THIS AGREEMENT is between FOGDEV, the provider of the fogdev.com website, games, and website monetization tool (hereinafter collectively referred to as the "Tool"), and you ("Publisher"), the user of the Tool. FOGDEV's Tool allows Publisher to earn revenue based upon Publisher's visitors ("Publisher's Visitors") playing flash games on Publisher's website. Publisher acknowledges that the games offered as part of FOGDEV's Tool may contain branding related to FOGDEV and/or a third party. Publisher further acknowledges that the games offered as part of FOGDEV's Tool may contain links to FOGDEV's website freeonlinegames.com and/or links to a third party's website.
PUBLISHER'S REGISTRATION FOR AND USE OF THE TOOL SERVES AS PUBLISHER'S CONSENT TO THIS AGREEMENT AND ALL OF THE RIGHTS, REMEDIES, AND OBLIGATIONS CONTAINED HEREIN. PUBLISHER SHOULD NOT USE THE TOOL IF IT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT.
WARRANTIES. Publisher confirms and warrants that:
Power to Enter Agreement. Publisher has the right, power, and legal capacity to enter into this Agreement and to accept the duties and rights granted in it.
Good Faith Performance. Publisher shall, in good faith, comply with the terms of this Agreement.
Lawful Use. Publisher is expressly prohibited from using the Tool outside the uses allowed for under this Agreement and/or from using the Tool in violation of any applicable law or regulation anywhere in the world. Publisher agrees to comply with all applicable local, national, and international laws, treaties, and regulations.
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.
PRIVACY POLICY. FOGDEV hereby incorporates its Privacy Policy into this Agreement.
PUBLISHER'S ACCOUNT AND VERIFICATION.
Publisher agrees to provide FOGDEV with accurate, up to date, and complete information of itself.
Publisher acknowledges and agrees that it has an ongoing duty to update its personal information if and when it changes.
Publisher agrees to keep its account secure from unauthorized access. Publisher further agrees that it is responsible for its user account, and Publisher accepts full responsibility for any and all use of its user account, whether authorized or unauthorized. In the case of an unauthorized access, Publisher agrees to contact FOGDEV immediately.
Publisher acknowledges that FOGDEV requires domain name ownership verification for the URL corresponding to any website on which the Tool, including the games, will be used prior to any account registration. In order to use the Tool, Publisher agrees to provide such verification by using FOGDEV URL Verification System inside the Publisher's control panel.
FOGDEV'S RIGHTS IN AND TO THE TOOL.
FOGDEV is the owner of, or has licensed rights to, the Tool and all of its contents, including without limitation, the games, text, software, scripts, graphics, files, images, photos, sounds, music, videos, and interactive features along with their selection and arrangement.
FOGDEV is the owner of, or has licensed rights to, all trademarks, service marks, designs, and logos that are used as part of the Tool, including without limitation, the FOG, FOGDEV, FREEONLINEGAMES.COM marks.
The Tool is subject to all applicable intellectual property and other laws, including without limitation, trademark, copyright, and trade secret law.
PUBLISHER'S LIMITED LICENSE AND PERMISSIBLE USES.
FOGDEV grants Publisher a limited, revocable, non-exclusive, license to use the Tool solely for the services contemplated by this Agreement, namely placement of the games on Publisher's website(s) to generate income. Any use of the Tool outside of the uses expressly stated in this Agreement is prohibited.
Publisher agrees that the limited license granted to it by FOGDEV automatically terminates upon breach of any of the terms of this Agreement.
Publisher 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 Tool, games, or any content associated therewith without the prior written consent of FOGDEV.
Publisher agrees that it will not, or enable any third party to make, use any fraudulent measures or techniques to generate revenue. Publisher further agrees that it will not make, or enable any third party to make, any improper use, including without limitation, decompiling the Tools, games, or content, of the Tool.
Publisher agrees that it may not use the trademarks, service marks, designs, or logos of FOGDEV, or any colorable imitation thereof, as an indicator of source or as part of a domain name that is likely to cause consumer confusion.
Publisher agrees that it will not, and will not assist any others to, make any derivative works of the Tool.
Publisher agrees that it will use, and not delete or modify in anyway, any copyright or other proprietary notices that appear on the Tool or the games associated therewith. Any copyright complaints to Publisher by a Publisher's Visitors or other third parties should be handled consistent with FreeOnlineGames.com's DMCA Policy.
OPT-IN ADVERTISEMENTS.
Ad-Games. Publisher acknowledges and agrees that it may choose to offer to Publisher's Visitors games that contain third party advertisements ("Ad-Games").
FOGDEV Approval Required. Publisher acknowledges and agrees that prior approval from FOGDEV is required to access and use Ad-Games.
FOGDEV Discretion. Publisher acknowledges and agrees that it is within the sole and absolute discretion of FOGDEV whether to offer Publisher Ad-Games. In the event FOGDEV allows Publisher to offer Ad-Games, it is within the sole and absolute discretion of FOGDEV as to which Ad-Games.
Publisher agrees that use of Ad-Games are subject to all of the provisions of this Agreement.
TERM AND TERMINATION.
Term. This Agreement remains in full force and effect, unless stated otherwise elsewhere in this Agreement, as long as Publisher uses the Tool.
Termination by FOGDEV. Publisher 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 Publisher's access to the Tool and delete Publisher's user account for any reason and for no reason, including without limitation, breach of the terms of this Agreement.
Termination by Publisher. Publisher reserves the right to cancel Publisher's account with FOGDEV by emailing FOGDEV and requesting termination. Publisher agrees that once a termination request is submitted it will follow all instructions provided by FOGDEV to terminate its account and/or usage of the Tool. Any balance remaining on Publisher's account will be paid within forty-five (45) days following the month end in which Publisher terminated Publisher's account.
Upon termination, Publisher agrees to cease and desist all use of the Tool, including without limitation, placement of the Games on Publisher's website.
WEB APPLICATION SERVICES. The parties expressly acknowledge that FOGDEV is acting solely as Publisher's application service provider. Publisher acknowledges and agrees that FOGDEV's Tool and any content associated therewith 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 the third party websites. Publisher agrees that FOGDEV will not be held liable for any third party content or websites not owned and operated by FOGDEV.
PAYMENT.
FOGDEV agrees to pay Publisher within forty-five (45) days following the month end in which Publisher's earnings reach two hundred and fifty ($100.00) USD.
Publisher agrees that any breach of this Agreement results in forfeiture of any payment due.
Publisher agrees to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with Publisher's use of the Tool.
FOGDEV does not guarantee any payment for use of the Tool.
DISCLAIMERS.
Limitation of Liability. The Tool provided by FOGDEV is provided AS IS, WITHOUT WARRANTY OF ANY KIND TO PUBLISHER, PUBLISHER'S VISITORS, 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. PUBLISHER AGREES THAT ANY EFFORTS BY FOGDEV TO MODIFY ITS TOOL 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. PUBLISHER FURTHER AGREES THAT FOGDEV SHALL NOT BE LIABLE TO PUBLISHER, PUBLISHER'S VISITORS, OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, 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. MODIFICATIONS MADE TO FOGDEV'S TOOL BY PUBLISHER VOIDS ANY, IF ANY, 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 Publisher. In such jurisdictions, FOGDEV's liability is limited to the greatest extent permitted by law.
FOGDEV Not Liable for Delays or Defaults. FOGDEV shall not be liable for delays or defaults in furnishing the Tool hereunder. Any use of the Tool by Publisher shall constitute a waiver and release of FOGDEV by Publisher for any claim for damages, setoff, discount or other liability on account of delay.
Third Party Transactions at Publisher'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 Publisher, Publisher's 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 Publisher, Publisher's Visitors, or third parties whatsoever with regard to the Tool or any information, products or services provided through FOGDEV and obtained or contracted over the Internet.
INDEMNITY. PUBLISHER 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) PUBLISHER'S USE OF THE TOOL; (II) PUBLISHER'S PROVIDING ACCESS TO THE TOOL, INCLUDING TO PUBLISHER'S VISITORS OR THIRD PARTIES; (III) PUBLISHER'S VIOLATION OF ANY TERM OF THIS AGREEMENT; (IV) PUBLISHER OR PUBLISHER'S VISITORS VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY TRADEMARK, COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; AND/OR (V) ANY CLAIMS THAT PUBLISHER CAUSED DAMAGE TO A THIRD PARTY. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THIS AGREEMENT AND PUBLISHER'S USE OF THE TOOL.
DELEGATION OF DUTIES. FOGDEV reserves the right to delegate any of its duties under this Agreement to any other person, entity or subcontractor.
REMEDIES. The failure of FOGDEV to seek relief for Publisher's breach of any duty under this Agreement shall not waive any right of FOGDEV to seek relief for any subsequent breach.
LIMITATION. PUBLISHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TOOL OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. PUBLISHER'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.
ARBITRATION. PUBLISHER 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 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 OBLIGATION 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 JUDGMENT AND ENFORCED IN ANY COURT SITTING WTIHIN THE LOCATION OF PUBLISHER.
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 FZESEVERABILITY. 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.
UPDATES TO THIS AGREEMENT.
THIS AGREEMENT AND ITS TERMS MAY BE MODIFIED, DELETED, OR ADDED 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. PUBLISHER AGREES TO BE BOUND BY SUCH MODIFICATIONS AND AGREES TO REVIEW THE CURRENT VERSION OF THESE TERMS OF USE PRIOR TO USE OF THE TOOL. PUBLISHER'S USE OF THE TOOL FOLLOWING ANY SUCH MODIFICATION OR UPDATE TO THE AGREEMENT CONSTITUTES PUBLISHER'S ACCEPTANCE OF THE NEW TERMS IN THE AGREEMENT.
Effective Date: March 25, 2010