Developers’ general terms and conditions

I.- GENERAL INFORMATION

1.- Identificative Data

The domain www.wimi5.com property of WiMi5 DEVELOPMENT, S.L. (hereinafter, WiMi5), a Spanish company, with corporate address at Parque científico y Tecnológico de Vizcaya, calle Geldo, Edificio 700, Derio, Vizcaya, with Tax Identification number B-95737870 y and duly incorporated in the Commercial Registry of Vizcaya, Tomo 5420, Folio 73, Hoja BI-63324. The Developers can contact WiM5i at developers@wimi5.com.

2.- Object and scope of the General Terms and Conditions

The present Terms and Conditions (hereinafter, the T&C) as well as the applicable particular terms and conditions and the rest of legal texts made available to the Developers are the contractual framework between WiMi5 and the Developers and contain the rights and obligations of WiMi5 and of the Developers and regulates the access, navigation and use of the web site www.wimi5.com (hereinafter, the Web) and the use and exploitation of the services contained in the Web.

The registry in the Web by the Developers implies the knowledge, acceptance and adhesion to the warnings and legal information, conditions and terms available for the Developers in the Web at any time. The present T&C can be completed by particular conditions regulating certain functionalities or aspects of the services offered through the Web (hereinafter, the Agreement).

In this sense, the Developer is the person that by means of a complete process of registry, accede, take part and use the Service provided through the Web as a platform or support to develop, program, settle, implement and design videogames that, finally will be made available to the potential payers (hereinafter, Players) by means of their publication.

II. THE SERVICE

3.- Description of the Service

WiMi5 allows the Developers in the framework of its existing technical and corporate possibilities, the use of an engine (hereinafter, the Engine) to develop a videogame in HTML5 format that enables any third party the development of videogames on the referred Engine and its publication in the Web platform (all together, the Service).

WiMi5, therefore, provides and makes available to the Developer through the Web a series of information, tools and/or facilities from which the Developer programs, designs and develops different pieces with the aim of creating a videogame with entertaining purposes (hereinafter, the Videogame/s) that, afterwards are integrated in the Web for its use and benefit of the Players.

In this sense, the Developers could use the tools and/or facilities available with the sole purpose of developing, implementing and/or strengthening the use and the functionalities of the Engine, provided by WiMi5 for the production of Videogames with the aim referred before.

4.- Publication of the Videogame

The Developer, with the use of the Services available in the Web for the production and publication of the Videogame, pursues in a way, a profit, not only in terms of money, but also in terms of reputation or in terms of volume of Players, as well as any other parameter. In this sense, the Developer declares that with respect to the legal relationship with WiMi5 as Developer, it does not hold the status of consumer.

In the event that the Developer, once the creation of the Videogame is finished, decides to make it available to the Players of the Web, he will have to proceed with its publication in the Web. The publication of the Videogame in the Web implies that it will be available of the Players of WiMi5 and that these, could take benefit of the Videogame.

The Developer can choose between publishing the Videogame:

  • without any economic consideration; or
  • with an economic consideration of those who choose to play the Videogame, this is, with the possibility of the Players to pay certain amounts of money in order to access to higher levels or acquire extra contents, or tools in order to continue paying; or any other award that the Developer considers (hereinafter all together, the Virtual Goods).

Unless stated otherwise by the Developer, it will be understood that the price of the Virtual Goods indicated in the videogame directions includes the current Value Added Tax for these kind of products. Therefore, it is the sole responsibility of the Developer, the clear explanation of the rules of the Videogame as well as the prices and any other relevant information, at least in Spanish, for the enjoyment of it (hereinafter, Videogame’s Directions)

III.- ACCES TO THE USE OF THE SERVICE

5.- Developer’s account

The Service can only be used trough the Web. In order to access to the complete functionalities of the Service in order to take full benefit of the tools available for the Developer, this must complete a registry process through which he could create a Developer’s personal account (hereinafter, Developers’ Account) by means of the directions provided in the Web to such effects.

Likewise, during the registry process, the Developer must provide information and/or data which accuracy, authenticity, veracity and currency warrantees at any time and he must provide a valid email address and the password of the same.

Consequently, after the verification of the registry that will be made by the sending of an email to the email address provided by the Developer, the registry will be completed and the Developer’s Account will be opened by the sending of the corresponding password to the Developer, becoming a qualified developer. Once registered, the Developer can access to its Account and start the use of the complete Service.

In this sense, the password provided can be modified by the Developer at any time, being the sole and exclusive responsibility of the Developer the correct conservation and custody of the same. The Developer will be fully responsible of the security and/or use of its Account and its access password, assuming sole and exclusive liability for all actions and/or activities made by the Developer or by any third party using its Account.

6.- Acceptance of the T&C

As a previous and compulsory step to validly register as Developer and therefore, for being able to use the Service offered by WiMi5, the Developer must accept by means of the corresponding checkbox, the present T&C as well as the particular conditions and the rest of the legal text made available to the Developer.

Any amendment of the present T&C as well as any other conditions applicable to the Developer, will be notified to the Developer, requiring if stated by Law its acceptance.

IV.- USE OF THE SERVICE

7.- Obligations of the Developers related to the Service

The Developer obliges himself, at any time, to make reasonable use of the Web and its contents pursuant to the applicable law, and the possibilities of the same. In particular, the Developer assumes the following obligations of the use of the Services provided through the Web:

  • Observe the legislation related to the protection of the Intellectual and Industrial Property, and in particular, with the obligations contained in section 12 below;
  • Provide and communicate all the data and information required by WiMi5, as well as its amendment and/or actualization, with the aim of keeping the accuracy of the same;
  • Keep and maintain the password as well as all the data related to the security conditions of the Developer’s Account and its confidentiality in order to prevent the use of the same for third parties;
  • Immediately inform WiMi5 of any non-authorized use, loss or irregularity, not only possible by also potential, that could be known by the Developer;
  • Strictly observe the T&C and the rest of the regulation available in the Web, for the correct and full use, develop and benefit of the Service;
  • Provide the Player with the Videogame’s Directions published on the Web and duly inform the Players about the amendment of the Videogame once published;
  • Keep in full use and enjoyment, the maintenance, assistance and access to the Videogame, allowing WiMi5 the access, as well as its review and/or inspection;
  • In the event that the Developer decides to remove the Videogame once published in the Web, must notify, not only WiMi5 but also the Players (each time these enter to the Videogame) with at least thirty (30) days in advance. In case that the removal of the Videogame without the previous notice, the Developer will not receive the corresponding liquidation of the royalties generated during the notice period and will be responsible of the damages that this breach could cause WiMi5, the Players and/or any third party;

Any breach by the Developer of any of the aforementioned obligations, will enable WiMi5 to: (i) waive its responsibility of the fulfilment of its obligations in relation with the Service, as well as, (ii) to resolve the present Agreement and claim compensation for the damages incurred as a consequence of the breach.

8.- Prohibitions of use in relation to the Service

The Developer refrains himself to make a use of the Service contrary to the applicable Law, forbidden or harmful or with effects contrary to the applicable Law, forbidden or harmful, therefore, all the consequences derived from the undertaking of such actions will be of sole and exclusive responsibility of the Developer. In particular, the Developer assumes the obligation of refraining himself to undertake any of the following actions:

  • Publish in the web contents that: (i) breach WiMi5’s or third parties’ Intellectual Property rights; (ii) were false, fraudulent, illegal or misleading; (iii) were libellous or abusive; (iv) were obscene, pornographic or offensive; (v) promote the intolerance, racism, the hate or any harmful act contrary to the moral or the public order against any individual or group; (vi) infringe or boost any behaviour that could infringe any current applicable regulation or could generate any civil liability; and (vii) in general, were unlawful, or it distribution, diffusion or exhibition were prohibited by any regulation of any territory.
  • Access, interfere, manipulate or use any area of the Service or of the informatics systems of WiMi5 or of the Web that do not have public call. As well as an any conduct that infringe, elude or manipulate the terms, rules of the Videogame, the mechanics of the Videogame or the aim of the Service;
  • Try to prove, research, analyse or explore the vulnerability of the Service or of any system or network related to the same, disarm or decode any barrier, security measure or the authentication or source code related with the Service or with the mentioned systems or networks;
  • Try to decode, decompile, disassemble or invert any engineering of the software used for the rendering of the Service;
  • Damage or generate threat of damage of the system of another Developers, of the host, or of the network; manipulate or try to manipulate the access of any Developer of any way, including in the undertaking of such purposes by means of the sending of a virus, the overload, overflow or the massive sending of spam to the Service;
  • Imitate or counterfeit the affiliation of Developer or of any other by means of the use of the identity of other individual and/or entity;
  • Reproduce, publicly communicate or undertake any activity with commercial purpose over the Videogames of his property, published in the Web breaching any agreement between WiMi5 and the Developer.
  • Undertake amendments or alterations over the Videogames that could interfere in the Engine provided by WiMi5 that could produce damages to the Engine or deficiencies in the service offered to the Players. In any case, in order to such amendment could apply, the Developer, must notify WiMi5 according to these T&C; and
  • Undertake amendments of the Videogame against the rights acquired by the Players, through the satisfaction of the corresponding amounts for the enjoyment of the Videogame.

Any breach by the Developer of any of the aforementioned obligations, will enable WiMi5 to: (i) waive its responsibility of the fulfilment of its obligations in relation with the Service, as well as, (ii) to resolve the present Agreement and claim compensation for the damages incurred as a consequence of the breach.

9.- WiMi5’s obligations related to the rendering of the Service

WiMi5 assumes the following obligations in relation to the rendering of the Service:

  • Render the Service according to the T&C and to any other particular conditions applicable to the Developer, this is, provide and make available to the Developer the Engine in optimum conditions for the development of videogames in HTML5 format that enables the development of videogames on this Engine and put the developed videogames to the disposal of the Players of the Web;
  • Protect the data and information provided by the Developers as well as the access password, not only during the process of registry and its future amendments but also during the validity of the Developer’s Account in the Web;
  • Establish and update with the diligence of a prudence businessman the control and security systems of the Engine, so that in any possible way and according to the limitations of liability contained in the present T&C, is warrantee the rendering of the Service, without inconvenience and irregularities;
  • Distribute, reproduce, publicly communicate or undertake any activity with commercial purpose over the Videogames, published in the Web, though the channels that he may consider appropriate; and
  • Satisfy to the Developer, the amounts due in concept of royalties pursuant to section 13 below.

10. Faculties of WiMi5 in relation with the rendering of the Service

WiMi5 have the right to monitor and control the access and/or the use of the Service of the Developer, with the objective of warranting the effective rendering of the Service, the maximum control and full security of the Engine, the fulfilment of any applicable Law or Judicial Requirements or any Public Entity and for avoiding any infringement of any Legal Dispositions of the any third party Rights.

In this sense, WiMi5 have the right of indefinitely remove the Developers Account, as well as the Videogame, from the Web and even deleting it, provided that under its opinion considers that is unlawful, under the terms of section 8 before, revoking the Developer the license for the using of the Engine, granted pursuant to section 12 below.

WiMi5 have the right of reveal, discretionally and without limits, any data, information or content of the Account and of the Videogame of the Developer, provided that it answer to the need to observe any Norm, Law, Regulation or Judicial or Administrative Summon. In the event that WiMi5 considers, also discretionally, that an imminent threat for the health and safety of the Developer, any other Developer, Player, player or third party or for the functionality of the system might occur, WiMi5 have the right of interrupt, delete, deactivate the Account or the Videogame or to cease rendering the concrete Service that could generate the aforementioned pernicious effects.

For security reasons, WiMi5 can temporary suspend the rendering of the Service, without previous notice to the Developer. If the suspension last more than ten (10) days, WiMi will make its best efforts to implement another alternative system to render a similar service.

WiMi5 have the right to establish, at any time, new practices or policies in relation to the Service. The new policies will be applicable for the Developers according to the Law.

11. Access to third party’s programs

For the better use of the Web and the optimizing of its resources, WiMi5 can recommend to access to websites or third parties supports or, even, to download and set a third party software, over which WiMi5 does not have any control. The present T&C are not applicable to the mentioned websites or software. Therefore, in this sense, any activity undertaken by the Developer related to this third parties’ products must be according to the conditions, legal warnings and privacy policy of the same, which WiMi5 is not responsible for. The Developer must review such terms and conditions and contact directly with the third parties responsible of the same, if required.

V.- INTELECTUAL PROPERTY AND ECONOMIC CONDITIONS OF THE SERVICE

12.- Intellectual and Industrial Property

All title, right, interest, profit or any other right over the Engine is currently and will be of permanent exclusive property of WiMi5 and its licensees and/or licensor. The Engine is protected by copyright and any other right derived from the intellectual and industrial property, not only under the Spanish regulation but also under the regulation of several countries in an international scope.

Though the acceptance of the present T&C, WiMi5, as the owner of the intellectual property rights of the Engine, grants a non-exclusive, limited to the exclusive use of the Developer and not replicable, temporal, revocable and not sub-licensable, to the Developer, for the use of the Engine in the production of the Videogame. Unless expressly permitted cases through the present Agreement, the Developer will not use the Engine but for any other purpose stated therein.

WiMi5 declares that it does not have and will not have the title of any intellectual property right over the Videogames published in the Web and created by means of the Engine that WiMi5 provides to the Developers.

The Developer cannot host, store, divulge, publish, divulge, make available or share though the Web and using WiMi5’s Services any material or content: (i) of which the Developer does not have right, consent or legitimate to copy, reproduce, transmit, divulge, explore, distribute and/or exhibit to third parties and/or (ii) that infringe or violate intellectual or industrial property or third parties personal rights (including, author’s rights, registered trademarks, patents, industrial and secrets designs or any other intellectual or industrial property rights recognised by the regulations of any country where it can have effects, moral rights, rights to honour, privacy self-image).

Therefore, in the moment that the Developer publishes a Videogame in the Web, WiMi5 assumes that in observance of the present section, as well as in observance of the rest of the T&C and of the applicable Law, neither the Videogame nor its content violates Intellectual or Industrial property rights. The Developer will also obtain, if required by Law, the public call license in order to divulge a peace subjected to intellectual property protection, and legally used in a Videogame.

Likewise, the publication of a Videogame, entails the granting by the Developer to WiMi5 of a non-exclusive, revocable (with thirty (30) days’ notice), worldwide, and sub-licensable, exploitation of the Intellectual property right license. The license granted by the Developer by virtue of the publication of the Videogame on the Web, enables WiMi5 to (i) boost, (ii) make available, (iii) publicly communicate, (iv) offers and (v) exploit (charging the amounts established in the Videogame’s Directions) the Videogame as well as its content and images pursuant to the purpose of the Web.

WiMi5 will pay the Developer, in concept of royalties for the exploitation of the intellectual property of the Videogame, the 70% of the net amount paid by the Players for the enjoyment of the Videogame, deducted costs, taxes and retentions according to the following section.

If pursuant to section 4, the Developer in the Videogame’s Directions have foreseen the enjoyment of the same freely for the Player, WiMi5 will not charge any amount to the Player, on the contrary, if he has foreseen the payment of any amount for the enjoyment of the Videogame, this amount will be shared by the Developer and WiMi5 as stated in the present T&C.

13.- Economic Conditions

The registry and creation of the Developer’s Account as well as the access and use of the tools and/or platform provided though the Web for the creation and publication of the Videogame, are free of any cost, but for the cost of the electronic means the Developer uses to connect WiMi5’s Web.

The amount that the Developer will receive in concept of royalties for the exploitation of the Videogame, will be the 70% of the net amount that the Videogame generates, this is, deducted the payment costs and any other cost that can appear as well as any taxes and retentions that WiMi5 will have to hold in relation with the selling of the Virtual Goods as well as in relation to the payment to the Developer.

WiMi5 will monthly pay to the Developer, the corresponding amounts pursuant to this section.

WiMi5 will have the right to modify, at any time, the economic conditions or establish the price policies or transaction tariffs for the use of the Service by means of their publication in the Web. Accordingly, the publication of Videogames in the Web by the Developer, means the recognitions, submission, acceptance and adhesion to the same. Therefore, it is recommended periodically review the T&C and in particular he economic conditions of the Service.

VI.- LIABILITY OF THE PARTIES

14.- Waive of liability

  • In any case, WiMi5 will not be liable of the irregularities or inconveniences generated by the lack of accuracy, authenticity, truthfulness and/or update of the data or information provided by the Developer to WiMi5 during the registry or at any other time.
  • WiMi5 will in no case and under any concept assume any liability, directly or indirectly, derived from the misuse or fraudulent or unlawful use that the Developer make of the Service, the Web the contents, information or data gathered.
  • WiMi5 will make its best efforts to watch the legality of the contents and the rest of information provided and distributed though the Web. Notwithstanding, the Developer assumes, recognise and accepts that WiMi5 cannot control all those contents and information, therefore WiMi5 have no liability to the Developer or to any third party regarding whatsoever damages that could arise in relation to the same.
  • The Developer recognises and expressly accepts that, he is the sole responsible of the content of the Videogame and of the Videogame itself, if its functionalities, Directions, use, maintenance and all those consequences that could arise from the same in front of WiMi5 and/or in front of any third party. WiMi5, in any case and under no concept will assume any liability, directly or indirectly, derived from the Videogame; being the Developer liable of the damages that the same could cause to WiMi5 or to any third party.
  • WiMi5, in no case will be responsible to the Developer or to any third party as a consequence of the circumstances described as follows:
  • Any incapacity or unavailability to use the Web or any suspension, interruption, default functioning or fall of system –either temporarily or definite- when those derive from the maintenance of the Service or alien to the circumstances to the scope of control and activity of WiMi5 and that has been caused, directly or indirectly by: (i) force majeure or that cannot have been foreseen by WiM5i or that being foreseen cannot have be control or minimised its effects, or (ii) the action of a third party that has no personal or commercial or any other kind of relationship with WiMi5, including, the manipulation, the inversion, the disability, the spamming.
  • Whatsoever damage of any kind that could be generated and/or derived of the interruption, termination or dysfunction of the Web, and the rest of the causes established in the precedent paragraph. The losses and/or damages that, in such case, can be causes with the purpose of accessing or use of the Developer’s Account by third parties.

In this sense, the Developer assumes, recognises and admits that, in whatsoever event and circumstance described in the precedent paragraphs, WiMi5 is not and will not be liable to them or to any third party, so that, consequently, for the present, the Developer expressly waives to claim WiMi5 any damage derived from the aforementioned circumstances and assert a claim in front of the Courts or any other Organism related to any event described in this section.

15.- Limitation of liability

The Developers and WiMi5, will be liable for the breach of its respective obligations contained in the T&C as well as in any other document conforming the Agreement.

Developers and WiMi5, assume expressly that WiMi5 is exempt of any liability over the indirect damages, derived of the use of the Service. In this sense, the Developer recognises, assumes and accepts that the Service is at their disposal in the current conditions and with the functionalities, characteristics and purposes for which was conceived.

However the aforementioned, in no event, and under no circumstance, the derived liability for direct damages caused by WiMi5 and/or by the use of the Service to the Developer or to any third party for any claim related to the use of the Web, of the Videogames in aggregated terms will not be higher than the smallest of the following amounts:

  • Two hundred (€200) euros.
  • The amount paid by WiMi5 to the Developer in the last six (6) months counting from the date of the event that origins the claim.

The express limitation of liability contained in the present section is assume by the Developer and by WiMi5 as essential condition of the subscription of this Agreement.

16. Indemnity of WiMi5

The Developer must defend, compensate and maintain WiMi5, its managers, employees, affiliates, agents or any other related persons harmless with respect to whatsoever claims, liabilities, damages, losses, costs or any other circumstances, reasonable or not, arisen from the use of the Service by the Developer, the Videogame, its content or its Directions or as consequence of any infringement of what stated in the present Agreement.

VI.- MISCELLANEUS

17. Full agreement, knowledge, interpretation and acceptance of its terms.

The present Agreement is the full, complete and exclusive contract between WiMi5 and the Developer with respect to the Service and supersedes and revokes any previous agreement subscribed between the parties in relation to the Service.

The Developer assumes, accepts and expressly recognises that have full knowledge and understanding of all the terms of the Agreement and that, knowing and understanding them, he accepts them without exclusion and limitation of liability.

The Developer assumes that, unless the amendment of the present T&C of the Service and while these were in force, these are applicable to all and any of the Services that the Developer undertakes, so with the subscription of them in this moment, the Developer obliges himself, not being able to plead un-knowledge of its terms or of the functioning of the Service as a result of a future use of the same.

The Developer will be also subjected to the rest of the terms, conditions and additional policies referred in the present T&C, and that are published in the Web or provided to the Developer.

The present Agreement, have a full value, notwithstanding, the invalidity of any of its clauses, will not mean the nullity of the rest of its terms that will still be applicable between the parties.

Unless otherwise stated along the present Agreement, the lists, details, specific events or elements are mentioned as an example, but these are nor exhaustive. The specific circumstances declared are including in a general scope and of course, with no aim of completeness.

18. Amendments

WiMi5 reserves at its exclusive election, and the Developer assumes and accepts it so, the right to amend the present T&C, as well as the rest of the additional terms at any time, only through its publication in the Web, being the Developer, responsible of periodically reviewing them.

Notwithstanding, related to the notification of the referred amendments and the need of the acceptance of the same by the Developer, WiMi5 will observe what stated in the Law.

19. Notices

With respect to the communication between WiMi5 and the Developer, these agree that unless otherwise expressly stated by the parties in the present T&C, the parties can use any channel that allows the accreditation of the sending and receipt of the notification, considering the Burofax a suitable channel.

The Notices must be sent to (i) in case of WiMi5, to the postal or email address, at any time detailed at the beginning of these T&C, and (ii) in case of the Developer, to the address provided during the registry process, being responsible to communicate WiMi5 any change that could interfere in the remission or reception of the communication between the Parties.

20. Law and jurisdiction

The present Agreement will be submitted to the Spanish legislation

The parties waive its right to any jurisdiction that may be applicable to them, and agree the submission of any dispute regarding the subscription, validity, interpretation or termination of the present Agreement to the Courts of the city of Bilbao.