NacreousMobile – Terms of Use(EXCLUSIVE LICENSE AGREEMENT)
IMPORTANT NOTICE:THIS AGREEMENT is entered into on January 1, 2024（the “Effective Date”） by and between NACREOUS MOBILE LIMITED, a Hong Kong corporation, whose address is FLAT/RM B3 19/F TUNG LEE COMMERCIAL BUILDING91-97 JERVOIS STREET SHEUNG WAN HK and registration number is 2489709 (“Licensor”), and AROMA INFINITY LIMITED, a Hong Kong corporation, whose address is Flat B 9/F Mega Cube No 8 Wang Kwong Road, Kowloon, Hong Kong and registration number is 3148562 (“Licensee”).
W I T N E S S E T H:
WHEREAS, Licensor is the sole and exclusive owner throughout the world of all rights in and to the software video game work identified in Schedule “A” hereto including any and all copyright, trademark or other proprietary rights related thereto or arising therefrom (the “Property” or “Properties”);
WHEREAS, Licensee is desirous of acquiring from Licensor an exclusive license to market and/or distribute the Properties on various mobile phone and mobile device Platforms as defined on one or more Schedule(s) of Licensed Products in the form attached hereto as Schedule “A” (the “Licensed Products”) in the Territory. Each such Schedule shall be incorporated herein by this reference and subject to all of the terms and conditions of this Agreement; and
WHEREAS, Licensor is willing to grant such rights to Licensee, and both Licensor and Licensee have agreed to the terms and conditions on which Licensee shall acquire such rights.
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows:
1. LICENSE
Licensor hereby grants to Licensee for the Term of this Agreement as recited herein the exclusive right and license to use the Property in association with the reproduction, sale, publication and distribution of the Licensed Products solely throughout the Territory and solely in the languages and on the Platforms specified in Schedule “A”. This shall include, but not be limited to, a license under any and all intellectual property rights that Licensor may presently have or may acquire in the future with respect to the Properties. Except as provided herein, this license shall further include the exclusive right and license to the following:
Licensor acknowledges and agrees that the rights and licenses granted to Licensee pursuant to this Section 1 and this Agreement are exclusive to Licensee in the Territory. Licensee therefore agrees that it shall cease and wind down all prior efforts to market, distribute and/or otherwise exploit the Property and/or any works and/or versions of games based upon the Property, either directly or indirectly, on any Platform in the Territory as of the Effective Date. All pre-existing sales and/or distribution channels in conflict with Licensee’s exclusive rights shall be terminated in total no later than 30 calendar days after entering into this Agreement. Time is of the essence with regard to such cessation and termination.
During the term of this Agreement (including the renewal term, if applicable) and 3 years after expiration or termination, if Licensor develops other skill base games that has similar gameplay(function or category) to Licensed Products as described in Schedule “A”, Licensee shall have the exclusive right, but not the obligation (the “Pre-Emptive Right”) to publish and distribute such games on the same terms and conditions as all other potential licensees.
Except as expressly provided herein, Licensor retains all rights, including all intellectual property and proprietary rights, in and to the Property including but not limited to the right to create, market, manufacture, distribute and sell derivative and ancillary works based thereon including, without limitation, sequels, prequels, ports, conversions and translations, on various platforms whether now known or hereinafter devised.
2. TERRITORY
For purposes of this Agreement, the Territory shall mean: Worldwide, excluding only the mainland territory of the People’s Republic of China (i.e. the Territory shall include Hong Kong, Macau, and Taiwan).
3. TERM
This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the Effective Date and shall extend for Three (3) years (the “Term”) thereafter. On the same terms and conditions as all other potential licensees, Licensee has preferential right to renew this Agreement for an additional three (3) year term, commencing Sep 1, 2027, and expiring Aug 31, 2030, by notifying Licensor in writing.
4. LICENSOR RESPONSIBILITIES
A. Game Distribution Assistance. Licensor shall provide Licensee with necessary assistance, as mutually agreed, in distributing each version of Licensed Product.
B. Testing and Certification. Licensor will perform all necessary testing on all deliverables to be delivered to Licensee pursuant to this Agreement in accordance with a test plan developed by Licensor and approved in advance by Licensee, which test plan will include all testing requirements specified by Licensee and its technology providers and distribution partners from time to time and must be adequate to identify all Unacceptable Deficiencies. “Unacceptable Deficiencies” means any bug or malfunction that would cause the applicable Licensed Product to fail to conform to specifications and other requirements set forth in this Agreement. Licensor shall bear all costs associated with its testing of all deliverables prior to delivery to Licensee. When and as Unacceptable Deficiencies are identified to Licensor (whether identified by Licensee or its technology providers or distribution partners or otherwise), during the Term, Licensor agrees to correct the Unacceptable Deficiencies and deliver the revised Licensed Product to Licensee (or Licensee’s designee) as quickly as possible, and in any event within five (5) business days of having received notice thereof.
C. Advertising and Promotion. On the terms and conditions set forth in this Agreement, Licensor agrees to provide reasonable assistance and supply additional materials (including relevant marketing materials, artwork in a form acceptable to Licensee), as requested by Licensee, in order to assist Licensee in the reproduction and marketing of any and all Licensed Products provided for in Section 1 above. Licensor shall have final approval over all related advertising, marketing and promotional materials to be used in connection with the distribution of the Licensed Product(s) in its sole discretion.
D. Updates, Improvements and Bug Fixes. In addition to the requirements of Section 5(B) above, during the Term while the Licensed Product(s) is distributed on any given Platform by Licensee, Licensor agrees to provide updates, improvements, and/or bug fixes for that version of the Licensed Product as and when reasonably requested by Licensee. All such updates, add-ons, DLC (downloadable content), as well as any other new content (“Updates”) that Licensor may create with regard to the Properties and/or Licensed Products, shall be provided to Licensee on an exclusive basis during the Term.
E. Integration of Licensee Tools and Materials. Licensor shall use its best efforts to integrate all promotional and cross-promotional materials into all Licensed Products by mutual Agreement, including without limitation including of API software and other materials necessary to enable “Tell a Friend”, “More Games”, Licensee’s icon frame, pop up, in game and/or other advertisements and/or virtual goods, or similar features as well as links to promotional materials relating to other Licensee products and games.
F. Translations and Localization. Licensor agrees to provide any new or additional Localization versions of the Licensed Products of the Properties developed by Licensor during the Term subject to all of the terms of this Agreement as if such new or additional versions had originally been included in Schedule “A”.
G. End User Information/Information Licensor Collects. Licensor will ensure that the Licensed Products shall collect all information and data requested by Licensee under the constraints and limitations of any applicable privacy protection laws and regulations of the Territory. All information and data collected through the Licensed Products, whether by Licensor or Licensee, (the “Collected Information”) is collected by or on behalf of Licensee, and in all cases owned by both Parties. Licensor will ensure that the Licensed Products collect only the Collected Information specifically requested by Licensee. Licensor will provide Licensee with real-time access to all Collected Information collected by Licensor. Under no circumstances will Licensor collect any personally identifiable information of users of the Licensed Products without a user’s express consent. Licensor further expressly agrees that all such Collected Information shall also be considered Confidential Information as provided below.
J. Systems Audit. For purposes of ensuring compliance with all security of obligations of Licensee with regard to the Collected Information, Licensor agrees that Licensee may conduct a systems audit of all facilities, servers and other infrastructure related to any Licensed Products that Licensor hosts at any time and upon reasonable notice to Licensor.
5. LICENSEE RESPONSIBILITIES
A. Distribution, Marketing, and Sale of Licensed Products. Licensee will be responsible for research, analysis and plan development of distribution, marketing, and sale of the Licensed Product in regard to the Platforms, now existing or hereafter created, and in any manner agreed by Licensor, including without limitation all decisions regarding monetization strategies and methods, distribution channels, all the advertising expenses shall be paid by Licensor.
B. End User Agreements and Policies. Licensee shall distribute and license the Localization versions to End Users pursuant to an end user license agreement that is enforceable in the Territory and is at least as protective of Licensor’s rights and liabilities as Platforms’ Licensed Application End Users License Agreement would be if Licensee were making such software available through the Platforms. Licensor will not be a party to the end user license agreement, privacy policy, or any other agreements or policies applicable to the Localization versions, which will be solely between Licensee and each End User. Licensor will not make any representations or warranties, or incur any obligations or liabilities, on behalf of Licensee.
C. Security. Licensee will make reasonable commercial efforts to implement and maintain physical, technical and administrative security measures and comply with applicable law to protect End Users data (i.e., information provided in connection with acquisition of the Licensed Products that is about an identifiable individual who is an End User), usage data (e.g., user profile data, game play metrics and End User transaction data) and the Licensed Products softwares. The standard of such security requirements shall not be any lower than those implemented by Licensee with respect to any other online games operated or published by Licensee.
D. Licensee should grant Licensor all access of all raw data logs collected from End User and access of necessary data analysis dashboards which are helpful for licensor to do data analysis to improve the Licensed Products. The data analysis dashboards should display at least basic data metrics (such as IAP revenue, ad monetize revenue, retention rate etc.) The access can be as following types:
(1) access to the database which stores the raw player logs.
(2) access to the data analysis dashboard
6. OWNERSHIP
A. Subject to the license granted in the this Agreement, Licensor retains all rights, title, and interest in the Licensed Products (including all Localization versions and all translations) , the portion of the promotional materials that contains the Licensed Products 's content and material, Licensor marks, any part thereof in any language, including but not limited to any Updates, Upgrades, improvements, translations, modifications, enhancements, additions, variations, patches and/or debugs thereto, and the portion of the Derivative works that used the Licensed Products 's content and material. Licensee shall not continue to use after Termination.
B. Licensee agrees that it will not seek or obtain any registration of the trademarks and other intellectual property rights relating to or arising from the Property and/or the Licensed Products in any name or participate directly or indirectly in such registration without Licensor’s prior written consent.
C. To the extent that Licensee may obtain or be deemed to have obtained any such rights in any materials provided by Licensor, Licensee shall execute any and all instruments deemed by Licensor, and/or its respective attorneys or representatives, to be necessary to confirm, assign and/or transfer such right, title or interest in or to Licensor, and all costs, if any, related to such transfer documents shall be covered by Licensor.
7. TERMINATION
The following termination rights are in addition to the termination rights that may be provided elsewhere in the Agreement:
A. Immediate Right of Termination. Either party shall have the right to immediately terminate this Agreement by giving written notice to the other party in the event that (1) Licensee files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if Licensee discontinues or dissolves its business or if a receiver is appointed for Licensee or for Licensee's business and such receiver is not discharged within sixty (60) days; or (2) the Licensed Products is prohibited from distribution on any platform(s) or all the payment gateways cease to provide payment collection services, and such situation remains unchanged within one hundred and eighty (180) days.
B. Licensor’s Right to Terminate. Licensor shall have the right to terminate this Agreement on sixty (60) days’ written notice to Licensee in the event of a breach of any provision of this Agreement by Licensee.
C. Licensee’s Right to Terminate. Except as otherwise provided herein, Licensee shall have the right to terminate this Agreement, or any Schedule hereto, with cause, on sixty (60) days’ written notice to Licensor in the event of a breach of any provision of this Agreement by Licensor, provided that, during the sixty (60) day period, Licensor fails to cure such breach.
8. POST TERMINATION RIGHTS
A. Upon the expiration or termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to Licensor and Licensee shall discontinue all use of the Property and shall discontinue the sale or distribution of the Licensed Products within one (1) months thereafter. All compensation otherwise due Licensor pursuant to Section 4 above shall remain due and owing pursuant to Section 4(C).
B. Termination of this Agreement pursuant to Section 9 (A) shall not be deemed as termination due to breach, thus neither Party shall pursue any rights or remedies it may have at law or in equity with respect to situations under Section 9(A). But it shall not release either Party from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination.
9. REPRESENTATIONS AND WARRANTIES
A. Licensor represents and warrants that it is the sole and exclusive owner, throughout the world, of the Property and that it has the right and power to grant and assign the rights granted and assigned herein and that there are no other agreements with any other party in conflict with such grant. Licensor further represents and warrants that it has not assigned, licensed, or in any other manner encumbered, diminished, or impaired its rights in and to the Property in a manner inconsistent with the rights granted to Licensee herein.
B. Licensor further represents and warrants that the property as submitted to Licensee is original and does not infringe any intellectual property rights of any third party. In addition to any other rights or remedies that Licensee may have hereunder, should any aspect of any version of a Licensed Product become, or, in Licensee’s opinion, is likely to become, the object of any infringement or misappropriation claim or suit as a result of any such works or materials, or should Licensor otherwise have failed to obtain any right or license necessary for Licensee to exploit any Licensed Product as provided hereunder to Licensee’s satisfaction; Licensor will promptly procure for Licensee, at Licensor’s sole expense, the right to use such version of the Licensed Product in all respects, or will replace or modify such version of the Licensed Product accordingly to make it non-infringing, including without limitation obtaining at Licensor’s sole expense, a license for any and all rights necessary for Licensee to exercise Licensor’s rights under this Agreement with regard to any and all third party software or other content. Third party content to which these provisions apply shall include without limitation any and all source and object code, art assets, graphics, sound assets, music, documentation, and/or any other materials incorporated into or associated with the Licensed Products. In the event that Licensor fails to cure any such deficiency and/or to obtain any necessary license to Licensee’s satisfaction, Licensee may, in addition to any other rights or remedies Licensee may have under this Agreement and in its sole discretion, negotiate for and obtain any such rights as Licensee deems necessary, including any third party license, by itself and charge Licensor for all reasonable costs associated therewith and/or offset any such costs against any sums otherwise due and owing by Licensee to Licensor.
C. Licensor represents and warrants that there are no outstanding claims or litigation pending against or involving the title, ownership, or copyright in the Property or in any part thereof, or in any rights granted herein.
D. Licensee represents and warrants that: (i.) it has the power and authority to enter into this Agreement and to fully perform its obligations hereunder; (ii.) this Agreement has been executed by its duly authorized representative; (iii.) it is under no contractual or other legal obligation which would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement; and (iv.) neither the Licensed Product nor anything that it contributes to the Licensed Product shall infringe upon any intellectual property rights of any third party.
E. Both Licensor and Licensee each represent for them self that neither it nor any of its representatives will, directly or indirectly, during the Term of this Agreement and for the one year period following the date of termination thereof, hire or assist in the hiring of, or solicit or cause to be solicited the employment of, any employee of the other party without that party’s express prior written consent; provided, however, the foregoing shall not apply to Licensee’s hiring any person who answers an unsolicited advertisement for employment.
10. INDEMNITY
A. Licensee agrees to defend, indemnify and hold Licensor (including, without limitation, Licensor’s subsidiaries or affiliated companies), and its officers, directors, agents, representatives and employees, harmless against all costs, liabilities and, expenses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Licensor based on the manufacture or sale of the Licensed Product including, but not limited to, actions founded on acts or omissions of Licensee or any violation of its representations and warranties herein.
B. Licensor agrees to defend, indemnify and hold Licensee (including without limitation Licensee’s parent company as well any subsidiary or affiliated company of Licensee or Licensee’s parent), and all officers, directors, agents, representatives, and employees, harmless against all costs, liabilities and expenses, (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Licensee based upon the manufacture or sale of the Licensed Product including, but not limited to, acts or omissions of Licensor or any violation of its representations and warranties herein.
Each party acknowledges that it will have access to proprietary or confidential information (“Confidential Information”) of the other party, including, but not limited to, the terms of this Agreement. During the Term and thereafter, each party will protect the Confidential Information of the other party in the same manner in which it protects its own Confidential Information (but in any event will use no less than reasonable care), and agrees to not use any such Confidential Information except as may be specifically permitted hereunder. Confidential Information disclosed by either party and entitled to protection under this Agreement shall include, without limitation, source code, Licensor’s game concepts, design documents, specifications, either party’s financial information, either party’s or a third party’s confidential product information, security methods incorporated into the Licensed Product or the Property and the terms of this Agreement, whether or not any such information is marked as confidential, and, in addition, any other information identified as confidential by appropriate markings on any documents exchanged or, if disclosed orally, on a subsequent written notice provided within ten (10) days of disclosure. The obligations of confidentiality and non-use specified above will not apply to any information of one party which: (i.) was known by the other party prior to the date of this Agreement and not obtained or derived, directly or indirectly, from such party, or if so obtained or derived, was lawfully obtained or derived and is not held subject to any confidentiality or non-use obligations; (ii.) is or becomes public or available to the general public or the computer software industry otherwise than through any act or default of the other party; (iii.) is 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; (iv.) is independently developed by such party without use of the other party's Confidential Information; or (v.) is required to be disclosed by one of the parties pursuant to applicable law or under a government or court order; provided, however, that (i) the obligations of confidentiality and non-use will continue to the fullest extent not in conflict with such law or order; and (ii) if and when a party is required to disclose such Confidential Information pursuant to any such law or order, such party will, to the extent legally permissible, give notice to the other party to allow such party to make efforts to obtain a protective order or take such other actions as will prevent or limit, to the fullest extent possible, public access to, or disclosure of, such Confidential Information. The provisions of this Section 13 shall survive any termination of this Agreement.
12. NOTICES
A. Any notice required to be given pursuant to this Agreement may be provided by Licensee by means of electronic mail. If necessary, Parties may request each other to mail any such Notice by certified or registered mail or delivered by a national overnight express service.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
13. JURISDICTION AND DISPUTES
A. This Agreement shall be governed in accordance with the laws of Hong Kong.
B. Any dispute or controversy arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration and shall be conducted in English, Such disputes or controversy shall then be submitted to Hong Kong International Arbitration Centre (HKIAC), located in Hong Kong Special Administrative Region for arbitration in accordance with HKIAC Arbitration Rules. The Arbitration Council shall comprise 1 arbitrator. Language of arbitration shall be English. The arbitration result is final and binding upon All Parties.
14. RELATIONSHIP OF PARTIES
The relationship between the parties is and shall at all times be that of independent contractors and neither shall be deemed an employee or agent of the other. Nothing in this Agreement is intended to, nor shall be deemed to, constitute a partnership or joint venture between the parties. Licensor agrees that it is Licensor’s responsibility as an independent contractor to remit any and all taxes to its government based on the compensation paid to Licensor and/or its employees or subcontractors under this Agreement, including without limitation any and all corporate, income, payroll and/or other taxes or fees of any kind. Licensor will report all compensation received by Licensor pursuant to this Agreement to all appropriate authorities as required by law.
15.EQUITABLE RELIEF.
Both parties acknowledge that the performance of the obligations hereunder and the rights and licenses granted hereunder pursuant to this Agreement are of a unique, unusual, extraordinary and intellectual character which gives them a special value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law, that a material breach by either party of this Agreement, except with regard to a good faith dispute regarding any sums payable by Licensee, will cause the other party great and irreparable injury and damage and, therefore, that both parties will be entitled to injunctive relief to prevent such injury or damage.
16. AGREEMENT BINDING ON SUCCESSORS
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors, executors and administrators, as the case may be. If the exclusive operation right of Licensed Products owned by Licensor is transferred during the term of this Agreement, the new right holder of the exclusive operation right of Licensed Products will continue to authorize Licensee to perform all rights and obligations under this Agreement in accordance with the provisions of this Agreement.
17. ATTORNEYS’ FEES.
In the event of any proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses incurred in connection with such proceeding whether in arbitration, at trial, on appeal or in collection of any judgment or award, including without limitation all arbitration fees and costs, court costs and reasonable attorneys’ and expert witness’ fees, whether or not such proceeding is prosecuted to judgment.
18. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
19. SEVERABILITY
If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause, or provision and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
20. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. The Agreement may be signed by facsimile in counterparts, each of which will be deemed an original Agreement for all purposes and which collectively will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.
Schedule “A”
Licensed Products
Solitair Tycoon Win Cash App
Block Puzzle Battle Win Cash
Solitaire Tycoon Win Cash App: Jun/21/2024
Block Puzzle Battle Win Cash: Dec/21/2023
1.3 Designate Languages: All available;
1.4 Platform(s): All available;
1.5 Project APP Store Link:
https://apps.apple.com/app/solitaire-tycoon-win-cash-app/id6503892707
https://apps.apple.com/us/app/block-puzzle-battle-win-cash/id6471829355