GAIJIN CONTRIBUTION AGREEMENT
Last revised and effective: May 20, 2022
IMPORTANT NOTICE: PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS CONTRIBUTION AGREEMENT ("AGREEMENT"). THIS IS AN AGREEMENT GOVERNING YOUR RELATIONSHIP WITH GAIJIN NETWORK LTD, A COMPANY REGISTERED AT IFIGENEIAS STREET 63, OFFICE 302, 2003 STROVOLOS, NICOSIA, CYPRUS (“GAIJIN"), IN CONNECTION WITH THE CONTENT GENERATED BY YOU BASED ON GAIJIN'S GAME AND LICENSED AND/OR ASSIGNED TO GAIJIN UNDER THIS AGREEMENT, AND PUBLISHED ON ANY WEBSITE OWNED OR CONTROLLED BY GAIJIN, INCLUDING LIVE.WARTHUNDER.RU / LIVE.WARTHUNDER.COM, AND ENLISTED-SANDBOX.GAIJIN.NET (“GAIJIN WEBSITE”).
THIS AGREEMENT MAY BE AMENDED BY GAIJIN AT ANY TIME. SUCH AMENDMENT OF THE AGREEMENT SHALL BE EFFECTIVE UPON POSTING ON GAIJINENT.COM AND/OR YOUR RECEIPT OF AN EMAIL MESSAGE FROM GAIJIN WITH SUCH INFORMATION.
HOWEVER, YOUR FAILURE TO REGULARLY VISIT THE AFOREMENTIONED GAIJIN WEBSITE OR TO MAINTAIN ACCURATE AND CURRENT CONTACT INFORMATION (INCLUDING, EMAIL ADDRESS) SHALL NOT RELIEVE YOU FROM ANY OBLIGATION UNDER THE CURRENT VERSION OF THE AGREEMENT. PLEASE CHECK THE GAIJIN WEBSITE REGULARLY AND MAINTAIN PROPER SETTINGS FOR YOUR ELECTRONIC MAILBOX (E.G. SPAM FILTERS) TO ENSURE THAT YOU ARE AWARE OF ALL TERMS GOVERNING THIS AGREEMENT.
THIS AGREEMENT IS MADE BY AND BETWEEN GAIJIN AND YOU (OR OTHERWISE REFERRED TO HEREUNDER AS USER), AS DEFINED BELOW (“USER” AND COLLECTIVELY WITH GAIJIN, THE “PARTIES” AND EACH, A “PARTY”).
ACCEPTANCE OF THE USER-GENERATED CONTENT AND FINAL CONSIDERATION ARE SUBJECT TO EXECUTION OF THE RELEVANT DEED OF ASSIGNMENT (“DEED”) BETWEEN THE PARTIES UNLESS OTHERWISE IS EXPLICITLY AGREED BETWEEN YOU AND GAIJIN.
1. CERTAIN DEFINITIONS
1.2 “Adjusted Net Revenue” means all aggregated gross revenues, including fees or other related consideration actually received by Gaijin in connection with the first sale of the User-Generated Content to the player (as a separate in-Game item, as a part of in-Game service or otherwise) less applicable taxes, including VAT, chargebacks, and refunds, as applicable.
1.3 “User-Generated Content” means any content generated by you through modifications, enhancements, use or operation of the Game or use of Gaijin's related services, including without limitations, revision, modification, translation, abridgment, condensation, expansion, or any other form in which Game and/or Gaijin Property or any portion thereof may be recast, transformed, or adapted as well as any new content generated by you that may be added to the Game (locations, tanks, aircraft, skins, and any other in-Game items), and submitted by you to Gaijin through the Gaijin's site or otherwise. User-Generated Content shall also mean any other digital content, including reference materials used in the creation of User-Generated Content, which is not directly based on Gaijin's Property or Gaijin's services (including but not limited to the images, videos, GIFs, music), shared by a User with one or more other Users, or otherwise made available through this Gaijin's site (including using cloud storage such as Google, Amazon, etc).
1.4 “You” or “User” means the individual developing and providing the User-Generated Content under this Agreement on his or her behalf.
1.5 “Gaijin Property” means any part of the Game (title, computer code, themes, objects, in-game items, locations, concepts, artworks, structural or landscape designs, animations, sounds, sound banks, musical compositions and recordings, audio-visual effects, etc.), Content Development Kit and any related documentation made available by Gaijin to you.
1.6 “Skin” means a custom graphical appearance of in-Game 3D items (such as aircrafts and other types of in-Game items as available) that is visible in the Game by the User after activation of the relevant Paid Service and obtaining 1 Skin.
1.7 “Paid Service” means the chargeable in-game feature (package of Skins) which, after being activated by the player, provides an opportunity to obtain 1 Skin randomly determined from among all Skins included in such a package.
2.2. You hereby grant to any and all users of the Game a non-exclusive, worldwide, free, perpetual license to reproduce the User-Generated Content on their devices and use it in connection with the Game. You agree that charging fees from other users of the Game, as well as appealing to pay for the User-Generated Content in any form (voluntary or mandatory) and on any web resource, is prohibited.
2.3. For the avoidance of doubt, this Section 2 of the Agreement (a license given from the User to Gaijin) shall be applicable for all the cases when Gaijin uses and exploits the User-Generated Content in any way, except for the inclusion of it in the Game. For this specific case, the Parties shall refer to Section 3 of the Agreement.
3.1. If and when Gaijin chooses to include User-Generated Content into the Game (as a separate in-Game item, as a part of in-game service or otherwise), in consideration of payments under Section 6 and subject to your decision, you assign to Gaijin free and clear of any claims/burdens and/or any third-party rights all exclusive copyrights and related rights, title and interest in the User-Generated Content (as such term is defined herein) to use and exploit the User-Generated Content by any means and ways currently known and which may arise in the future including but not limited to in any media in perpetuity (for the term of copyrights and related rights protection under the applicable laws) for the maximum validity of the copyright, and/or neighboring rights if distinguished by the applicable law, and including, without limitation, the right to use, operate, copy, distribute, exhibit, sell, bundle, sublicense or further assign User-Generated Content provided that you shall retain a non-exclusive right to use the User-Generated Content in connection with the Game or related Gaijin’s services.
3.2. You also agree and acknowledge that nothing in the Agreement shall limit Gaijin from (i) developing software or other products based on or derived from any User-Generated Content at any time and solely at its own discretion; (ii) entering into agreements to develop and distribute such products or software with any third party without any obligations to you except as explicitly stated herein; and/or (iii) using the User-Generated Content within or in connection with the Games(-s) which originally were not intended, expressed or implied, by the User to utilize the User-Generated Content submitted by him or her to Gaijin under this Agreement, and/or by means originally not intended by the User.
3.3. Gaijin reserves the right, but not the obligation, to restrict or remove User-Generated Content for any reason whatsoever. Without limitation, User-Generated Content could also be fully removed in any case specified in Section 9 of the Agreement.
3.4. You hereby expressly agree that, except as otherwise provided herein in Section 6 and in the Deed, you are not entitled to any compensation in connection or as a result of User-Generated Content assignment to Gaijin.
3.5. To avoid any doubts, Gaijin shall have the right to determine, in its sole discretion, whether, how, when, and for how long User-Generated Content, whether modified or not, will be available in the Game.
3.6. Additional conditions of assignment can be set forth in the Deed as requested by Gaijin.
4. YOUR WARRANTIES. INDEMNIFICATION. LIMITATION OF LIABILITY
4.1. YOU HEREBY WARRANT THAT:
4.1.1 all information provided by you to Gaijin in connection with this Agreement is true and accurate;.
4.1.2 You have full power and authority to enter into this Agreement;.
4.1.3 You fully own submitted User-Generated Content and are entitled to license and/or assign it under Section 2 and 3 of the Agreement and fulfill all other obligations under the Agreement and you have received all necessary permissions and/or licenses to exploit such copyrighted content on the Gaijin's site and fulfill your obligations under this Agreement. User-Generated Content licensed or assigned under the Agreement is cleared for any use, including but not limited to adding the content to the game (any software), making derivatives and modifications, distributing physical copies, and/or on the internet, anyhow monetizing and freely sublicense;.
4.1.4 You shall perform all of your obligations under the Agreement in accordance with applicable laws;.
4.1.5 User-Generated Content that you provided to Gaijin and other users of the Game does not:
(i) infringe on the copyright, trademark, patent, trade secret, or any other intellectual property rights, privacy rights, or any other legal or moral rights of any third-party individual or entity;.
(ii) constitute defamation, libel, or obscenity;.
(iii) result in any breach of contract to which you are a party, or cause injury to any third party;.
(iv) Promote violence or contain hate speech;.
(v) violate any applicable law, statute, ordinance, or regulations;.
(vi) contain adult content or promote illegal activities;.
(vii) violate any other provision of this Agreement as well as content requirements set out in the Gaijin Forum and Website Guidelines available at: https://gaijin.net/en/forumguidelines.
4.2. You hereby agree to indemnify and hold harmless Gaijin, its affiliates, officers, directors, agents, and employees, from any expense, loss, claim, damage, fine, penalty, or liability, including reasonable fees for attorneys and other professionals, payable under any judgment, verdict, court order or settlement, to the extent resulting from any claim, demand, action, suit, arbitration, or other proceeding initiated by any third party, including the assessment, claim or demand by a governmental agency or entity, arising out of your breach of this Agreement, including without limitation infringement by User-Generated Content of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy.
4.3. You understand and agree that Gaijin is not obligated to use, distribute, or continue to distribute copies of any submitted User-Generated Content and reserves the right, but not the obligation, to restrict or remove User-Generated Content for any reason.
4.4. IN NO EVENT SHALL GAIJIN OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION, OR BUSINESS INTERRUPTION), UNDER ANY THEORY OF LIABILITY, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USER-GENERATED CONTENT, GAMES, OR RELATED SERVICES, INCLUDING PAID SERVICE. ANY ACTION BROUGHT AGAINST GAIJIN PERTAINING TO OR IN CONNECTION WITH THIS AGREEMENT MUST BE COMMENCED AND NOTIFIED TO GAIJIN IN WRITING WITHIN ONE YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW OR LIMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL CIRCUMSTANCES.
4.5. Violations of this Agreement will cause irreparable injury that may not be remedied by monetary damages. Gaijin may seek an injunction or specific performance, without the necessity of posting a bond, to protect its interest if it reasonably believes you have (or intends to) breached your obligations under this Agreement. Such remedies are in addition to any other rights or remedies available to the parties. Failure to pursue any available rights or remedies is not a waiver of such rights and remedies.
5.1. By accepting this Agreement, you irrevocably and unambiguously agree that:
- all right, title, and interest in and to the Game, Gaijin's related content, Gaijin's trademarks, software, and materials pursuant to applicable EULA and Terms of Services, and all intellectual property rights thereto are the sole and exclusive property of Gaijin, suppliers and/or their affiliates, as applicable, and shall be solely responsible for any and all claims relating hereto;
- no right to copy, duplicate, imitate, emulate, replicate, create derivatives of the Game and/or Software (as such term(s) defined in the Terms of Services), in whole or in part is granted hereby, except for the purposes as expressly provided herein (to create User-Generated Content for submission to Gaijin through the Gaijin Website or otherwise as may be allowed by Gaijin).
6.1. If and when Gaijin chooses to include your User-Generated Content into the Game, in consideration for the rights granted herein, Gaijin agrees to pay you the following Fee for User-Generated Content:
|3D models of aircraft, tanks, ships||a fixed fee of USD 6,000 to USD 10,000 at Gaijin's sole discretion|
|3D models of cockpits||a fixed fee of USD 1,500 to USD 8,000 at Gaijin's sole discretion|
|Skins are distributed in a kit pre-formed by Gaijin as a Paid Service||30% of the Adjusted Net Revenue from the sale of a Skin created by the User calculated as specified in paragraph 6.2 Gaijin Coins below|
|Skins as a single-unit purchase||a fixed fee from USD 120 to USD 800|
|Skins are distributed through the in-Game marketplace (legitimate in-game transactions between the users of the Game)||No fee: any revenues remain completely the property of Gaijin and such revenue shall not be shared with the User who created the Skin|
|Other types of User-Generated Content||As will be determined at Gaijin’s sole discretion|
The Fee above is not final and subject to execution of the Deed unless otherwise is mutually agreed upon. No Fee is payable unless such a Deed is duly executed. Gaijin is free to propose the Fee or decline the User-Generated Content: under no circumstances is Gaijin obliged to negotiate neither the Fee nor the form/content of the Deed.
For the avoidance of doubt, no additional fee is provided for reference materials used by the User in the creation of User-Generated Content and submitted to Gaijin through the Gaijin's site or otherwise as may be allowed by Gaijin. Gaijin reserves the right to request additional information and/or reference materials to decide on the selection of appropriate User-Generated Content and payment of consideration.
6.2. Gaijin aggregates Adjusted Net Revenue, and 30% of the Adjusted Net Revenue from the sale of a Skin created by the User and included in a kit distributed as a Paid Service shall be paid to the User ("User's Share"). User's Share for each Skin shall be calculated as follows: after the sale of a Paid Service (a package of Skins which includes the Skin created by the User) to the player, the sum received from such sale shall be divided by the number of Skins included in the sold package. User's Share shall be equal to 30% of the amount resulting after the division of the sum received from the package sale by the number of Skins in the package, less any applicable taxes and deductions allowable for the calculation of the Adjusted Net Revenues. The User's Share shall be paid as defined herein below within the necessary time after each case of the package sale with the Skin created by the User.
6.3. Accounting of Gaijin's Adjusted Net Revenue from each sale of the Paid Service for the purposes of this Agreement, as well as an accounting of User's Share, will be carried out in Gaijin Coins with the following exchange rate: 1 Gaijin Coin = 1 US Dollar. Gaijin Coin is an inconvertible (closed) virtual in-game currency used exclusively in the Game for entertainment purposes only, that cannot be exchanged for real (fiat) money. For the purpose of this Agreement, accounting of User's Share in Gaijin Coins is carried out by Gaijin solely for the sake of convenience, and the payout of User's Share accrued in Gaijin Coins, in Euro or US Dollars, does not change this general rule.
6.4. During the necessary time after the completion of each sale of Paid Service, Gaijin transfers the User’s Share in Gaijin Coins to the in-Game virtual account of such User. For the avoidance of doubt, neither you nor anyone else shall have the right to exchange Gaijin Coins for real money or demand such exchange from Gaijin unless expressly provided for herein.
6.5. The User has the right upon invoice, not more than once a quarter and only within the current User’s balance of Gaijin Coins on the User’s in-Game virtual account to request the transfer of the User’s Share credited on the in-Game virtual account in Euro or US Dollars, provided that (a) three months have passed since the Gaijin Coins accrued as a User’s Share that you want to transfer were credited to the in-Game virtual account; (b) the total In-Game account balance of Gaijin Coins accrued as a User’s Share after the last payout of the User’s Share in Euro or US Dollars is not less than 500 Gaijin Coins; (c) The User’s account is protected by two-factor authentication (with cell phone number confirmation); (d) your in-Game account is authorized at https://store.gaijin.net/balance.php.
Provided that you comply with all the conditions mentioned above, payments in Euro or US Dollars will be made by Gaijin within 90 calendar days of receipt of your payment request by wire transfer (you will be responsible for any bank fees associated with the wire transfer) to your bank account or PayPal. You will be responsible for choosing the payment method that would be accessible and lawful for Gaijin.
The payment of the User’s Share is calculated in Euro or US Dollars according to the corresponding currency rate of the European Central Bank (ECB), and if conversion according to the ECB currency rate is not possible - according to the corresponding currency rate of OANDA (www.oanda.com), on the day of payment. If the payment in Euro or US Dollars is not possible for any reason, the Parties may agree on another payment currency, provided that the conversion shall be made as described in this paragraph above. The agreed currency and relevant amount shall be provided by the User in the corresponding invoice.
6.6. When the User meets the conditions specified in paragraph 6.5 and obtains the rights to request the transfer of Gaijin Coins into US Dollars or Euros, but does not send such request to the Gaijin, Gaijin shall be entitled to the following:
A) if the User does not send the request within 365 days period from the moment such User obtained the right to send such request, Gaijin has the right to refuse to pay User’s Share accrued in Gaijin Coins in Euro or US Dollars, if after the expiration of 365 days period the payment request is finally received by Gaijin;
B) if the aggregate amount of Gaijin Coins accrued as a User’s Share on the User’s in-Game account is more than 5 000 Gaijin Coins and the User does not send the request within a month from the moment such User obtained the right to send such request, Gaijin has the right to transfer the amount in US Dollars or Euros to the User’s bank account (details of which were provided by the User’s to the Gaijin at the last time) without the receipt of the respective User’s request and approval. For the avoidance of doubt, Gaijin is not obligated to transfer the amount to the User’s bank account, Gaijin still has the right not to transfer the aggregated amount and to refuse to pay User’s Share accrued in Gaijin Coins in Euro or US Dollars, if after the expiration of 365 days period, User does not send the respective request.
6.7. In case any in-Game purchases are made by the User, the Gaijin Coins purchased for real money shall be debited, only if there are no more Gaijin Coins on the User's in-Game account accrued as User's Share can be debited.
6.8. You hereby agree that in some cases Gaijin may not have a real possibility to transfer the User's Share in Euro or US Dollars, and you also agree that in some cases the option of transferring the User's Share in Euro or US Dollars by the wire transfer to the bank or PayPal account may be impracticable. You hereby also agree to take all reasonable efforts to ensure that payments can be received by you in Euros or US Dollars by the wire transfer to the bank or PayPal account. But if neither of the ways listed in this paragraph can be used to transfer the amount of Gaijin Coins accrued as User's Share into US Dollars or Euros and more than 2 years have passed since the moment when the User's Gaijin Account has been last time active, no sum shall be due from Gaijin to the User and the term of all such claims shall be considered expired. This paragraph shall be applicable if Gaijin did not use its right specified in paragraph 6.6. (a) before the expiration.
6.9. Terms of payment (including the conditions of transfer of the Gaijin Coins to US Dollars and Euros) may be unilaterally amended by Gaijin, as well as any other terms of the Agreement as provided in the preamble of the Agreement. Any amendments to the terms and conditions concerning payouts hereunder shall not have retroactive effect.
1. If in accordance with applicable law, Gaijin is obligated to withhold applicable taxes from any and all amounts payable to You under this Agreement, Gaijin is deemed entitled to withhold such taxes from the amounts due to You and fulfill its obligations to the tax authorities. Should a double taxation treaty be applicable, the Gaijin shall inform the User that Gaijin needs to receive the User's tax residence certificate. Unless otherwise agreed by the Parties, the User shall submit to Gaijin a scan-copy of such certificate unless otherwise required under the applicable laws. You are solely and fully responsible for the timely and full payment of applicable taxes from all amounts received from Gaijin under this Agreement.
2. If not defined otherwise, each Party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any governmental authority applicable to its activities in connection with this Agreement. None of the Parties is responsible for taxes that may be imposed on the other Parties.
8. TERM AND TERMINATION
8.1. The term of this Agreement (“Term") shall begin from the moment of submitting User-Generated Content to Gaijin's site or otherwise and shall continue in perpetuity. Without prejudice to any other Gaijin's rights, Gaijin may immediately terminate this Agreement if you fail to comply with any of the limitations, warranties, or other obligations set forth in this Agreement, or if Gaijin ceases operating the Gaijin Website where your User-Generated Content has been published - in regard to such content.
9. INFRINGING USER-GENERATED CONTENT
9.1. The Gaijin's site is not pre-moderated (pre-screened) and objectionable material may occur without our knowledge. The User-Generated Content submitted to Gaijin Website has not previously been viewed and has not been edited by Gaijin. Gaijin does not endorse or approve any User-Generated Content available on Gaijin's site.
Upon receipt of a sufficiently substantiated notice from the rightsholders and/or any person whose rights are infringed Gaijin will disable access to or remove the submitted User-Generated Content from the Gaijin Website.
9.2. Gaijin reserves the right to remove, disallow, block or delete any posting you make on Gaijin's site if, in its opinion, the User-Generated Content published by you does not comply with the requirements of this Agreement. Moreover, Gaijin has the right in its sole discretion to remove, disallow, block, or delete any User-Generated Content:
- that Gaijin considers as a violation of this Agreement, and/or
- In response to complaints from other users or third parties.
As a result, you should save copies of any User-Generated Content that You post to Gaijin's site on your personal device(s) if you want to ensure that you have permanent access to copies of such User-Generated Content.
9.3. Gaijin does not guarantee the accuracy, integrity, appropriateness, or quality of any User-Generated Content, and under no circumstances will not be liable in any way for any User-Generated Content. Gaijin accepts no liability in respect of any content or information submitted by the Users and for further exploiting such content by Gaijin or by any third parties.
IF YOU WISH TO COMPLAIN ABOUT INFORMATION AND MATERIALS UPLOADED BY OTHER USERS OR COMPLAIN ABOUT FALSE REMOVAL OR BLOCKING OF YOUR USER-GENERATED CONTENT, PLEASE CONTACT US AT: LEGAL@GAIJIN.NET.
10.1. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Republic of Cyprus without reference to conflicts of law rules and principles. This Agreement shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The parties to this Agreement will seek to resolve without litigation all future disputes and/or claims which may arise between them relating to this Agreement and the transactions contemplated hereby and thereby, and if such settlement is not possible, the dispute shall be submitted for further consideration to competent court of the Republic of Cyprus.
10.2. This Agreement is the entire agreement between you and Gaijin, and supersedes any other prior agreements, proposals, communications, or advertising, oral or written, with respect to the User-Generated Content or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be otherwise construed so that it becomes legal and enforceable, however, remaiming as close to the original text as possible, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless expressly made in writing.
10.3. In all other aspects regarding the subject matter of this Agreement which are not specified by this Agreement, including but not limited to termination, warranty disclaimer, or severability, the relevant provisions of Terms of Service shall apply to this Agreement.