NINTENDO OF EUROPE GMBH, a German corporation, located at Herriotstrasse 4, 60528 Frankfurt am Main, Germany (hereinafter referred to as "Nintendo") and Licensee, as set forth in the Exhibit B (hereinafter referred to as "Licensee"), agree as follows:
a. Subject to the terms of this Community License Agreement (the “Agreement), Licensee may use the Games and the Properties (each as defined below) in connection with the promotion and execution of the Event, as set forth in the Exhibit B (the “Event”). The tournament player cap, i.e. the maximum number of participants who participate the Event, is set forth in the Exhibit B (“Participants”).
b. Additional terms and conditions related to Licensee’s use of the Games and the Properties in connection with the Event are set forth on Exhibit A attached hereto and incorporated by this reference.
c. For the creation and sharing of the video relating to Licensee’s use of the Games and the Properties during the Event (including streaming), “Nintendo Game Content Guidelines for Online Video & Image Sharing Platforms” will apply.
d. Licensee must be the age of legal majority in Licensee’s country of residence. Licensee must have a registered Nintendo Account with Nintendo Co. Ltd.
e. Licensee is only entitled to use the Games and the Properties (each as defined below) pursuant to the license granted under this Agreement if the Event has at least 32 Participants and not more than 140 Participants.
a. Contract Conclusion
i. Licensee’s Offer
The provision of the licensing process does not constitute a binding offer by Nintendo to conclude a license agreement with the Licensee, but is an invitation to Licensee to submit an offer to Nintendo. Licensee makes a binding offer to obtain a license under this Agreement by entering the information as set forth in the Exhibit B on the submission page of the Super Smash Bros. Ultimate Tournament Portal and clicking the “Submit request”-button (the “Offer”). This Offer does not incur any costs for Licensee.
ii. Nintendo sends a confirmation of receipt of the Offer to the e-mail address Licensee provided as part of the licensing process immediately after receipt of the Offer (“Confirmation of Receipt”). The Confirmation of Receipt does not represent Nintendo’s acceptance of the Offer.
iii. Nintendo’s Acceptance
Nintendo accepts the Offer by sending a confirmation email to the email address registered by Licensee at the time of making the Offer (“Conclusion of the Contract”).
b. Licensee can access, store and print out the current Agreement during the entire licensing process and at any time on Nintendo´s Website under http://nintendo-europe.com/smashtournaments. Licensee can also download and store this Agreement as PDF, and will receive its PDF copy as an attachment to the Conclusion of the Contract.
c. Nintendo does not store this contract text after Conclusion of the Contract.
d. The contractual language is English.
e. Licensee is obliged to enter true and accurate information when making the Offer.
a. The term of this Agreement (the “Term”) begins upon Conclusion of the Contract and ends with the end of the Event.
b. During the term of this Agreement, ordinary termination is excluded for both Nintendo and the Licensee.
c. The right to terminate the Agreement for good cause remains unaffected. Good cause entitling Nintendo to terminate this contract extraordinarily includes, especially:
i. Significant breaches of the Licensee’s obligations set out under Section 5 and 9;
ii. any other breach of the Agreement by Licensee which is not remedied to the satisfaction of Nintendo within 14 days from receipt of a demand by Nintendo in text form or after fruitless warning, except where such period or warning can be dispended with;
iii. Licensee does not implement sufficient security procedures in connection with the Event at the latest five (5) work days before the start of the Event (“Security Protocols”), for example performing Events by using friend codes and/or lobby functions, so only authorized Participants are able to join the Event, checking the age and ID of Participants, checking Participants’ bag content, assigning security staff or providing sufficient toilet facilities and security measures on the venue.
iv. there is reasonable suspicion that Licensee takes any action which is intended, or may reasonably be expected, to harm Nintendo, Nintendo Co., Ltd. and/or any subsidiary and/or any subsidiary undertaking of Nintendo Co., Ltd and/or any cooperation or business entity controlled by Nintendo Co., Ltd (together referred to as “Nintendo Group” and each of them a “Nintendo Group Company”), the business or reputation of a Nintendo Group Company, or which would reasonably be expected to lead to unwanted or unfavorable publicity for Nintendo Group;
v. Licensee becomes the subject of adverse publicity through criminal acts, which in the reasonable judgment of Nintendo are or may be detrimental to the intended purpose of this Agreement or the Event.
a. Nintendo hereby grants to Licensee the non-exclusive, non-transferable, non-sublicensable, royalty-free and limited right and permission in the Territory and during the Term to publicly perform the below listed Nintendo games (collectively, the “Games”) at the Event pursuant to the terms of this Agreement:
i. Super Smash Bros. Ultimate.
b. Nintendo hereby grants to Licensee the non-exclusive, non-transferable, non-sublicensable, royalty-free and limited right and permission in the Territory and during the Term to use the below listed Nintendo properties (collectively, the "Properties") solely in the manner set forth herein and only in connection with the public performance of the Games at the Event:
i. Super Smash Bros. Ultimate game name and logo; and
ii. Artwork assets to be provided by Nintendo and downloadable by Licensee via Super Smash Bros. Ultimate Tournament Portal (the “Assets”).
c. The Properties and Games are licensed to Licensee as-is without any representations or warranties, unless Nintendo fraudulently conceals a legal defect or a defect in the Properties. Licensee shall not modify any part of the Properties and/or the Games. Licensee may perform reverse engineering of the Properties or the Games only pursuant to § 69d paragraph 3 German Copyright Act (Urheberrechtsgesetz).
d. Licensee acknowledges that Nintendo respectively Nintendo Co. Ltd is the owner of the Properties including all goodwill associated therewith and agrees that it will do nothing inconsistent with such ownership, and that all use of the Games and Properties by Licensee shall inure to the benefit of, and be on behalf of, Nintendo respectively Nintendo Co. Ltd. Nintendo, respectively Nintendo Co. Ltd. will retain all right, title and interest in and to the Properties including any goodwill associated therewith, subject to the limited license granted to Licensee hereunder. All such use of the Properties shall be in accordance with Nintendo’s reasonable policies regarding quality control, advertising and trademark usage as established from time to time and communicated to Licensee. Nintendo shall be solely responsible for the application, registration and enforcement of the Properties as it deems appropriate in its sole discretion.
e. Licensee is not required to obtain Nintendo’s prior written approval for the use of the Properties, but shall fully comply with any guidelines and style-guides to be provided by Nintendo for any use of the Assets for any materials prepared by Licensee to be used in connection with the Event (including, but not limited to, marketing materials, signage, online assets, press releases and media alerts). Nintendo may request Licensee to modify such materials accordingly, and Licensee shall fully comply with such request in a timely manner but no later than within 5 workdays after such request. Licensee’s non-compliance or late-compliance with the guidelines or style-guides, or Nintendo’s such request, will be regarded material breach by Licensee of this Agreement.
f. Licensee agrees that it shall not use the Properties in a manner derogatory to Nintendo Group, any Nintendo Group trademark, or the rights granted herein.
g. All Nintendo consoles, games, accessories and merchandise provided or used by Licensee at the Event must be officially licensed Nintendo products. For the avoidance of doubt, Licensee may only use non-modified versions of the consoles and Games in the Event.
h. Licensee may not permit gameplay at the Event of any Nintendo games other than the Games set forth in Section 5(a). Licensee may not use any Nintendo properties other than the Properties set forth in Section 5(b).
i. Licensee agrees to identify the Games and Properties as licensed by Nintendo by putting “Licensed by Nintendo” notice on the printing materials or marketing materials (online or offline).
j. Any tournament at the Event (“Tournament”) for which Licensee is providing a prize that involves the Games shall be governed by official rules that are compliant with applicable laws. Such rules shall cause any Participant in the tournament to release Nintendo from any liability in connection with Participant’s participation in the Tournament, and shall be clear that Nintendo is not a sponsor, co-sponsor or administrator of the Event or the Tournament. Licensee shall be solely responsible for all aspects of the Event and of any Tournament, including the official rules and disclosures required in connection with the Event and any Tournament, and the promotion and execution thereof. Licensee shall bear all costs related to the Event and any Tournament.
k. Upon expiration of this Agreement pursuant to Section 3(a), Licensee shall cease all use of the Properties as soon as practicable, but in any case within thirty (30) days after termination or expiration of the Agreement. Upon termination of this Agreement pursuant to Section 3(c), Licensee shall cease all use of the Properties immediately.
l. Licensee will abide by the additional terms set forth in Exhibit A, if any.
Licensee hereby grants to Nintendo and each Nintendo Group Company the non-exclusive, royalty-free, sub-licensable, perpetual and worldwide right and permission to use Licensee’s name and logo in connection with the Event on Nintendo Group’s owned and/or branded online and social media channels.
Licensee may not make any public-facing communications that reference or incorporate the Properties or Licensee’s relationship with Nintendo without Nintendo’s prior approval.
a. Licensee will provide Nintendo with the materials set forth in Exhibit A (the “Event Materials”) as soon as practicable, but in any event within one (1) week of the end date of the Event.
b. Licensee hereby grants to Nintendo and each Nintendo Group Company the non-exclusive, royalty-free, sub-licensable, perpetual, worldwide right to use, broadcast, modify, reproduce, publish, distribute, and display the Event Materials on Nintendo Group’s owned and/or branded media channels (including, but not limited to, Nintendo.com websites, social media platforms, YouTube channel and Nintendo Direct videos).
a. Licensee represents and warrants that (a) it has the authority to enter into this Agreement and to grant the rights, licenses and permissions granted hereunder; (b) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the Territory, including, without limitation, applicable laws governing any sweepstakes, contests or tournaments held by Licensee in connection with the Event, youth protection laws, consumer protection laws, data protection laws and any laws pertaining to advertising to children; (c) it has obtained, will obtain or cause to be obtained by the appropriate party all necessary licenses, permissions, government approvals and authorizations to conduct all elements of the Event and to grant the licenses under this Agreement, (d) all the information Licensee submits to Nintendo doesn’t contain any false information, and (e) it is not affiliated with any companies or other organizations that, promote, sensationalize, reference or contain any of the following: manufacturer or seller of non-licensed gaming accessories for Nintendo products; hate speech; political statements; anything with strong sexual, explicit or erotic themes; excessive violence; profanity; alcohol, gambling, illegal drugs or tobacco products.
b. Licensee represents and warrants that the Event, the operation and promotion thereof, and any aspect of the foregoing will not: (i) contain any language, images or other content that is libelous, slanderous, defamatory or derogatory to Nintendo, or inappropriate for viewing by young children; (ii) infringe, misappropriate, or otherwise violate any third-party copyright, trademark, trade secret or other intellectual property or other right; or (iii) otherwise violate applicable law.
a. Nintendo is only liable for intent and gross negligence.
b. For (legal) defects of any license licensed under this Agreement Nintendo is only liable if Nintendo fraudulently concealed such (legal) defects.
Licensee agrees to indemnify and hold harmless Nintendo and each Nintendo Group Company, divisions and subsidiaries and their officers, directors, employees and agents (including advertising and promotional agencies), from and against negligently or willfully caused claims, demands, obligations, causes of action and lawsuits, and all damages, liabilities, fines, judgments, costs (including settlement costs), and expenses associated therewith (including the payment of reasonable attorneys’ fees and associated costs) (“Damages”) that arise out of: (a) the actions taken by Licensee or those acting under it in connection with this Agreement or the Event, including the operation and management of the Event, any Tournament or any activity incidental to the foregoing leading to Damages due to a negligent or willful conduct of Licensee; (b) the negligent or willful failure of Licensee or those acting under it to comply with the terms and conditions of this Agreement; (c) Licensee’s (or those acting under it) negligent or willful use of the Games and/or Properties in a manner not expressly authorized by Nintendo under this Agreement; or (d) any negligent or willful breach by Licensee of any of its representations and warranties made herein. Licensee is only obliged to indemnify and hold harmless Nintendo for Damages to that extent that Licensee or any of its representatives are responsible for the Damages.
This Agreement and the license granted hereunder is personal to Licensee and may not be sold, assigned, delegated, sublicensed or otherwise transferred or encumbered.
Each of Nintendo and Licensee agrees that all non-public or proprietary information concerning this Agreement or the Event shall be considered “Confidential Information” and shall not be disclosed to the public or to any third party. Each of Nintendo and Licensee implement adequate, the circumstances corresponding technical and organizational measures to ensure the secrecy of the Confidential Information (e.g. labelling documents as confidential). Each of Nintendo and Licensee agrees that all such Confidential Information, including the terms of this Agreement, shall be treated with confidence, and each of Nintendo and Licensee shall limit disclosure of the Confidential Information to its employees, contractors and/or agents on a need-to-know basis and only to the extent necessary to execute the Event or perform its obligations under this Agreement. However, Nintendo is allowed to share Confidential Information within the Nintendo Group. Each of Nintendo and Licensee are prohibited from imitating or using received Confidential Information independently and economically outside the purpose of the contract by investigating or dismantling it (prohibition of reverse engineering); mandatory national provisions, in particular those under copyright law, remain unaffected.
Licensee, at Licensee’s expense, shall be solely responsible for all aspects of the Event, including, without limitation, the execution, administration, and operation of the Event, including, without limitation any Tournament; drafting and posting the official rules in connection with any tournaments held at the Event; selecting winners; issuing prizes; and obtaining all necessary third-party permissions and approvals, including, without limitation, filing any and all necessary registrations and bonds, to conduct all elements of the Event and to grant the licenses under this Agreement. Licensee will be solely responsible for (a) deducting and withholding from prizes issued in connection with the Event any and all applicable taxes imposed as a result of the Event in compliance with any applicable laws, (b) preparing and furnishing to each Participant of any tournament at the Event any return, report or other written statement relating to taxes as required by any applicable law, and (c) obtaining all documents and information from each Participant necessary for Licensee to comply with any tax reporting and withholding obligations associated with the Event. Nintendo shall in no way be indicated or described in any advertising, marketing, or other materials as a sponsor or co-sponsor of the Event or the Tournament(s).
This Agreement shall be governed by, subject to and construed under the laws of Germany; however, if Licensee is a consumer having his habitual residence within the European Economic Area, mandatory provisions of the law of the country in which the Licensee has his habitual residence remain unaffected by the choice of law and still apply. If any term of the Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the remaining provisions of this Agreement shall remain in full force and effect. Any modification to this Agreement must be in text form. Notwithstanding termination or expiration of this Agreement, for any reason whatsoever, the conditions and provisions of this Agreement that are intended to survive, will continue and survive, including, but not limited to, Sections 11 and 13 (limited to five years from the termination of this Agreement for the confidentiality obligation pursuant to Section 13).
1. The “Event Materials” include:
a. Photos taken by Licensee at the Event
b. Tournament seeds
c. Information related with Tournament: final registration number, entry fee and prize pool, if any
2. Licensee will only permit the following Game stages to be used at the Event and in any materials prepared in connection therewith:
a. Super Smash Bros. Ultimate
ii. Final Destination
iii. Kongo Jungle
iv. Peach’s Castle
v. Yoshi’s Story
vi. Fountain of Dreams
vii. Dream Land
viii. Pokémon Stadium
ix. Lylat Cruise
x. Yoshi’s Island
xii. Castle Siege
xiii. Delfino Plaza
xiv. Frigate Orpheon
xvi. Town & City
xvii. Pokémon Stadium 2
xviii. Kalos Pokémon League
xix. Unova Pokémon League
xx. Super Happy Tree
xxi. Kongo Falls
xxv. Arena Ferox
xxvi. Reset Bomb Forest
xxvii. Moray Towers
xxviii. Great Plateau Tower
xxix. Suzaku Castle
xxx. Umbra Clock Tower
xxxi. New Donk City Hall
b. In connection with the Event, Licensee shall not play, distribute, broadcast, and/or stream (i) any character’s victory fanfare music or (ii) music track that can be selected by a player in the Game other than stage music initially set for the stages listed above.
3. Licensee will not use registered trademarks other than those granted by Nintendo Group Companies under this Agreement for the Event or tournament names. Licensee will not display registered trademarks other than those granted by Nintendo Group Companies under this Agreement on any footage (videos, pictures, audio recordings etc.) from the Event.
4. Licensee shall implement and maintain industry standard (but in no event less than commercially reasonable) Security Protocols. Nintendo reserves the right, but shall not have the obligation, to provide feedback to Licensee regarding Licensee’s Security Protocols (“Feedback”). Licensee shall use best efforts to implement all Feedback.
5. Licensee shall not obtain any sponsorship from third party brands, except for the following type of sponsorships
a. Sponsorship of physical equipment which is necessary for Licensee to organize the Events, such as Headset, Display, Desk, Chair
6. The Event must not take place at commercial venues that are profit-oriented and offer gameplay and game bar as core services.
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