DEVELOPER AND PUBLISHER GAME LICENSE AGREEMENT

This Publisher and Developer Game License Agreement (the Agreement) is entered into by and between Developer/Publisher and Funh5.top, having its registered office at VietNam (Funh5.top) with respect to the use of the platform managed by Funh5.top's partner and made available under the following domain name: https://funh5.top/ and https://www.funh5.top/ (the Platform) (hereinafter referred to as Distributor), as well as the use and exploitation of the Contents made available to Developer/Publisher from time to time on the Platform and the rights and obligations of Distributor and Developer/Publisher in respect thereof.

Capitalised terms used in the above conditions shall have the same meaning as set forth in the definitions below. In addition to the above conditions, which are binding between the Parties, this Agreement shall be governed by the following terms and conditions.

This agreement is made up of two sections for SECTION A: Developer and SECTION B: Publisher

SECTION A: DEVELOPER

  1. DEFINITIONS AND INTERPRETATION
    1. DEFINITIONS In addition to the terms defined above, the following terms shall have the meaning set forth below, unless clearly required otherwise by the context where they are used:

      Account means the account opened in Developer's name on the Platform following the entering into of this Agreement and completion of the registration process.

      Business Day means any day other than Saturday or Sunday (or a day which is public holiday in Vietnam) when banks are open for their regular business in Vietnam.

      Catalogue means the catalogue of Contents uploaded on Developer's Account from time to time, or any other catalogue of videogames and/or other contents used by Distributor at any time which includes one or more Contents.

      Laws means the law of Socialist Republic of Vietnam.

      "Clause" means any clause of this Agreement.

      "Confidential Information means any technical, financial, business, economic or other information which is disclosed in any manner or through any means by any Party (the Disclosing Party) to the other Party (the Receiving Party), that is designated as confidential by the Disclosing Party at the time of its transmission or at a later stage, or that, given the nature of the information or the circumstances surrounding the disclosure, should be reasonably considered to be confidential, irrespective of whether such information is provided in written, oral, electronic, digital, visual or other forms (such as by means of analyses, compilations, forecasts, studies, software or other documents) and including, without limitation: (i) any information relating to technology, know-how, customers, business plans, promotional, distribution and marketing activities, finances and other business affairs of the Disclosing Party; (ii) any information related to the codes of the Contents (including any trade secrets that may be embodied in such codes, and having regard to both the Source Code and any resulting codes); (iii) any proposals of possible new products or services; (iv) any information related to the marketing, promotion, distribution and economic exploitation of the Contents in terms of revenues, traffic and other possible variables; and (v) any information related to the terms of this Agreement and the relationship between the Parties. Confidential Information does not include any information that: (i) is or becomes publicly available other than as a result of a breach of this Agreement; (ii) was already known by the Receiving Party at the time of its receipt from the Disclosing Party; (iii) has been received by the Receiving Party from a source (other than the Disclosing Party) that was not prohibited from disclosing such information by any legal, contractual or fiduciary obligation; and/ or (iv) has been independently developed without any access to the information provided by the Disclosing Party or any reverse engineering process

      "Content" means each and every game uploaded on Developer's Account from time on the Platform.

      "Distribution Channel" means each and every distribution channel, platform and technology as Distributor and/or any Partner consider appropriate, including, without limitation, through any white label solution, as may be defined by common industry standards, provided by Distributor and/or the Partner for any third party services or for their own services, as well as web sites, telco services, OEM / ODM service or operators, value-added services (VAS) platforms, consoles, social networks, applications, alternative stores, etc. and irrespective of the methods used to generate Revenues on any such channel.

      "Distribution Costs" means any fees, costs and charges due and payable by Distributor to any external agency, company or entity in connection with the distribution of the Contents (including, without limitation, any fees, costs and charges payable in connection with the storage of the Contents on servers, the operations of the Platform, etc.) as well as any fees, costs and charges due and payable by Distributor to the Partners or other operators, carriers, distributors or sub-distributors, etc.

      "Effective Date" means the date when this Agreement becomes effective and binding between the Parties, being the date when (i) this Agreement has been duly entered into by the Parties, and (ii) Developer's Account has been regularly opened on the Platform.

      "Gross Revenues" means all revenues generated and actually received by Distributor from the distribution of the Contents in accordance with this Agreement, including, without limitation, all revenues deriving from In-Content Advertising, In-Content Purchase and/or Pay-to-Play Schemes.

      "In-Content Advertising" means any advertising made in the Content.

      "In-Content Purchase" means any purchase of a digital product, item or service made in the Content.

      "Integration Kit" means the software delivered by Distributor to the Developer, which the Developer undertakes to integrate in the Content in accordance with Clause 3.1 below.

      "IP Rights" means all industrial or intellectual property rights, either registered or unregistered, including, without limitation, trademarks, patent rights, design rights, trade names, copyrights, neighboring rights, moral rights, trade secrets, database rights and similar proprietary rights.

      "License" shall have the meaning set forth in Clause 2.1 below.

      "Net Revenues" means the Gross Revenues less (if applicable) VAT, Transaction Costs and Distribution Costs.

      "Owner of the IP Rights" means the person and entity that owns from time to time the IP Rights relating to the Content, being the Developer or any other person or entity that ultimately owns such IP Rights, as the case may be.

      "Parties" means Distributor and the Developer (and Party shall mean either of them).

      "Pay-to-Play Scheme" means any distribution arrangement where revenues are generated by one-off and/or periodic payments directly or indirectly made by Users through credit or debit cards, mobile credit, banking, e-money or payment instruments or in any other manner.

      "Platform Credentials" means the credentials (username, password, etc.) used by the Developer to access the Account and use the Platform.

      "Partner" means any entity or person (including any third party publisher website, app application and other platform, such as Facebook and any similar web platform or publisher) having access to the Platform in such capacity for the purposes of distributing the contents made available on the Platform (including the Content, where applicable), or any other person or entity engaged by Distributor to act as sub-distributor and/or publisher in connection with the Contents (regardless of any access to the Platform).

      "Report" means the report indicating the Revenue Share payable to the Developer in respect of the relevant Reporting Period in accordance with the provisions set forth in this Agreement.

      "Reporting Period" means each calendar month.

      "Revenue Share" means the consideration due by Distributor to the Developer in accordance with this Agreement.

      "Source Code" means the source code or the HTML5 build of the Content

      "Term" means the term of this Agreement, as regulated in accordance with Clause 7.

      "Transaction Costs" means any costs, fees and expenses which are charged to Distributor by any payment service providers used by Distributor, such as credit card fees, gateway and service fees and other transaction-based charges, chargebacks and reversals.

      "User" means any player of the Content.

    2. INTERPRETATION Words used in the singular number include the plural number and vice versa. Reference to any gender includes each other's gender. Reference to any agreement, document or instrument means such agreement, document or instrument, inclusive of any recitals and attachments thereto, as amended or modified and in effect from time to time in accordance with the terms thereof. Reference to any person or entity includes such person or entity's successors and assignors, provided that any such succession or assignment is not prohibited under this Agreement. Reference to any provision of law or regulation means such provision as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder.
  2. LICENSE
    1. GRANT OF THE LICENSE By entering into this Agreement, and subject to the conditions set forth hereunder, Developer grant to Distributor, which hereby accepts, a worldwide license to use, distribute, market, display, exploit, promote, advertise, monetize, publish the Content and make available such Content on its own channels and/or to the Partners and on the related channels, by publishing them on the Platform or in any other manner as Distributor may deem to be appropriate or convenient (the License). Subject to the provisions set forth in Clause 8.12 below, such License shall be non-exclusive.
    2. CERTAIN RIGHTS FALLING WITHIN THE SCOPE OF THE LICENSE It is understood that the scope of the License shall include, without limitation, the right of Distributor to:
      1. (a) create marketing materials for the Contents and promote and advertise the same on the Platform and/or in all and any media as Distributor may deem to be appropriate;
      2. (b) use and reproduce free of charge the names, trademarks, trade names, drawings, logos, sound, music, symbol and in general any copyright and IP Rights relating to, or incorporated in, or applicable to, the Content, and/or associated to Developer (or the Owner of the IP Rights, as the case may be) for the purpose of allowing Distributor to exercise the rights entrusted to it under this Agreement;
      3. (c) use the Content in executable format for its own use;
      4. (d) translate or modify the Contents to incorporate them into another software, and/or adopt any measures and changes to the Contents in order to increase their profitability;
      5. (e) enable the Partners to access the Contents and distribute them through their Distribution Channels;
      6. (f) monetize the use of the Contents through agreements entered into by Distributor with the Partners, and through any possible methods (including, without limitation, In-Content Advertising, In-Content Purchase and Pay-to-Play Schemes);
      7. (g) sub-license to the Partners any and all of the rights falling within the scope of the License; (h) enable the Users to access and display the Contents through the Distribution Channels.
    3. APPLICATION OF THE LICENSE TO THE CONTENT(S) It is further understood that the License shall apply to each and every Content uploaded on Developer's Account from time to time on the Platform.
    4. NO EXCLUSIVITY RIGHT OR OBLIGATION This Agreement does not create any exclusivity obligation for Distributor to distribute the Content. Accordingly, Distributor will be entitled at any time to use, distribute, market, display, exploit, promote, advertise, publish and make available any other content, game or software, whose contents and nature may be similar to the Contents or compete with the same, either directly or indirectly. Nothing in this Agreement shall be construed as preventing Distributor in engaging in this business or any type of activities also with third parties. The provision set forth in this Clause 2.4 is without prejudice to Clause 8.12 below.
    5. UNAUTHORIZED USE OF THE CONTENT Without prejudice to any other obligations undertaken by Distributor under this Agreement, Developer expressly acknowledge and agree that, due to technological reasons, it may be difficult or impossible for Distributor to prevent Users from using the Contents on any platforms, websites or channels not authorized by Distributor or any of its Partners. Accordingly, Distributor shall not be held liable in respect of any such unauthorized use of the Contents  including, without limitation, as a consequence of the unauthorized use of their embedded code unless the unauthorized use is attributable to gross negligence or willful misconduct by Distributor.
    6. NO FURTHER COMMITMENTS OR ASSURANCES Developer expressly acknowledge and agree that Distributor do not undertake any obligation or commitment with respect to the amount of Net Revenues or Users resulting from the distribution of the Contents in accordance with this Agreement and that no assurance is implicitly or expressly given by Distributor in such respect. In particular, and without prejudice to the generality of the foregoing, by entering into this Agreement Distributor does not undertake any obligation in terms of minimum payments, distribution volumes, Net Revenues, Users, etc.
  3. DISTRIBUTION OF THE CONTENTS
    1. INTEGRATION KIT Distributor undertakes to deliver to the Developer, promptly after the uploading of a Content on the Platform, the Integration Kit. Developer undertakes to use the Integration Kit for the purposes of ensuring that the Content may be distributed through the Platform. Developer expressly acknowledge and agree that any failure by Developer to duly and properly use the Integration Kit may adversely affect the distribution and/or monetization of the Content on the Platform, or prevent such distribution and/or monetization in which cases Distributor shall be relieved from any and all liabilities or responsibilities towards Developer.
    2. CONTENTS UPLOADED ON THE PLATFORM Developer shall ensure that the Content uploaded from time to time on the Platform does not have any defect, flaw, technical problem or malfunctioning, whether disclosed or not disclosed to Distributor at the time when Developer upload the Content on the Platform. Should the Content have any defect, flaw, technical problem or malfunctioning, Distributor shall be under no obligation to distribute such Content or perform any other activities regulated under this Agreement, and shall be fully discharged from any obligations and liabilities related to such activities.
    3. DELIVERY OF THE SOURCE CODE AND RELATED UPDATES Developer shall deliver to Distributor upon request the complete and true Source Code (including all related visual, graphic, audio and audio-visual works). The Source Code must be provided without any In- Content Advertising, external payments providers, external links or external dependencies. It will be verified, cleaned and optimized by Distributor and hosted on the servers of Distributor or the Partners. Any further update to the Source Code must also be promptly delivered to Distributor upon request and will be subject to the other provisions of this Clause 3.3.
    4. INCLUSION OF THE CONTENTS IN THE CATALOGUE Developer expressly acknowledge and agree that the Contents may be included in every Catalogue offered by Distributor for the direct or indirect distribution of the Contents. The inclusion of the Contents in a Catalogue will not give Developer any right on such Catalogue, and Distributor shall be under no obligation to provide Developer with any information on the composition, contents and any other aspects relating to such Catalogue. Developer expressly acknowledges and agrees that Distributor can create or modify the Catalogues at our own discretion and that Developer has no right whatsoever with respect to the composition of any such Catalogue or the inclusion of one or more Contents in any Catalogue created by us.
    5. AVAILABILITY OF THE CONTENTS TO THE PARTNERS The Partners will be allowed by Distributor to access the Contents by way of a link made available by Distributor through our own Platform, this being without prejudice to the possibility for Distributor to directly or indirectly distribute the Contents through other technical arrangements or devices and/or agree on different arrangements with the Partners to access the Contents (e.g. through other technical arrangements, services or platforms other than the Platform).
    6. NO OBLIGATION OF DISTRIBUTOR FOR THE MANAGEMENT OF THE CATALOGUE AND THE PLATFORM Except as otherwise provided in this Agreement, no obligation is undertaken by Distributor in relation to the management of the Catalogue and/or the Platform and Developer expressly waive the possibility to raise any claim and/or bring any action against Distributor in this connection.
    7. DUTY TO ASSIST DISTRIBUTOR IN THE DISTRIBUTION OF THE CONTENTS Developer will allow Distributor to perform all activities that Distributor may consider appropriate for the distribution of the Contents and will provide Distributor with all support that Distributor may reasonably request for the performance of such activities.
    8. REVENUE ARRANGEMENTS Within the scope of this Agreement, Distributor shall have the right to negotiate and execute any arrangements to obtain revenues from advertising or any other form of monetization that Distributor considers appropriate in relation to the Contents. In this respect, Developer expressly acknowledge and agree that Distributor (and/or any third party entity authorized by Distributor) are entitled to maintain commercial relationship with Partners, advertising companies, advertising agencies, payments providers and any other companies, stipulate contracts and agreements with them regarding banners, commercial spaces and other type of monetization to be associated to the Contents and the Platform.
  4. CERTAIN UNDERTAKINGS AND ACKNOWLEDGMENTS OF THE PARTIES
    1. CERTAIN UNDERTAKINGS OF THE DEVELOPER In addition and without prejudice to the other obligations provided under this Agreement, during the Term Developer shall:
      1. (a) be solely responsible for all programming, design and game development in respect of the Content;
      2. (b) not use any copyrighted or registered trademarks of any kind of names or visual materials in the Content that Developer are not entitled to use;
      3. (c) implement the Integration Kit in accordance with Clause 3.1 above as instructed by us;
      4. (d) ensure that all Content updates and features of the Content are made available for the version integrated on the Platform and that the Content distributed on the Platform is always identical to the latest version of the Content published on other platforms, websites, apps, etc.; (e) provide the Content at least in English;
      5. (e) enable the Partners to access the Contents and distribute them through their Distribution Channels;
      6. (f) be responsible for providing User support in relation to the Content, including community management;
      7. (g) not include any link to a web domain or Content(s) outside the Platform in the Content integrated on the Platform without our prior written consent.
    2. MAINTENANCE SUPPORT AND POSSIBLE CHANGES OR ADAPTATIONS Should Distributor notifies in writing to Developer during the Term of the Agreement the existence of any programming errors, bugs, malfunctioning, deficiencies and/or operational failures concerning the Contents, Developer shall verify and attempt to correct such errors, bugs, malfunctioning, deficiencies and/or operational failures at Developer's expense within 30 (thirty) Business Days of the date of notification. The notification shall be sent either via email or via communications through the Platform. If Distributor is not satisfied with the correction, Distributor may be entitled to (i) suspend the distribution of the Contents in respect of which the above programming errors, bugs, malfunctioning, deficiencies and/or operational failures occurred, this being without prejudice to any other rights or remedies that may be exercised by Distributor in accordance with this Agreement and applicable provisions of law. Distributor shall also be entitled to ask Developer to make any reasonable changes or adaptations to the Contents, in which case the above provisions shall apply mutatis mutandis.
    3. TECHNICAL QUESTIONS If Distributor submits to Developer any technical questions on the use of the Contents, Developer shall provide a satisfactory and complete answer to any such questions without any charge to Distributor within the maximum term of 5 (five) Business Days from each request.
    4. IP RIGHTS The Parties acknowledge and agree that all IP Rights which already existed at the time of entering into this Agreement remain the property of the Party to which they belonged at that time. The Parties shall only acquire rights from the other Party as are explicitly granted in this Agreement. In this respect, Developer expressly acknowledge and agree that all IP Rights relating to any code, software or material developed by Distributor for the distribution of the Contents (including any code or portions of a code integrated in the Content, or the software developed in respect of the HTML5 version of the Contents) shall be the exclusive property of Distributor.
    5. ADDITIONAL UNDERTAKINGS Developer will not allow any malware, adware, spyware or such like programs to be inserted into the Source Code that may cause harm to Users, computers or other devices, violate privacy laws or cause Developer and/or Distributor to violate the laws applying in the countries where the Contents are distributed and/where Developer and/or Distributor operate.
    6. OBLIGATIONS RELATING TO THE USE OF THE ACCOUNT AND THE PLATFORM Developer shall be exclusive responsible for the use of Developer's Account and the Platform, as well as for the safekeeping and confidentiality of the Platform Credentials. Developer expressly acknowledge and agree that Distributor shall have no responsibility or liability in respect of any non-authorized or fraudulent use of the Platform Credentials, as well as in general in relation to the security standards of the Platform.
    7. HOSTING Distributor shall be entitled to host the Content in full on our servers or on any servers provided by third parties at our own discretion. Developer expressly acknowledges and agrees that Distributor gives no guarantee or assurance with respect to the security of any such servers, and that the operators of any such servers may acquire IP Rights on the Content as a consequence of the use of the servers based on the terms and conditions applicable thereto
    8. PLATFORM Developer acknowledge that the Platform and any advertising, information, data, or (game) content thereon are AS IS. Except as expressly provided in this Agreement, Distributor disclaims any and all representations and warranties with respect to the Platform and all advertising, information, data and (game) content thereon including without limitation, any implied warranties and any warranty of continuous, uninterrupted, bug-free, secure, virus-free access to the Platform and/or any of its advertising, information, data and (game) content.
  5. REVENUE SHARE
    1. AMOUNT OF REVENUE SHARE As a consideration for the License granted under this Agreement and all other activities regulated hereunder, Developer shall be entitled to the payment of a Revenue Share amounting to 40% (forty percent) of the Net Revenues on a monthly basis (or such other different percentage or consideration as may be separately agreed in writing between the Parties). The Revenue Share has included all expenses, the parties will have to declare taxes and fees according to the laws of their country (if any).

      Developers bank details and other identifiers, the accuracy of which is the responsibility of Developer, that the Distributor shall use at the time of paying Amount of Revenue Share are as below:

      Beneficiary name  
      Bank name  
      Bank address  
      Bank account number  
      IBAN  
      SWIFT code / BIC  
    2. DATA, METRICS AND REPORTING Developer will be entitled to access through Developer's own Account to the data and metrics concerning the distribution of the Contents. Developer expressly acknowledge and agree that such data and metrics are merely indicative, may be subject to adjustments and modifications from time to time and are not conclusive or binding with respect to the determination of the Revenue Share. The Revenue Share will be calculated on the basis of the final data and information available to us. The determination of the Revenue Share made by Distributor in the Report on the basis of such final data and information will be binding between the Parties. Clause 5.8 below shall remain unaffected.
    3. INVOICING Developer shall be entitled to invoice to Distributor the amount of the Revenue Share indicated in the Report only following the delivery of such Report. Developer will send the invoice to Distributor within 6 (six) months of the date of receipt of the Report. In case no invoice will be issued within this term, Developer will lose the right to receive the relevant Revenue Share.
    4. PAYMENT OF THE INVOICE Subject to the other provisions of this Clause 5, Distributor will pay to Developer the amount indicated in the invoice (provided that this was correctly calculated in accordance with the foregoing and based on the Report) within 30 (thirty) Business Days of the date of receipt of such invoice by Distributor.
    5. CARRY FORWARD 5.5If the total amount due to Developer is less than EUR 100 (one hundred), Distributor shall carry the balance due forward to the next payment period until the payment period when a minimum amount of EUR 100 (one hundred) (including any amounts brought forward) becomes payable.
    6. CONDITION OF FULL PAYMENT No amount will be paid by Distributor to Developer and no Revenue Share will become due before Distributor will have received full payment from advertising and any other revenue source.
    7. MINIMUM THRESHOLD MINIMUM THRESHOLD Without prejudice to the above provisions, Distributor shall be entitled not to pay to Developer any Revenue Share on a daily basis in case the number of daily interactions between the Users and the Contents (e.g. number of times when a game is played by Users) is lower than two (2).
    8. ADJUSTMENTS Distributor shall be entitled at least on an annual basis to communicate to Developer any adjustments to the Revenue Shares already paid by Distributor on the basis of the actual data and metrics concerning the distribution of the Contents, in which case Developer shall pay to Distributor (or Distributor shall pay to Developer) any positive (or negative) difference between the amount of Revenue Shares actually paid by Distributor and the amount of Revenue Shares owed to Developer on the basis of the actual data and metrics referred to above.
  6. REPRESENTATIONS AND WARRANTIES, LIABILITY AND INDEMNIFICATION
    1. DEVELOPER'S REPRESENTATIONS AND WARRANTIES Developer hereby represent and warrant to Distributor the following:
      1. (a) Developer has the right, power, authority and capacity to enter into this Agreement and to fully perform Developer's obligations hereunder;
      2. (b) the person executing this Agreement is fully entrusted with the power to validly represent the Developer for the purposes thereof;
      3. (c) the execution of this Agreement by the person indicated above creates legal, valid and binding obligations of the Developer;
      4. (d) The execution of this Agreement by Developer does not violate any separate agreements, rights or obligations existing between Developer and any other persons and/or entities;
      5. (e) Developer complies and will comply with all applicable laws (including, without limitation, data protection laws) in conducting Developer's business and performing Developer's obligations under this Agreement;
      6. (f) Developer has and will maintain full authority to license the Contents in accordance with this Agreement;
      7. (g) Developer is the owner of, or are duly licensed to dispose of, all IP Rights that are necessary or appropriate in order to enter into this Agreement and to grant to Distributor and the Partners the rights provided hereunder (including, without limitation, the rights arising from the License);
      8. (h) neither the Contents, nor the use, marketing or distribution of the same by Distributor, infringe any IP Rights or other rights of any person or entity, or are in breach of any applicable law, regulation, rule or relevant industry codes;
      9. (i) the Contents (1) are and will up-to-date, true, correct and accurate, (2) do not and will not contain any material that is libelous or defamatory or that discloses private or personal matters concerning any person, obscene, indecent or pornographic material or any known computer virus or other contaminating or destructive feature, or any material that is otherwise unlawful, (3) do not and will not contain any violent, sexual or abusive material so as to be reasonably likely to cause offense to any material group of people, (4) to the best of Developer's knowledge, do not or will not contain any other material or information that may cause reputational, economic or legal damages to Distributor;
      10. (j) at the time of the delivery to Distributor and to the best of Developer's knowledge, the Contents are free from any material defects, bugs, technical errors, deficiencies or inaccuracies in programming;
      11. (k) Developer have disclosed (or will disclose at the time when the Contents will be uploaded on the Platform) in writing to Distributor the existence of any third party code, including without limitation open source code, that is included in or is provided in connection with the Contents and that the Contents comply with all license agreements applicable to such third party code;
      12. (l) to the best of Developer's knowledge, the Contents do not contain any computer code, programming instruction, or set of instructions (including, without limitation, self-replicating and self-propagating programming instructions commonly called as viruses or worms), which are known to harm Users and/or to damage, interfere or otherwise adversely affect computer programs, data files or hardware, without the consent or intent of the computer use;
      13. (m) to the best of Developer's knowledge, the marketing materials relating to the Contents that are delivered to, or used by, Distributor are true in all material respects;
      14. (n) the availability of, and support for, the Content will be at all times of high quality, and will meet the specifications set forth in this Agreement;
      15. (o) as of date when the Content is uploaded on the Platform, to the best of Developer's knowledge there is no current or impending claim or proceedings anywhere in the world in respect of the Content.
    2. VIOLATIONS OF DEVELOPER'S CONTENT Additionally, Distributor supports Google's initiative to enable a free and open web. Thus, Distributor will have Developer's Account immediately shut down, and all data there-in deleted should Developer breach any of the below violations:
      1. (a) Illegal content violation - Distributor does not allow that Developer's Content is illegal, promotes illegal activity or infringes on the legal rights of others.
      2. (b) Intellectual property violation - Distributor does not allow that Developer's Content infringes copyright; sells or promotes the sale of counterfeit products; counterfeit goods contain a trademark or logo that is identical to or substantially indistinguishable from the trademark of another; they mimic the brand features of the product in an attempt to pass themselves off as a genuine product of the brand owner.
      3. (c) Endangered or threatened species violation - Distributor does not allow that Developer's Content promotes the sale of products obtained from endangered or threatened species.
      4. (d) Dangerous or derogatory content violation - Distributor does not allow that Developer's Content incites hatred against, promotes discrimination of or disparages an individual or group on the basis of their race or ethnic origin, religion, disability, age, nationality, veteran status, sexual orientation, gender, gender identity or other characteristic that is associated with systemic discrimination or marginalisation. Service does not allow content that harasses, intimidates or bullies an individual or group of individuals. Distributor does not allow that Developer's Content threatens or advocates physical or mental harm to oneself or others. Distributor does not allow that Developer's Content relates to a current, major health crisis and contradicts authoritative, scientific consensus. Service does not allow content that exploits others through extortion.
      5. (e) Enabling dishonest behaviour violation - Distributor does not allow that Developer's Content promotes any form of hacking or cracking and/or provides users with instructions, equipment or software that tampers with or provides unauthorised access to devices, software, servers or websites. Distributor does not allow that Developer's Content enables a user, or promotes products and services that enable a user, to track or monitor another person or their activities without their authorisation. This does not include private investigation services; products or services designed for parents to track or monitor their underage children.
      6. (f) Misrepresentative content violation - Distributor does not allow that Developer's Content misrepresents, misstates or conceals information about Developer, Developer's content or the primary purpose of Developer's web destination. Service does not allow content that entices users to engage with content under false or unclear pretences; engages in 'phishing' for users information; promotes content, products or services using false, dishonest or deceptive claims; makes claims that are demonstrably false and could significantly undermine participation or trust in an electoral or democratic process; falsely implies having an affiliation with, or endorsement by, another individual, organisation, product or service; deceives users through manipulated media related to politics, social issues or matters of public concern.
      7. (g) Malicious or unwanted software violation - Distributor does not allow that Developer's Content contains malicious software or 'malware' that may harm or gain unauthorised access to a computer, device or network.
      8. (h) Sexually explicit content violation - Distributor does not allow that Developer's Content includes graphic sexual text, image, audio, video or games; contains non- consensual sexual themes, whether simulated or real. Distributor does not allow the distribution of the Content on any channel that: may be interpreted as promoting a sexual act in exchange for compensation.
      9. (i) Child sexual abuse and exploitation violation - Distributor does not allow that Developer's Content sexually exploits or abuses children, or content that promotes the sexual exploitation or abuse of children; endangers children.
    3. OUR REPRESENTATIONS AND WARRANTIES Distributor hereby represent and warrant to Developer the following:
      1. (a) Distributor has the right, power, authority and capacity to enter into this Agreement and to fully perform our obligations hereunder;
      2. (b) the execution of this Agreement by Distributor does not violate any separate agreements, rights or obligations existing between Distributor and any other persons or entities.
    4. INDEMNIFICATION Each Party will indemnify, defend and hold harmless the other Party and its officers, directors, employees from and against any and all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys fees) which result from, arise in connection with or are related in any way to, any breach of the representations and warranties above
    5. THIRD PARTIES OR ACTIONS FOR INFRINGEMENT In case of any claim or action brought (or threatened to be brought) against Distributor in relation to the Contents for infringement of any IP Rights or any other rights of third parties, Developer will undertake any action and perform any activity (including, without limitation, by engaging external attorneys, filing all appropriate requests and counterclaims before competent courts, etc.) that may be appropriate or necessary to defend the rights entrusted to Distributor under this Agreement, and will fully cooperate with Distributor in any action that may be undertaken and any activity that may be performed by it for the same purposes. In addition, Developer will keep Distributor fully indemnified and harmless against any costs, expenses, fees (including attorney fees) and damages that may be incurred by Distributor in connection with, or as a consequence of, such claims or actions, provided that (i) Developer have been promptly notified in writing of any claim or action by Distributor (if such claim or action has been initiated against Distributor), and (ii) Distributor allows Developer to control the defense and/or settlement of any such claim or action and provide Developer with all requested assistance, information and authority. In the event that the Contents become, or in Developer's opinion are likely to become, the subject of any claim or action for infringement in accordance with the above provisions, Developer may, at Developer's own discretion, secure our right to continue using the Contents, replace or modify the Contents so as to remove any possible infringement. In any case Distributor will be entitled to immediately remove the Contents from the Platform and/or stop performing any marketing, promotional or distribution activities in relation to them, this being without prejudice to any other rights or remedies that may be exercised by Distributor in accordance with this Agreement and applicable provisions of law.
    6. OTHER REMEDIES It is understood that the above remedies are without prejudice to any additional remedies available to the Parties in accordance with this Agreement and any applicable laws.
  7. TERM, TERMINATION AND WITHDRAWAL
    1. TERM This Agreement becomes effective on the Effective Date and will continue to be effective for an undefined term, subject to the provisions below and any other applicable provisions of law
    2. WITHDRAWAL AT WILL Either Party will be entitled to withdraw at will) from this Agreement for any cause and at any time by serving a prior written notice to the other Party of at least (i) 90 (ninety) days if the withdrawal right is exercised by the Developer, and (ii) 5 (five) days if the withdrawal right is exercised by Distributor.
    3. WITHDRAWAL FOR GOOD CAUSE Without prejudice to the right of withdrawal provided under Clause 7.2, Distributor will be entitled to withdraw from this Agreement without any prior notice and by way of a written communication to be served to Developer in case there is a good cause justifying such withdrawal. For the purpose of this provision, a good cause exists if Distributor believes that the contractual relationship with Developer cannot be continued until the expiry of the Agreement due to any events or behaviors that may be prejudicial to our reputation, legal, economic or business interests. In particular, and without limitation to the generality of the foregoing, Distributor shall be entitled to withdraw for good cause from this Agreement in case (i) Developer are or become insolvent or likely unable to pay Developer's liabilities in a regular manner, (ii) insolvency or similar proceedings are opened against Developer and have not been denied as unfounded (or have been denied for lack of assets), (iii) any measures for provisional suspension of payments are taken against Developer, (iv) Developer start liquidation proceedings or cease to perform Developer's business, (v) Developer lose command over Developer's assets or part thereof due to seizure, by being placed under trusteeship or in any other way, and such command is not returned within four (4) weeks after the loss thereof, (vi) criminal, administrative or disciplinary proceedings are opened against Developer or any of Developer's directors or employees in connection with the business carried out by Developer.
    4. TERMINATION Without prejudice to any other rights or remedies available under this Agreement and applicable provisions of law, Distributor shall be entitled to terminate this Agreement with immediate effect and without any prior notice (i) in case any of the representations and warranties included in Clause 6.1 are or become untrue or incorrect, either in full or in part, (ii) if Developer are in breach, in full or in part, of any of the obligations set out under Clauses 3.2 (Contents uploaded on the Platform), 3.3 (Delivery of the source code and related updates), 4.1 (Certain undertakings of the Developer), 4.3 (Maintenance support and possible changes or adaptation), 4.5 (Additional Undertakings), 6.4 (Third parties or actions for infringement) 8.1 (Confidentiality undertakings), 8.5 (Assignment) and/or 8.12 (Entire Agreement only with respect to the breach of the exclusivity right). In addition, either Party may terminate this Agreement in case of a material breach by the other Party of any of the provisions hereunder, if such breach is not cured within 30 (thirty) days following a written notice sent to the breaching Party specifying the breach.
    5. CONSEQUENCES OF EXTINCTION Upon expiry, withdrawal, termination or extinction for whatsoever cause of this Agreement, Distributor will immediately interrupt the promotion and distribution of the Contents on any new Distribution Channels. As to the existing Distribution Channels, Distributor will remove within 90 (ninety) Business Days all Developer's Contents from the Platform and all promotional activities Distributor might have in place. Any obligation which, according to its nature, the provisions of this Agreement or the applicable provisions of law, shall survive any expiry, withdrawal, termination or extinction for whatsoever cause of this Agreement, shall continue to apply notwithstanding such expiry, withdrawal, termination or extinction.
  8. MISCELLANEOUS PROVISIONS
    1. CONFIDENTIALITY UNDERTAKINGS Each Party shall take all reasonable precautions to protect the confidentiality of the other Party's Confidential Information, which precautions will be at least equivalent to those taken by each Party to protect its own Confidential Information. Except as required by law or as necessary to perform the obligations undertaken hereunder, none of the Parties will knowingly disclose the Confidential Information of the other Party or use such Confidential Information for its own benefit or for the benefit of any third party. The obligations set forth in this Clause 8.1 shall last for the entire Term of this Agreement and for a period of three (3) years thereafter.
    2. NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES The Parties enter into this Agreement as independent contractors. Neither Party will be deemed to be an employee, agent or legal representative of the other Party for any purpose. This Agreement does not create any relationship of agency, partnership or joint venture between the Parties. Neither Party will have any right or authority to assume, create, or enlarge any obligation or commitment on behalf of the other Party and will not represent itself as having the authority to bind the other Party in any manner.
    3. WAIVER A Party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof. Any waiver of a breach or a default of any provision of this Agreement by the non-defaulting Party shall not be construed as a waiver of any succeeding breach of the same or any other provision.
    4. SEVERABILITY In the event one or more of the provisions of this Agreement are found to be invalid, illegal or unenforceable by a court with jurisdiction or by panel of arbitrators, the remaining provisions shall continue in full force and effect. In case this is not possible, the Parties shall negotiate in good faith to replace the invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provision(s).
    5. ASSIGNMENT Developer shall not be entitled to assign, sublicense, transfer, encumber or otherwise dispose of this Agreement or any of the rights arising therefrom (including, without limitation, the right to the payment of the Revenue Share) without our prior written approval. Any attempted assignment, sublicense, transfer, encumbrance or other disposal or this Agreement or the rights arising therefrom (including, without limitation, the right to the payment of the Revenue Share) by the Developer in violation of this provision will constitute a material default and breach of this Agreement. Except as otherwise provided, this Agreement will be binding upon and inure to the benefit of the Parties successors and lawful assignees. Distributor shall be entitled to assign, sublicense, transfer, encumber or otherwise dispose of this Agreement or any of the rights arising therefrom to any third party, and Developer hereby express Developer's consent to any such assignment, sublicense, transfer, encumbrance or other disposal.
    6. SUSPENSION OF DISTRIBUTION AND OTHER ACTIVITIES Distributor shall be entitled to suspend the distribution of the Contents and performance of any other activities regulated hereunder in case of any breach by Developer of any provision of this Agreement, until such breach is entirely cured and remedied (and without prejudice to any other remedies available in accordance with this Agreement and/or applicable provisions of law).
    7. FORCE MAJEURE AND FORTUITOUS CASE No Party shall be deemed to be in breach of the obligations undertaken hereunder for any cessation, interruption or delay in the performance of such obligations due to causes beyond its reasonable control, including in the event of force majeure (forza maggiore) and fortuitous case pursuant to Italian law. It is understood, for the avoidance of doubt, that such provision shall apply, without limitation, in the event of any earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of the business, or any change in or the adoption of any law, regulation, judgment or decree affecting the activities regulated hereunder.
    8. UNILATERAL AMENDMENTS Distributor shall be entitled to periodically update or unilaterally amend at our own discretion and at any time this Agreement, including as regards its economic terms and amount of the Revenue Share. Distributor will notify in Developer via email of any such update or amendment, in which case Developer will be entitled to withdraw from this Agreement within 10 (ten) Business Days of the date of receipt of the above communication (and the terms in force prior to the above update or amendment shall continue to apply to Developer until the withdrawal notice is served to Distributor and becomes effective). For the avoidance of doubt, it is understood that any failure by Developer to serve the above notice shall be construed as an acceptance of the update or amendment referred to above.
    9. ADDENDA, SIDE LETTERS, DEEDS OF AMENDMENT AND OTHER ANCILLARY AGREEMENTS Without prejudice to Clause 8.8 above, the Parties can agree on any additional or different terms regulating their relationship, or amend the terms set forth in this Agreement, by entering into any addendum, side letter, deed of amendment or other ancillary agreement, provided that any such addendum, side letter, deed of amendment or ancillary agreement is executed in writing by both Parties.
    10. DELEGATES AND SUB-CONTRACTORS Distributor shall be entitled to delegate or sub-contract any of our obligations under this Agreement to any third party provided that Distributor shall continue to be responsible and liable for the acts of the third party concerned relating to this Agreement.
    11. NOTICES Any notice required or permitted to be given between the Parties under this Agreement will be in writing and be given: (i) if to Distributor, to the address indicated in the preamble of this Agreement or at the email address indicated on the Platform; (ii) if to Developer, to the address (including the email address) indicated by Developer at the time of registration on the Platform, as updated from time to time.
    12. ENTIRE AGREEMENT Without prejudice to Clauses 8.8 and 8.9 above, and subject to the provisions below of this Clause 8.12, this Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter hereof, supersede all other negotiations, representations, liabilities and/or agreements, oral or written, heretofore made between the Parties with respect to such subject matter, including any agreement entered into in writing by the Parties prior to (and existing as of) the date hereof. It is however understood that any such existing agreement between the Parties shall continue to regulate the subject matters thereof which are not regulated under this Agreement, including, without limitation, with respect to any code or software developed (or that will be developed) by Distributor for the HTML5 distribution of any videogames or contents owned or distributed by the Developer, the IP Rights on which code or software shall continue to be owned exclusively by Distributor. Furthermore, in case any such existing agreement between the Parties provides for an exclusivity right of Distributor, such exclusivity right shall continue to apply to the Contents distributed in accordance with this Agreement until the expiry of its Term, or such shorter period that is the maximum period permitted under applicable law, and Distributor shall accordingly be deemed to be entitled to market, promote, monetize and distribute any such Contents and exercise any other rights falling within the scope of the License in accordance with this Agreement on an exclusive basis.
    13. DATA PROTECTION All data collected or processed by either Party in relation to the other Party and with respect to the activities regulated under this Agreement will remain in the exclusive control of the Party performing the relative processing, and will not be shared with other Party, unless separately agreed and regulated between the Parties. Developer will keep Distributor indemnified and harmless for any dispute arising from the data collecting or processing the related data. Each Party undertakes to comply with data protection requirements applicable in accordance with the law.
    14. TAXES PAID BY DISTRIBUTOR Distributor shall be exclusively responsible for all taxes (if any) associated with the transactions between (i) Distributor and advertising companies / agencies in connection with In-Content Advertising, (ii) Distributor and the Partners or any third parties in connection with In-Content Purchases and Pay-for-Play Schemes, (iii) Distributor and the Users.
    15. TAXES PAID BY DEVELOPER Developer shall be exclusively responsible for all taxes (if any) associated with the payment of the Revenue Share, other than any income taxes to which Distributor is subject. In particular, all payments that will be made by Distributor to Developer in relation to the Revenue Share will be treated as inclusive of any taxes (if applicable) and will not be adjusted depending on the applicable tax amounts. Should Distributor be under an obligation to withhold any taxes from the payments made to Developer, Distributor will notify Developer of this circumstance and will make the payments net of the withheld amounts.
    16. FORMATION OF THE AGREEMENT When requesting access to the Platform Developer are also requested to express Developer's consent to this Agreement. The expression of Developer's consent to this Agreement constitutes a contractual proposal which will become binding and effective upon acceptance thereof by Distributor. Distributor however reserves the right not to accept such proposal upon our discretion by serving a written notice to Developer. This Agreement shall be deemed to be duly entered into by the Parties only once Developer are notified by Distributor that Developer's request to access the Platform on the basis of this Agreement has been accepted by Distributor.
    17. LIMITATION OF LIABILITY Developer expressly acknowledge and agree that the maximum aggregate liability of Distributor that may arise from this Agreement shall be limited to 2 (two) times the average amount of Revenue Share paid by Distributor to Developer on a monthly basis, calculated on the basis of the simple average of the Revenue Shares paid by Distributor until the date when the liability arises. Such limit shall apply to all liabilities of Distributor of a contractual, pre-contractual or tortious nature and regardless of the number of claims raised under this Agreement.
    18. NEWSLETTER AND COMMUNICATIONS Distributor shall be entitled to send to Developer any newsletters, marketing communications or information related to our services and business initiatives, including, without limitation, as regards any platforms or distribution channels opened or managed by Distributor.
  9. APPLICABLE LAW, DISPUTES AND JURISDICTION
    1. APPLICABLE LAW This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed in accordance with, the Socialist Republic of Vietnam.
    2. DISPUTES All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in Vietnam or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the Vietnam International Arbitration Centre (VIAC). Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in VIAC and shall include a written record of the arbitration hearing. An award of arbitration may be confirmed in a court of competent jurisdiction.

SECTION B: PUBLISHER

  1. DEFINITIONS AND INTERPRETATION
    1. DEFINITIONS In addition to the terms defined above, the following terms shall have the meaning set forth below, unless clearly