FOGDEV.COM Developer Terms of Service

THIS AGREEMENT is between FOGDEV, the provider of the fogdev.com website, games, and game monetization API (hereinafter “API”), and you (“Developer”), the user of the API. FOGDEV’s API allows Developer to earn revenue based on the number of visitors (“Publisher’s Visitors”) that visit a third party Publisher’s website (“Publisher”) and that play Developer’s flash games on Publisher’s website. Developer acknowledges that FOGDEV may modify or watermark the graphical user interfaces of games submitted to FOGDEV to display the FOGDEV mark, its freeonlinegames.com website, or the website of a third party as an indicator of source or sponsorship.

DEVELOPER’S USE OF THE API CONSTITUTES DEVELOPER’S MANIFESTATION OF ASSENT TO THIS AGREEMENT AND ALL OF THE RIGHTS, REMEDIES, AND OBLIGATIONS CONTAINED HEREIN. DEVELOPER SHOULD NOT USE THE API IF IT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT.

  1. WARRANTIES. Developer confirms and warrants that:

    1. Power to Enter Agreement. Developer has the right, power, and legal capacity to enter into this Agreement and to accept the duties and rights granted in it.

    2. Good Faith Performance. Developer shall, in good faith, comply with the terms of this Agreement.

    3. Lawful Use. Developer is expressly prohibited from using the API outside of the uses allowed for under this Agreement and/or from using the API in violation of any applicable law or regulation anywhere in the world. Developer agrees that it will not alter or modify any part of the API or its associated Website. Developer agrees to comply with all applicable local, national, and international laws, treaties, and regulations.

    4. Objectionable Materials. Developer warrants and agrees that it will not use the API to disseminate any indecent, objective, offensive, or pornographic materials, the determination of which will be made in the sole and absolute discretion of FOGDEV.

    5. Rights of Third Parties. Developer warrants and agrees that its use of the API will not violate the rights of third parties, including but not limited to intellectual property rights and rights of publicity or privacy.

    6. Non-Circumvention. Developer will not circumvent, reverse engineer, disable, or otherwise interfere with the API, its security systems, or its digital rights management systems.

    7. Harmful Technologies. Developer will not distribute viruses, spam, pyramid schemes, spyware, adware, malware, badware, or any other unauthorized, unlawful, or harmful technologies.

    8. Collection of Personal Information. Developer will not harvest or collect personal or personally identifiable information from or concerning Publisher’s Visitors without their express consent, including but not limited to email addresses.

    9. Use of Robots. Developer will not use any automated system to access or monitor games distributed through the API, including but not limited to robots or spiders.

  2. ENTIRE AGREEMENT. This Agreement hereby incorporates FreeOnlineGame.com’s Terms and Conditions. To the extent that any conflicts exist between FreeOnlineGames.com’s Terms and Conditions and this Agreement, this Agreement supersedes and controls. Furthermore, this Agreement supersedes any and all oral agreements between the parties with respect to the matters stated herein.

  3. PRIVACY POLICY. FOGDEV hereby incorporates its Privacy Policy into this Agreement.

  4. DEVELOPER’S ACCOUNT AND VERIFICATION.

    1. Developer understands and agrees that it may be provided with a user account that will enable Developer to access the API and will provide Developer with information concerning its use of the API (“User Account”).

    2. Developer agrees to provide FOGDEV with accurate, up to date, and complete information on itself.

    3. Developer acknowledges and agrees that it has an ongoing duty to update its personal information if and when it changes.

    4. Developer agrees to keep its User Account secure from unauthorized access. Developer further agrees that it is responsible for its User Account, and Developer accepts full responsibility for any and all use of its User Account, whether authorized or unauthorized. In the case of unauthorized access, Developer agrees to contact FOGDEV immediately.

  5. DEVELOPER’S LIMITED LICENSE AND PERMISSIBLE USES.

    1. FOGDEV grants Developer a limited, revocable, non-exclusive, non-sublicensable, and royalty free license to use the API solely for the services contemplated by this Agreement, namely, the integration of Developer’s games into FOGDEV’s API and the placement of games on Publishers’ website(s) to generate income. Any use of the API outside of the uses expressly stated in this Agreement is prohibited.

    2. Developer agrees that the limited license granted to it by FOGDEV automatically terminates upon breach of any of the terms of this Agreement.

    3. Developer understands and agrees that the API and its associated website and content, as well as all proprietary rights contained therein, including but not limited to trademarks, service marks, design marks, logos, and copyright rights, are the property of FOGDEV.

    4. Developer agrees that it shall not use, copy, reproduce, modify, translate, publish, republish, frame, scrape, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purposes whatsoever the API, games, website, or any content associated therewith without the prior written consent of FOGDEV.

    5. Developer agrees that it will not make or use, or enable any third party to make or use, any fraudulent measures or techniques to generate revenue. Developer further agrees that it will not make, or enable any third party to make, any improper use of the API, website, games, or content, including without limitation, decompiling the API, website, games, or content.

    6. Developer agrees that it may not use the trademarks, service marks, design marks, or logos of FOGDEV, or any colorable imitation thereof, as an indicator of source or as a part of a domain name that is likely to cause consumer confusion.

    7. Developer agrees that it will not, and will not assist any others to, make any derivative works of the API.

    8. Developer agrees that it will use, and not delete or modify in any way, any copyright or other proprietary notices that appear on the Tool or the games associated therewith. Any copyright complaints should be handled consistent with FOGDEV’s DMCA Policy.

  6. FOGDEV’S LIMITED LICENSE AND PERMISSIBLE USES

    1. Developer hereby grants FOGDEV a limited, non-revocable, non-exclusive, sublicensable, and royalty free license to use the API solely for the services contemplated by this Agreement, namely, the integration of Developer’s games into FOGDEV’s API and the placement of games on Publishers’ website(s) to generate income.

    2. Developer hereby grants FOGDEV a limited, non-revocable, non-exclusive, sublicensable, and royalty free license to display Developer’s trademarks, service marks, design marks, or logos in association with the services contemplated by this Agreement, namely, the integration of Developer’s games in to FOGDEV’s API, the placement of games on Publishers’ website(s) to generate income, and the advertising of the availability of Developer’s games.

    3. Developer understands and agrees that FOGDEV may identify it as a client in FOGDEV’s client lists and other marketing materials. Developer hereby grants FOGDEV a limited, non-revocable, non-exclusive, sublicensable, and royalty free license to display Developer’s trademarks, service marks, design marks, or logos in association with the identification of Developer as a client of FOGDEV in FOGDEV’s client lists and other marketing materials.

  7. TERM AND TERMINATION.

    1. Term. This Agreement remains in full force and effect, unless stated otherwise elsewhere in this Agreement, for as long as Developer uses the API to offer its game for display or use.

    2. Termination by FOGDEV. Developer acknowledges and agrees that FOGDEV reserves the right to immediately, without prior notice, with or without cause, and in its sole and absolute discretion, terminate Developer’s access to the API and delete Developer’s User Account for any reason or for no reason, including without limitation, a breach of the terms of this Agreement.

    3. Termination by Developer. Developer reserves the right to cancel Developer’s User Account with FOGDEV by emailing FOGDEV and requesting termination. Developer agrees that, once a termination request is submitted, it will follow all instructions provided by FOGDEV to terminate its User Account and/or usage of the API. Any balance remaining on Developer’s account will be paid within forty-five (45) days following the month end in which Developer terminated Developer’s User Account.

    4. Upon termination, Developer agrees to cease and desist all use of the API, including without limitation, to place games on Publishers’ website(s). Upon termination, FOGDEV will cease calculating Plays and Developer will receive no further payments for Plays that occur after the date of termination. Developer understands and agrees that it bears the responsibility to remove all games from the API and from Publishers’ websites.

  8. WEB APPLICATION SERVICES.

    1. The parties expressly acknowledge that FOGDEV is acting solely as Developer’s application service provider. Developer acknowledges and agrees that FOGDEV’s API, and the games published through FOGDEV’s API, may contain data and links to third party websites that are not owned, operated, or controlled by FOGDEV. FOGDEV has no responsibility for the data provided to or available at third party websites. Developer agrees that FOGDEV will not be held liable for any third party content or websites not owned and operated by FOGDEV.

    2. Developer understands and agrees that it may not, whether directly, indirectly, through the authorization or control of, or through collusion with, a third party, or through a manual or automated processes, generate clicks, impressions, views, plays, acquisitions, or the like that are tallied by the API.

    3. Developer understands that FOGDEV may, from time to time, implement changes to the API that may allow Developer to insert and display third party advertisements in Developer’s game(s). Should FOGDEV allow the insertion and display of third party advertisements, Developer will have the opportunity to opt-out of the insertion and display of these advertisements.

  9. PAYMENT.

    1. FOGDEV agrees that the API will use commercially and technologically reasonable means to track, using its proprietary algorithms, the metrics used to determine the amount paid for the play of Developer’s game(s) (“Plays”). The validity or bona fide nature of individual Plays, as well as the method of calculating the value of Plays, will be determined in the sole and absolute discretion of FOGDEV. The calculation of amounts paid for Plays under this Agreement will be determined solely by reference to records kept by FOGDEV.

    2. FOGDEV agrees to pay Developer a rate determined by FOGDEV’s proprietary algorithms less any payment defaults, discounts, refunds, debts, charge-backs, processing fees, taxes, or sale commissions for every Play of Developer’s game made by Publishers’ Visitors.

    3. Payments from FOGDEV to Developer under this Agreement will be made by check, PayPal, or wire transfer. Developer understands and agrees that some methods of payment may incur processing charges and Developer agrees to pay for any such processing charges.

    4. FOGDEV does not warrant or guarantee that Developer will receive a certain or specific number of Plays.

    5. FOGDEV does not warrant or guarantee that Developer will receive a certain or specific amount payments under this Agreement.

    6. FOGDEV agrees to pay Developer within forty-five days following the month end in which Developer’s earnings reach one hundred ($100.00) USD.

    7. Developer agrees that any breach of this Agreement will result in forfeiture of any payment due hereunder.

    8. Developer understands and agrees that some game developers will receive advanced payments for implementing the API into their games. FOGDev reserves the right to choose which game developers will receive an advance payment. If an advance payment is made, further revenue will not be paid to Developer until the amount of the advance payment is recouped.

    9. Developer agrees to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with Developer’s use of the API.

    10. FOGDEV does not guarantee any payment for use of the API. FOGDEV maintains an active list of specific websites that are known to block external scripts in Adobe Flash Player. Developer understands that FOGDEV will not pay Developer for Plays that occur on or through these websites. Further, FOGDEV will not pay Developer for Plays that occur on FOGDEV’s own website, including but not limited to fogdev.com, freegamesforyourwebsite.com, freeonlinegames.com, and fog.com.

    11. In the event Developer disputes the amount or validity of any payments made under this Agreement, Developer must notify FOGDEV in writing within thirty (30) days of any such dispute. Developer understands and agrees that its failure to notify Developer of any dispute within thirty (30) days will constitute Developer’s express waiver of any claims related to the disputed payment.

  10. DISCLAIMERS.

    1. Limitation of Liability. The API provided by FOGDEV is provided AS IS, WITHOUT WARRANTY OF ANY KIND TO DEVELOPER OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE. DEVELOPER AGREES THAT ANY EFFORTS BY FOGDEV TO MODIFY THE API SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY OF FOGDEV’S WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. DEVELOPER FURTHER AGREES THAT FOGDEV SHALL NOT BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF FOGDEV WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. FOGDEV DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA, INCLUDING BUT NOT LIMITED TO DATA RELATING TO PAYMENTS OR THE CALCULATION OF PLAYS. MODIFICATIONS MADE TO FOGDEV’S API BY DEVELOPER VOIDS ANY, IF ANY EXIST, REMAINING EXPRESS OR IMPLIED WARRANTIES.

      Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages and, as such, some portion of the above limitation may not apply to Developer. In such jurisdictions, FOGDEV’s liability is limited to the greatest extent permitted by law.

    2. FOGDEV Not Liable for Delays or Defaults. FOGDEV shall not be liable for delays or defaults in furnishing the API hereunder. Any use of the API by Developer shall constitute a waiver and release of FOGDEV by Developer for any claim for damages, setoff, discount or other liability on account of delay.

    3. Third Party Transactions and Developer’s Peril. The parties expressly recognize that FOGDEV does not operate, control or endorse any information, products, or services on the Internet, and that any entities, including Publishers, Publishers’ Visitors, or third parties that do offer such information, products or services are not affiliated with FOGDEV. FOGDEV does not make any express or implied warranties, representations, or endorsements to Developer or third parties whatsoever with regard to the API, or any information, products, or services, provided through FOGDEV and obtained or contracted over the Internet.

  11. INDEMNITY. DEVELOPER agrees to defend, indemnify and hold FOREVER harmless FOGDEV, its members, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) DEVELOPER’S use of the API; (II) DEVELOPER’S violation of any term of THIS AGREEMENT; (III) DEVELOPER’s violation of any third party right, including without limitation any TRADEMARK, copyright, property, or privacy right; AND/OR (v) any claims that developer caused damage to a third party. This defense and indemnification obligation will survive THIS AGREEMENT and developer’s use of the api.

  12. DELEGATION OF DUTIES. FOGDEV reserves the right to delegate any of its duties under this Agreement to any other person, entity, or subcontractor.

  13. REMEDIES. The failure of FOGDEV to seek relief for Developer’s breach of any duty under this Agreement shall not waive any right of FOGDEV to seek relief for any subsequent breach.

  14. LIMITATION. DEVELOPER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE API OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. DEVELOPER’S FAILURE TO NOTIFY FOGDEV IN WRITING OF ANY DISPUTED PAYMENT WITHIN SIXTY (60) DAYS BARS ANY SUCH CAUSE OF ACTION IT MAY HAVE RELATIVE TO THE DISPUTED PAYMENT.

  15. ARBITRATION. DEVELOPER AND FOGDEV AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR CORRELATING TO THIS AGREEMENT, OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, OR VIOLATION OR TERMINATION HEREOF, WILL BE FINALLY AND CONCLUSIVELY SETTLED BY ARBITRATION. THE ARBITRATION WILL BE HELD IN THE COUNTY OF COOK, STATE OF CHICAGO, PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BEFORE A SINGLE ARBITRATOR. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF APPLICABLE LEGAL PRINCIPLES AND WILL HAVE DISCRETION TO AWARD COSTS AND FEES. HOWEVER, THE LOSING PARTY SHALL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEY’S FEES.

    IT IS AGREED THAT THE DETERMINATION OR AWARD OF THE ARBITRATOR MAY BE ENTERED AS JUDGMENT IN ANY COURT SITTING WTIHIN THE STATE OF ILLINOIS THAT HAS JURISDICTION OVER THE SUBJECT MATTER. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT THEIR PRESENECE IS AND WILL BE REQUIRED AT TIMES WITHIN THE STATE OF ILLINOIS IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. AS SUCH, THE PARTIES FURTHER IRREVOCABLY SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR AND/OR ARBITRATION PROCEEDING.

    IT IS FURTHER AGREED THAT THE DETERMINATION OR AWARD OF THE ARBITRATOR MAY BE ENTERED AS A JUDGMENT AND ENFORCED IN ANY COURT SITTING WITHIN THE LOCATION OF DEVELOPER.

  16. NOTICE. All notices to FOGDEV must be in writing and must be mailed by registered or certified mail, postage prepaid, and return receipt requested to:

    FreeOnlineGames.com FZE
    PO BOX 191 251
    DUBAI, UAE

  17. SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired and shall continue in full force and effect.

  18. UPDATES TO THIS AGREEMENT.

    THIS AGREEMENT AND ITS TERMS MAY BE MODIFIED, DELETED, OR ADDED TO BY FOGDEV, IN ITS SOLE AND ABSOLUTE DISCRETION, AT ANY TIME. WHEN AND IF THE TERMS OF THIS AGREEMENT ARE AMENDED, THE “EFFECTIVE DATE” WILL CHANGE. DEVELOPER AGREES TO BE BOUND BY SUCH MODIFICATIONS AND AGREES TO REVIEW THE CURRENT VERSION OF THESE TERMS OF USE PRIOR TO ITS USE OF THE API. DEVELOPER’S USE OF THE API FOLLOWING ANY SUCH MODIFICATION OR UPDATE TO THE AGREEMENT CONSITUTES DEVELOPER’S ACCEPTANCE OF THE NEW TERMS IN THE AGREEMENT.

Effective Date: October 6, 2010