Territories” shall mean the countries, regions or territories, which by common knowledge or Aghanim’s designation present significant commercial or compliance risks due to socio-economic, political, or regulatory factors, including sanctions and trade controls, within or in relation to them. Elevated Risk Territories include Afghanistan, Belarus, Kazakhstan, Russian Federation, the territories of the states of the Commonwealth of Independent States (CIS), Vietnam, Venezuela, and Myanmar. Aghanim may designate further territories subject to prior notice to Developer.

10.5.4

A Party invoking this Section 10.5 shall provide the notice thereof is given without delay (email to suffice). If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other Party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment or event invoked impedes the performance by the affected Party. Notwithstanding the above, Aghanim, will have the right to assess and determine the duration of the impediment or event and their consequences in the cases described in Sections 10.5.1 and 10.5.3(v), acting in good faith and based on the given circumstances and available information.

11. INDEMNITY AND REMEDIES

11.1

You hereby indemnify and agree to defend and hold Aghanim and Aghanim’s affiliates, officers, directors, owners, licensors, service providers, partners, contractors, employees, agents and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, claims, costs and expenses (including legal expenses and lawyers’ fees) suffered or incurred by the Indemnified Parties arising out of or in connection with any claim arising out of any breach by you of this Agreement or claims arising directly or indirectly from your misuse of the Environment. You shall fully cooperate with Aghanim in the defense of any such claim and Aghanim reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

11.2

You further agree that the subject matter of this Agreement is of a unique character with special value and that Aghanim would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that Aghanim shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies (including injunctive relief) with respect to breaches of this Agreement, in addition to such other remedies as Aghanim may otherwise have available to it under Applicable Laws.

12. CHANGES TO THIS AGREEMENT

12.1

We may change this Agreement at any time for any legal, regulatory or security reason, or for any other reason that we decide at our absolute discretion. We will provide you with 30 days’ prior notice of any material changes to this Agreement, on the Environment or otherwise, unless we are prevented from doing so for any legal, regulatory or security reason. You will be required to accept the changes to continue to Use the Environment. If you do not accept the changes then you must cease Using the Environment, whereupon this Agreement will be terminated, and we shall pay to you any Developer Share owed to you with respect to the Content up to the date of termination. Where an Amendment stipulating commercial terms, such as the percentage of Aghanim Fee or calculation of the Developer Share has been executed by the parties, such commercial terms may only be altered in writing by both parties.

13. CONFIDENTIALITY

13.1

Both parties agree to:

• 13.1.1. keep confidential all information (written or oral) concerning the business and affairs of the party disclosing such information (“Disclosing Party”) that the party receiving this information (“Receiving Party”) have obtained as a result of discussions leading up to or the entering into or performance of this Agreement (the “Confidential Information”);

• 13.1.2. not without Disclosing Party’s written consent to disclose the Confidential Information in whole or in part to any other person save those of Receiving Party’s personnel and representatives engaged in performance of this Agreement  who have a need to know the same; and

• 13.1.3. use the Confidential Information solely in connection with this Agreement and the Use of the Environment and not for the Receiving Party’s own benefit or the benefit of any third party.

13.2

The provisions of Section 13.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:

• 13.2.1. already in your possession other than as a result of a breach of this Section;

• 13.2.2. in the public domain;

• 13.2.3. obtained or derived prior or subsequent to the date of this Agreement from a third party which is lawfully in possession of such information and does not hold such information subject to any confidentiality or non-use obligations is independently developed by such party without use of the Disclosing Party’s Confidential Information; or

• 13.2.4. required to be disclosed by you pursuant to applicable law or under a government or court order.

13.3

Each party hereby undertakes to make all relevant employees, agents, and subcontractors aware of the confidentiality of the Confidential Information and the provisions of Section 13 of the Agreement and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by the respective party’s employees agents and subcontractors with the provisions of Section 13 of the Agreement.

14. GENERAL

14.1

This Agreement and all documents referred to in them constitute the entire agreement between us and you in respect of their subject matter.

14.2

We shall be entitled to set off against any Developer Share any amounts which may become due to us from you under this Agreement (including without limitation any adjustments to account for errors in previous Developer Share payment calculations, if applicable) or under any other arrangement. If the liabilities to be set off are expressed in different currencies, we may convert either liability at a market rate of exchange for the purpose of set-off.

14.3

In accordance with item (v) Section 2 (Payment) subsection “Developer Share”, of the Commercial Summary:

• 14.3.1. the fixed fee of 1.5% of Gross Receipts will be charged for processing payments with international cards (except the cards issued in the US), for Card-Based Payment Methods and other non-Bank Transfer payment methods, and

• 14.3.2. the fixed fee of 1% of Gross Receipts will be charged if currency conversion is required, for all payment methods.

14.4

In accordance with item (vii) Section 2 (Payment) subsection “Developer Share”, of the Commercial Summary, in the case Developer decides to use the third-party services available in the “Aghanim Connect” section of the Environment, or other third-party services integrated in connection with Distribution upon the parties agreement, and such third-party services imply the transfers of data from Aghanim or the Environment to those services, Aghanim reserves the right to withhold the fixed fee of $0.22 per transaction to cover the data processing costs unless explicitly waived by Aghanim in writing.

14.5

No waiver (whether express or implied) by us of any breach of this Agreement shall be deemed to constitute a waiver or consent to any subsequent or continuing breach.

14.6

We may assign or transfer our rights and obligations under this Agreement to another organization (such as, without limitation, in the event of a business restructure or acquisition). We will let you know if that happens and we will ensure that your rights under this Agreement are unaffected. You may not assign, transfer or otherwise deal your rights or obligations under this Agreement unless we expressly agree to such assignment or transfer in writing.

14.7

Nothing in this Agreement shall be deemed to constitute a partnership, employment or agency relationship between you and us, and you shall not do anything whereby you may be represented as our partner, agent or employee.

14.8

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

14.9

If any provisions of this Agreement are held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

14.10

Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

14.11

The validity of this Agreement, the construction of its terms and the determination of the rights and duties of the parties hereto shall be governed by and construed in accordance with the laws of the State of California, and each party agrees to submit to the exclusive jurisdiction of the California courts.

ANNEX A

Aghanim Logo Specifications

If the parties agree on including the Aghanim logo in the Games or Content, you shall include the Aghanim logo in any Game(s) (including in the final Game and any 'early access’ or other distributed versions) in accordance with the following specifications:

Specification	Requirements
Logo	Please access our official press kit for the logo files via this URL: https://aghanim.com/presskit.zip.
Minimum size	For the horizontal logo variant, wherein the "Aghanim" title is positioned to the right of the graphical element, a minimum height of 48pt is required. For the vertical logo variant, wherein the "Aghanim" title is positioned below the graphical element, a minimum height of 96 pt is required.
Placement	In-Game splash screen (or equivalent)
Placement requirements	Selection of a logo variant must ensure maximum contrast with the background for optimal visibility. The surrounding whitespace must be equivalent to the size of the logo's graphical element.

Example

The following is provided by way of example only: