Game Developer Contract Template Indy

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Game Developer Contract

This Game Developer Agreement (the "Agreement"), dated [the date both parties will have signed] is

entered into by [Game Developer name], an individual residing in [address], (the "Game Developer"),

and [client name], an individual residing in [address], (the "Client").

Whereas, the Game Developer and the Client desire to establish the terms and conditions under

which the Game Developer will provide services to the Client, the parties agree as follows:

1. Scope of Work. The Game Developer agrees to perform such consulting, advisory and related

services specified on Exhibit A to this Agreement ("Description of Services").

2. Term. This Agreement shall commence from the date this Agreement is signed by both parties

and shall continue until the scope of work defined in the Description of Services is completed (such

period, as it may be extended or sooner terminated in accordance with the provisions of Section 4,

being referred to as the ("Service Period").

3. Payment.

a. Service Cost. In consideration of the Service, the Client will pay the Game Developer of $

per hour (the "Service Cost").

b. Expenses. The Game Developer shall be responsible for all business expenses incurred

by the Game Developer in connection with, or related to, the performance of the services.

c. Invoices. The Client shall pay to the Game Developer amounts shown on each statement

or invoice described in Section 3(a) and 3(b) within () days after receipt thereof.

d. Benefits. The Game Developer shall not be entitled to any benefits, coverages or

privileges, including, without limitation, health insurance, social security, unemployment,

medical or pension payments, made available to Game Developers of the Client.

4. Termination. This Agreement may be terminated prior to the end of the Service Period in the

following manner: (a) by either the Game Developer or the Client upon not less than () days prior

written notice to the other party; (b) by the non-breaching party, upon twenty-four (24) hours prior

written notice to the breaching party if one party has materially breached this Agreement; or (c) at

any time upon the mutual written consent of the parties hereto. In the event of termination, the Game

Developer shall be entitled to payments for services performed that have not been previously paid

and, subject to the limitations in Section 3.2, for expenses paid or incurred prior to the effective date

of termination that have not been previously paid. Such payment shall constitute full settlement of

any and all claims of the Game Developer of every description against the Client. In the event that

the Client’s payment to the Game Developer exceeds the amount of services performed and (subject

to the limitations in Section 3.2) for expenses paid or incurred prior to the effective date of

termination, then the Game Developer will immediately refund the excess amount to the Client. Such

refund shall constitute full settlement of any and all claims of the Client of every description against

the Game Developer.

5. Cooperation.The Game Developer shall use Game Developer's best efforts in the performance of

Game Developer's obligations under this Agreement. The Client shall provide such access to its

information and property as may be reasonably required in order to permit the Game Developer to

perform Game Developer's obligations hereunder. The Game Developer shall cooperate with the

Client’s personnel, shall not interfere with the conduct of the Client’s business and shall observe all

rules, regulations and security requirements of the Client concerning the safety of persons and

property.

6. Proprietary Information and Inventions.

a. Proprietary Information.

1. The Game Developer acknowledges that the Game Developer's relationship with

the Client is one of high trust and confidence and that in the course of Game

Developer's service to the Client, Game Developer will have access to and contact

with Proprietary Information. The Game Developer will not disclose any Proprietary

Information to any person or entity other than Game Developers of the Client or use

the same for any purposes (other than in the performance of the services) without

written approval by an officer of the Client, either during or after the Consultation

Period, unless and until such Proprietary Information has become public knowledge

without fault by the Game Developer.

2. For purposes of this Agreement, Proprietary Information shall mean, by way of

illustration and not limitation, all information, whether or not in writing, whether or not

patentable and whether or not copyrightable, of a private, secret or confidential

nature, owned, possessed or used by the Client, concerning the Client’s business,

business relationships or financial affairs, including, without limitation, any Invention,

formula, vendor information, customer information, apparatus, equipment, trade

secret, process, research, report, technical or research data, clinical data, know-how,

computer program, software, software documentation, hardware design, technology,

product, processes, methods, techniques, formulas, compounds, projects,

developments, marketing or business plan, forecast, unpublished financial statement,

budget, license, price, cost, customer, supplier or personnel information or Game

Developer list that is communicated to, learned of, developed or otherwise acquired

by the Game Developer in the course of Game Developer's service as a Game

Developer to the Client.

3. The Game Developer’s obligations under this Section 6 shall not apply to any

information that (i) is or becomes known to the general public under circumstances

involving no breach by the Game Developer or others of the terms of this Section 6,

(ii) is generally disclosed to third parties by the Client without restriction on such third

parties, or (iii) is approved for release by written authorization of an officer of the

Client.

4. The Game Developer agrees that all files, documents, letters, memoranda,

reports, records, data sketches, drawings, models, laboratory notebooks, program

listings, computer equipment or devices, computer programs or other written,

photographic, or other tangible material containing Proprietary Information, whether

created by the Game Developer or others, which shall come into Game Developer's

custody or possession, shall be and are the exclusive property of the Client to be

used by the Game Developer only in the performance of Game Developer's duties

for the Client and shall not be copied or removed from the Client’s premises except in

the pursuit of the business of the Client. All such materials or copies thereof and all

tangible property of the Client in the custody or possession of the Game Developer

shall be delivered to the Client, upon the earlier of (i) a request by the Client or (ii) the

termination of this Agreement. After such delivery, the Game Developer shall not

retain any such materials or copies thereof or any such tangible property.

5. The Game Developer agrees that Game Developer’s obligation not to disclose or

to use information and materials of the types set forth in paragraphs (2) and (4)

above, and Game Developer's obligation to return materials and tangible property set

forth in paragraph (4) above extends to such types of information, materials and

tangible property of customers of the Client or suppliers to the Client or other third

parties who may have disclosed or entrusted the same to the Client or to the Game

Developer.

6. The Game Developer acknowledges that the Client from time to time may have

agreements with other persons or with the United States Government, or agencies

thereof, that impose obligations or restrictions on the Client regarding inventions

made during the course of work under such agreements or regarding the confidential

nature of such work. The Game Developer agrees to be bound by all such

obligations and restrictions that are known to the Game Developer and to take all

action necessary to discharge the obligations of the Client under such agreements.

b. Inventions.

1. All inventions, ideas, creations, discoveries, computer programs, works of

authorship, data, developments, technology, designs, innovations and improvements

(whether or not patentable and whether or not copyrightable) which are made,

conceived, reduced to practice, created, written, designed or developed by the Game

Developer, solely or jointly with others or under Game Developer's direction and

whether during normal business hours or otherwise, (i) during the Consultation

Period if related to the business of the Client or (ii) after the Consultation Period if

resulting or directly derived from Proprietary Information (as defined below)

(collectively under clauses (i) and (ii), "Inventions"), shall be the sole property of the

Client. The Game Developer hereby assigns to the Client all Inventions and any and

all related patents, copyrights, trademarks, trade names, and other industrial and

intellectual property rights and applications therefore, in the United States and

elsewhere and appoints any officer of the Client as Game Developer's duly

authorized attorney to execute, file, prosecute and protect the same before any

government agency, court or authority. However, this paragraph shall not apply to

Inventions which do not relate to the business or research and development

conducted or planned to be conducted by the Client at the time such Invention is

created, made, conceived or reduced to practice and which are made and conceived

by the Game Developer not during normal working hours, not on the Client’s

premises and not using the Client’s tools, devices, equipment or Proprietary

Information. The Game Developer further acknowledges that each original work of

authorship which is made by the Game Developer (solely or jointly with others) within

the scope of the Agreement and which is protectable by copyright is a "work made

for hire," as that term is defined in the United States Copyright Act.

2. Upon the request of the Client and at the Client’s expense, the Game Developer

shall execute such further assignments, documents and other instruments as may be

necessary or desirable to fully and completely assign all Inventions to the Client and

to assist the Client in applying for, obtaining and enforcing patents or copyrights or

other rights in the United States and in any foreign country with respect to any

Invention. The Game Developer also hereby waives all claims to moral rights in any

Inventions.

3. The Game Developer shall promptly disclose to the Client all Inventions and will

maintain adequate and current written records (in the form of notes, sketches,

drawings and as may be specified by the Client) to document the conception and/or

first actual reduction to practice of any Invention. Such written records shall be

available to and remain the sole property of the Client at all times.

4. Notwithstanding the foregoing in this Section 6(b), the ownership and use of the

Inventions that are assigned to the Client in Section 6(b)(i) (the "Assigned

Inventions") shall be limited as set forth in Exhibit B.

7. Limitation of Liability. Notwithstanding anything to the contrary contained elsewhere herein,

neither party shall be liable to the other for any consequential, special, incidental, indirect or punitive

damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of

anticipated profit, loss of bargain, loss of revenue or loss of product or production, however arising

under this contract or as a result of, relating to or in connection with the service and the parties’

performance of the obligations hereunder, and no such claim shall be made by any party against the

other regardless of whether such claim is based or claimed to be based on negligence (including

sole, joint, active, passive, or concurrent negligence, but excluding gross negligence), fault, breach

of warranty, breach of agreement, breach of contract, statute, strict liability or any other theory of

liability.

8. Indemnification. The Game Developer shall be solely liable for, and shall indemnify, defend and

hold harmless the Company and its successors and assigns from any claims, suits, judgments or

causes of action initiated by any third party against the Company where such actions result from or

arise out of the services performed by the Game Developer or its Game Developers under this

Agreement. The Game Developer shall further be solely liable for, and shall indemnify, defend and

hold harmless the Company and its successors and assigns from and against any claim or liability of

any kind (including penalties, fees or charges) resulting from the Game Developer’s or its Game

Developers’ failure to pay the taxes, penalties, and payments referenced in Section 9 of this

Agreement. The Game Developer shall further indemnify, defend and hold harmless the Company

and its successors and assigns from and against any and all loss or damage resulting from any

misrepresentation, or any non-fulfillment of any representation, responsibility, covenant or agreement

on its part, as well as any and all acts, suits, proceedings, demands, assessments, penalties,

judgments of or against the Company relating to or arising out of the activities of the Game

Developer or its Game Developers and the Game Developer shall pay reasonable attorneys’ fees,

costs and expenses incident thereto.

9. Independent Contractor Status. The parties shall be deemed independent contractors for all

purposes hereunder. Accordingly:

a. The Game Developer will use its own equipment, tools and materials to perform its

obligations hereunder.

b. The Client will not control how the Service is performed on a day-to-day basis and the

Game Developer will determine when, where and how the Service will be provided.

c. The Client will not provide training to the Game Developer.

d. The Game Developer will be solely responsible for all state and federal income taxes in

connection with this Agreement.

e. This Agreement does not constitute an employment, partnership, joint venture or agency

between the parties hereto, nor shall either of the parties hold itself out as such contrary to

the terms hereof by advertising or otherwise nor shall either of the parties become bound or

become liable because of any representation, action or omission of the other.

10. General.

a. Survival. Sections 4 through 11 shall survive the expiration or termination of this

Agreement.

b. Non-Solicitation. During the Service Period and for a period of [six (6) months] thereafter,

the Game Developer shall not, either alone or in association with others, (a) solicit, or permit

any organization directly or indirectly controlled by the Game Developer to solicit, any Game

Developer of the Client to leave the employment of the Client, or (b) solicit or permit any

organization directly or indirectly controlled by the Game Developer to solicit any person who

is engaged by the Client.

c. Use of Subcontractors. The Game Developer may use trusted contractors to complete

components of the Game Developer’s obligations hereunder, provided that the Game

Developer shall remain solely responsible for such contractors’ performance, that the Client

shall have no obligation to such contractors and the use of such contractors shall not cause

any increase in fees, costs or expenses that would otherwise be payable hereunder.

d. Entire Agreement. This Agreement (including the documents referred to herein)

constitutes the entire agreement between the Client and the Game Developer and

supersedes any prior understandings, agreements or representations by the parties, whether

written or oral, with respect to the subject matter hereof.

e. Assignment. Neither party may assign or transfer this Agreement in whole or in part, nor

any of the rights hereunder, without prior written consent of the other party.

f. Notices. All notices required or permitted under this Agreement shall be in writing and

shall be deemed effective upon personal delivery or upon deposit in the United States Post

Office, by registered or certified mail, postage prepaid, addressed to the other party at the

address shown above, or at such other address or addresses as either party shall designate

to the other in accordance with this Section 13.

g. Amendments. No amendment of any provision of this Agreement shall be valid unless

the same shall be in writing and signed by each party.

h. Severability. Any term or provision of this Agreement that is invalid or unenforceable in

any situation in any jurisdiction shall not affect the validity or enforceability of the remaining

terms and provisions hereof or the validity or enforceability of the offending term or provision

in any other situation or in any other jurisdiction. If the final judgment of a court of competent

jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Game

Developer and the Client agree that the court making the determination of invalidity or

unenforceability shall have the power to limit the term or provision, to delete specific words or

phrases, or to replace any invalid or unenforceable term or provision with a term or provision

that is valid and enforceable and that comes closest to expressing the intention of the invalid

or unenforceable term or provision, and this Agreement shall be enforceable as so modified.

i. Force Majeure. Neither party will be liable for any failure or delay in its performance under

this Agreement due to any cause beyond its reasonable control, including acts of war, acts of

God, earthquake, flood, fire, embargo, riot, sabotage, or failure of third party power or

telecommunications networks, provided that the delayed party: (a) gives the other party

prompt notice of such cause and (b) uses its reasonable commercial efforts to promptly

correct such failure or delay in performance.

j. Governing Law. This Agreement shall be governed by and construed in accordance with

the laws of the State of (other than any principle of conflict or choice of laws that would

cause the application of the laws of any other jurisdiction).

k. Arbitration. Any unresolved controversy or claim arising out of or relating to this

Agreement, except as (i) otherwise provided in this Agreement, or (ii) any such controversies

or claims arising out of either party’s intellectual property rights for which a provisional

remedy or equitable relief is sought, shall be submitted to arbitration by one arbitrator

mutually agreed upon by the parties, and if no agreement can be reached within thirty (30)

days after names of potential arbitrators have been proposed by the American Arbitration

Association (the “AAA”), then by one arbitrator having reasonable experience in corporate

finance transactions of the type provided for in this Agreement and who is chosen by the

AAA. The arbitration shall take place in , , in accordance with the AAA rules then in effect,

and judgment upon any award rendered in such arbitration will be binding and may be

entered in any court having jurisdiction thereof. The prevailing party shall be entitled to

reasonable attorney’s fees, costs, and necessary disbursements in addition to any other

relief to which such party may be entitled.

l. Counterpart. This Agreement may be executed in two or more counterparts, each of

which shall be deemed an original but all of which together shall constitute one and the same

instrument. This Agreement may be executed by facsimile, digital or electronic signature.