Tencent Game Without Borders Developer Agreement

Please read this Tencent Game Without Borders GWB Platform Agreement (“Agreement”) carefully because it explains your rights and obligations related to your access and use of Tencent’s Game Without Borders platform available at https://gwb.tencent.com (the “GWB Platform”), and games you submit to the GWB Platform (each a “Licensed Game”). This Agreement is between Tencent Mobile International Ltd. (“Tencent”)and you. By logging into or using the GWB Platform or by submitting any Licensed Game to the GWB Platform, or by clicking “I Agree” or otherwise indicating your acceptance of this Agreement, you agree to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, you may not access or use the GWB Platform or submit any Licensed Game.

This Agreement is applicable to individuals or entities who intend to connect or submit their Licensed Game(s) to the GWB Platform (“ Developer(s)” or “you”). If you are accepting the terms of this Agreement on behalf of a company or other entity or organization, you represent and warrant that you have (i) submitted complete and accurate information with respect to such company, entity, or organization pursuant to the Tencent’s identity confirmation process and (ii) the authority to bind such company, entity, or organization to the terms of this Agreement. In such event, “you” and “your” will refer to that the company, entity, or organization that you identify during Tencent’s identity confirmation process. If you are an individual, you understand and agree that you must be 18 years old or older to access and use the GWB Platform. If you do not accept all the terms of this Agreement, then Tencent is unwilling to provide you access or license to its GWB Platform and you are not permitted to use the GWB Platform.

You represent and warrant that: (i) you have the appropriate legal qualifications to access and use the GWB Platform and to upload, access and operate your Licensed Games; (ii) any qualification materials, relevant qualifications or certificates and any other documentation provided by you, if any, are true, accurate and complete, and will be updated as soon as the such qualifications, certifications, or other information changes; (iii) you have the appropriate rights and ability to perform your obligations under this Agreement; and (iv) your acceptance of and performance under this Agreement will not be in violation of any applicable law or other agreement or other binding obligation upon you. If at any time you are incapable of representing and warranting the above, or if the above are or become untrue, you may not use the GWB Platform and you assume all the resulting responsibilities and losses incurred by Tencent.

1. Account Registration and Management

  1. (a) Account Creation. To access parts of the GWB Platform, you will need to create a developer account (an “Account”), either via the GWB Platform or via your account with certain third-party services. Your Account is personal to you, and you may not assign or otherwise transfer your Account to any other person or entity, including by sharing your password.
  2. (b) Account Accuracy and Security. It’s important that you provide Tencent with accurate, complete and up-to-date information for your Account and you agree to keep such information up-to-date. If you don’t, Tencent may suspend or terminate your Account and access to the GWB Platform. You agree that you will not disclose your Account password to anyone and will notify Tencent immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
  3. (c) Identity Verification. You recognize that your failure to provide accurate information when creating your Account may result in complications in verifying your identity if an issue arises, such as fraudulent activity under your Account. Tencent will not be liable to you or any other party for any losses associated with your inability to access and control your Account due to fraudulent activity. Upon receiving reports regarding fraudulent activity under your Account, Tencent may, in its sole discretion, take action pursuant to a request you make, including verifying your identity to reinstate your Account.

2. Changes to this Agreement

Tencent may update this Agreement at any time, in its sole discretion, upon notice to you via one of the communication methods described in Section 12 below. You must review the updated Agreement whenever Tencent updates it. Your continued use of the GWB Platform after Tencent has posted an updated Agreement constitutes your agreement to be bound by the updated Agreement. If you do not agree to the updated Agreement, you may not use the GWB Platform anymore.

3. Licensed Game

  1. (a) Submission Requirements. You may submit a Licensed Game to the GWB Platform by following the instructions available at https://gwb.tencent.com/project/register, or any written instructions we may communicate to you. You acknowledge and agree that the Licensed Game and related materials will not contain any functionality that allows in-game purchases, or in-game advertising, and that Licensed Game will comply with any applicable Tencent policies we may provide.
  2. (b) Tencent Testers. You acknowledge and agree that Tencent may designate individuals, including Tencent and its affiliates’employees and third-party industry experts and professional players selected by Tencent (collectively “Testers”) to test, evaluate and provide feedback on the Licensed Game (“Feedback”). Subject to the terms and conditions of this Agreement, Tencent hereby grants to you a non-exclusive right to use Feedback for the sole purposes of developing, improving, or marketing your Licensed Game. Notwithstanding the foregoing, Tencent and Testers have no obligation to provide Feedback for any Licensed Game. You agree that you will not collect or otherwise process personal information about Testers on the GWB Platform or through the Licensed Game.
  3. (c) Tencent Review. Tencent has the right to review your Licensed Game to determine whether such Licensed Game comply with applicable law, our policies and requirements for Licensed Game, and this Agreement. Tencent may reject any Licensed Game at Tencent’s sole discretion, and remove such Licensed Game from the GWB Platform, at any time and without prior notice to you. You agree that Tencent is not obligated to review any Licensed Game, and that Tencent will not have any liability or assume any responsibility for, the Licensed Game. You are solely responsible for your Licensed Game.
  4. (d) Representations and Warranties. You represent and warrant that (i) you have and will maintain all rights necessary to grant the rights to Tencent, its affiliates and Testers that are granted in this Agreement; (ii) you have and will have all rights necessary to fully perform your obligations under this Agreement free and clear of all agreements, liens, adverse claims, encumbrances, and interests of any person or entity, including your employees, contractors, and your contractors’ employees and agents; (iii) neither the Licensed Game, nor Tencent’s exercise of Tencent’s rights under this Agreement with respect to your Licensed Game or any related item, will infringe, misappropriate, or otherwise violate the intellectual property or any other rights of a third party, or any applicable law; (iv) you will comply with all open source licenses and that the Licensed Game will not contain any software code that is subject to a license requiring, as a condition of use, modification, or distribution of the software code, that the software code or other software code combined or distributed with it be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributable at no charge; and (v) the Licensed Game will not contain any hidden or undisclosed content, such as cut scenes, “Easter eggs,” or other unauthorized or hidden game play elements, regardless of whether or not that content is programmed to be accessible or inaccessible to a user or third party. You further represent and warrant that any materials delivered or submitted as part of your Licensed Game do not contain any computer code (1) designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of the computer program (e.g., “viruses” and “worms”); (2) that could disable the computer program or any computer system or mobile device or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies, or the advancement to a particular date or other numeral (e.g., “time bombs,” “time locks,” and “drop dead” devices); (3) that could permit Developer or any third party to access the computer program or any computer system or mobile device without Tencent’s authorization (e.g., “traps,” “access codes,” or “trap door” devices); or (4) that could permit Developer or any third party to track, monitor, or otherwise report the operation and use of the computer program by Tencent or track, monitor, report, or obtain any data from any Subscriber (unless Tencent has provided prior written approval).
  5. (e) License. You hereby grant to Tencent and its affiliates a worldwide, royalty-free, fully-paid, perpetual, non-exclusive license, under all intellectual property rights (including patent rights) that you own or control to evaluate and test your Licensed Game, including allowing Testers to download the Licensed Game via the websites or channels provided by you, and (ii) install the Licensed Game, or any portion thereof, on  computer devices or mobile devices; (ii) modify Licensed Games to the extent required for the foregoing purposes.

4. Tencent Solutions

Tencent may offer Developers professional solutions for testing, security, and technical support, and marketing resources. Tencent may also contact Developers with opportunities to receive funding from the Tencent Game Innovation Fund, or publish a Licensed Game on other Tencent platforms. For clarity, Tencent’s professional solutions, funding and other services will be provided subject to additional terms and conditions, and offered at Tencent’s sole discretion and Tencent has no obligation, and Developer has no expectation, in this regard.

5. Access Conditions

With respect to the GWB Platform and/or any Licensed Game, you agree not to post, upload, publish, submit or transmit anything or commit or engage in any act that:

6. Intellectual Property Rights Protection

Tencent does not own your Licensed Game or any portion thereof; you take full responsibility for your Licensed Games and the operation thereof. You are fully responsible for any disputes, responsibilities, and the like that arise from a user’s use of Licensed Game and the hosting of such Licensed Game on the GWB Platform, including the violation of relevant laws and regulations.

7. Intellectual Property Compliance

  1. (a) No Transfers. This Agreement does not transfer any intellectual property rights, whether in trademark, copyright, or other intellectual property rights. Ownership of each party’s intellectual property rights shall remain with the respective parties. All rights not expressly granted under this Agreement are reserved by each party.
  2. (b) Tencent’s Ownership. The web pages, text, pictures, audio, video, graphics, and other content provided by Tencent or its affiliates as part of the GWB Platform are owned by Tencent (or another third party, as applicable) and protected by intellectual property rights. Except as explicitly stated otherwise, Tencent and its affiliates own the copyrights, patents, and other intellectual property rights in and to any software that Tencent makes available on the GWB Platform and under this Agreement and you may not exploit any such rights for any purpose. The copyrights and trademarks rights used in the provision of the GWB Platform, any software Tencent provides hereunder, and the "QQ", "WeChat", "Tencent", "Game Without Borders", "TENCENT" and the Penguin Image are the sole property of Tencent. These and any other Tencent-owned intellectual property rights are protected by law. You may not use or create derivative works of any Tencent-owned intellectual property without Tencent's express written permission. Nothing in this Agreement will be construed to restrict Tencent’s rights to independently develop or license games that are similar or identical in theme, format or other respects to your Licensed Game.
  3. (c) Developer’s Ownership. Developer retains all right, title, and interest in and to the Licensed Game.

8. Privacy Policy

Please refer to our Privacy Policy, available at https://gwb.tencent.com/privacy.html, for information on how we collect, use and disclose your information. You acknowledge and agree that your use of the GWB Platform is subject to our Privacy Policy.

9. Disclaimer

  1. (a) DISCLAIMER OF WARRANTY. THE GWB PLATFORM, SOFTWARE, FEEDBACK, AND ANY OTHER SERVICES, INFORMATION, CONTENT OR MATERIALS PROVIDED BY TENCENT IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the GWB Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Feedback, or any results or benefits you may obtain by using the GWB Platform or any Feedback.
  2. (b) Changes to the GWB Platform. You understand and agree that Tencent has the right to change, suspend or terminate part or all of the GWB Platform at any time without notice to you. Tencent shall have no liability to you for any such changes.
  3. (c) Patches, Updates, and Upgrades. Tencent may provide patches, updates, or upgrades to the GWB Platform. Tencent shall have no liability to you for any suspensions or interruptions of the GWB Platform, including but not limited to during or after such patches, updates, and upgrades.
  4. (d) Security of Information. Tencent has made efforts to protect your information. However, no method of transmitting information over the Internet or storing information is completely secure. Accordingly, Tencent cannot guarantee the security of any information you provide, and you agree that Tencent shall not be liable for any losses or disclosure of your information, including through viruses, Trojans, hacking into Tencent’s systems, system instability, third party service defects, government action, or any other event that results in service interruption, data loss, or any other loss.
  5. (e) Force Majeure. Tencent shall have no liability to you or any third party for any force majeure event, including but not limited to natural disasters war, turmoil, and government actions. Should such a situation occur, Tencent will endeavor to mitigate such losses and make timely repairs.
  6. (f) Interruptions. Tencent shall have no liability to you for losses caused by your Licensed Game or your own improper operation of the GWB Platform.

10. Limitation of Liability

NEITHER TENCENT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE GWB PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GWB PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TENCENT OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

UNDER NO CIRCUMSTANCES WILL TENCENT’S OR ANY OF ITS AFFILIATES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED ONE-HUNDRED DOLLARS ($100).

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THESE PROVISIONS FAIL THEIR ESSENTIAL PURPOSE.

11. Termination

  1. (a) Termination. Tencent has the right to suspend or terminate the provision of all or part of the GWB Platform to you at any time. We respect copyright law and expect you to do the same. It’s our policy to terminate in appropriate circumstances Accounts of Developer who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. You may cancel your Account, or remove a Licensed Game from the GWB Platform, at any time via the GWB Platform. Upon cancellation, all account data will be removed from the GWB database within a period not exceeding 7 days.
  2. (b) Data Retention. Upon termination of this Agreement, Tencent may, in its sole discretion, delete any information stored under your Account. You are responsible for backing up your data and information.
  3. (c) Survival. Upon termination of this Agreement for any reason, the following provisions shall survive: 6, 7, 8, 9, 10, 11(c), 12(b), 12(c), 13, 14, 15, and 16.

12. Notice

  1. (a) Communication to You. Tencent may provide communications to you through any of the following methods: web page announcements, web page prompts, e-mails, SMS, QQ, regular mail, and internal communication of the management system of your Account. Tencent may use these communication methods to send you information on various rules, notices, prompts concerning the GWB Platform, and messages unrelated to the GWB Platform, including but not limited to advertisements. Any of the above methods shall constitute valid notice to you and your receipt shall be deemed once the communication is sent by Tencent or posted, as applicable. Such communications shall be binding upon you upon receipt. If you continue to use the GWB Platform after such communications, you are agreeing to be bound by any additional terms contained in such communication. If you do not agree you must notify Tencent and except as otherwise allowed by Tencent you may not use the GWB Platform anymore.
  2. (b) Correct Contact Information. Tencent relies on the accuracy of your information to send you communications. Tencent shall not be liable to you for your inability to receive Tencent’s communications due to your failure to provide accurate contact information.
  3. (c) Contacting Tencent. If you need to contact or otherwise provide notice to Tencent under this Agreement, you must do so by email to gwbcontact@tencent.com.

13. Indemnity and Compensating Tencent

You will indemnify, defend and hold harmless Tencent and its officers, directors, employees and agents, Testers, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the GWB Platform, (ii) your violation of this Agreement, your breach of any representations or warranties under this Agreement, or any applicable law, (iii) you or using your Licensed Game; or (iv) any other losses unrelated to Tencent herein. If Tencent undertakes any actions or measures against you or your Licensed Game in accordance with the provisions of this Agreement or because you violate the relevant laws, you are fully responsible for any disputes or liabilities arising therefrom. You should take full responsibility for you own losses as well as all the losses to Tencent or others.

14. Confidentiality

Licensed Game that have not yet been published or otherwise publicly released will be deemed the confidential information of the Developer, provided however, once a Licensed Game is published commercially or otherwise publicly released, it is no longer considered confidential information. Feedback and any information about or communications with Testers, will be deemed the confidential information of Tencent. Confidential information will not include any information that: (i) was publicly known and made generally available prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of that third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s confidential information. Each party will: (a) treat as confidential all confidential information of the other party; (b) not disclose that confidential information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section provided that the disclosing party has obtained the written consent to that disclosure from the other party; and (c) not use that confidential information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s confidential information if required by law so long as the other party is given prompt written notice of that requirement prior to disclosure and assistance in obtaining an order protecting that information from public disclosure.

15. Miscellaneous

  1. (a) Signatory Location. This Agreement shall be deemed to be signed, executed or entered into in Hong Kong.
  2. (b) Governing Law and Resolution of Disputes. This Agreement will be governed and construed in accordance with the Laws of Hong Kong, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising in any way out of or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination of this Agreement, or any dispute regarding pre-contractual or non-contractual rights or obligations arising out of or relating to it ("Dispute") will be referred to and finally resolved by binding arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC") under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with those rules ("Rules"), which Rules are deemed to be incorporated by reference into this clause and as may be amended by the rest of this clause. The seat of arbitration will be Hong Kong and the agreement to arbitrate contained in this clause will be governed by the laws of Hong Kong. The arbitration tribunal ("Tribunal") will consist of three arbitrators to be appointed in accordance with the Rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
  3. (c) Assignment. Tencent may freely assign or transfer all or part of its rights and/or obligations under this Agreement and your continued use of the GWB Platform constitutes your acceptance of such assignment. If you sell or otherwise assign ownership in any of your Licensed Game, you may, upon written notice to Tencent, assign this agreement to the new owner of such Licensed Game, provided they agree to be bound by this Agreement.
  4. (d) Headings. The headings of all the terms of this Agreement are for convenience only and shall not be taken as a basis for the interpretation of the meaning of any portion of this Agreement.