Bethesda Creations ONLINE DURABLES PROVIDER AGREEMENT

(TERMS OF USE)

1. PARTIES

1.1 This Bethesda Creations Online Durables Provider Agreement (the “Agreement”) is a binding legal agreement between the entity you represent, or, if you do not designate such an entity in connection with your acceptance of this Agreement, you individually, (in either case, “You” or “Provider”) and ZeniMax Media Inc., a wholly-owned subsidiary of Microsoft Corporation, (“We” or “ZeniMax”). The Agreement is effective only after We provide You with written confirmation of our acceptance of this Agreement after You have properly submitted all required information and have clicked the “I Accept” button (“Effective Date”).  If you as an individual designated an entity as Provider, then you as an individual represent that you have the legal authority to bind Provider to the terms and conditions of this Agreement (“Terms”).

1.2 This Agreement shall be interpreted and controlled in accordance with the terms and conditions set forth in the Microsoft Services Agreement, available at https://www.microsoft.com/en-us/servicesagreement/, and agreed to at the time Provider established its Bethesda Creations Content Development Account or any update thereof accepted by or applicable to Provider. Should a conflict exist between the Microsoft Services Agreement and this Agreement, the terms of this Agreement shall control.

1.3 By clicking the “I Accept” button, submitting Content or otherwise using or accessing Bethesda Creations, Provider hereby agrees to the Terms.  We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon posting; however, material changes to these Terms will be effective upon the earlier of (i) the first use of Bethesda Creations by You after such change, or (ii) thirty (30) days from posting of such change. Use of Bethesda Creations by You following any such change constitutes your agreement to be bound by the modified Terms.  If You do not agree to the Terms, you may not submit Content or otherwise use Bethesda Creations Content Development Account.

1.4 You and ZeniMax shall each be a “Party” and collectively shall be the “Parties” to this Agreement.

2. RECITALS

2.1 ZeniMax (directly or through its subsidiaries) owns and publishes or has under development various games developed by Bethesda Game Studios (“BGS”) that among other things enable players to create content for the applicable Game world. ZeniMax is developing a BGS online service for Bethesda Games (“Bethesda Creations”) where users of certain BGS Games can purchase content and other offerings for use on the respective Bethesda Creations.

2.2 Provider is a publisher of content suitable for use in connection with one or more BGS Games.  Provider desires to have ZeniMax sell and distribute its content through Bethesda Creations (as defined below) for use in connection with BGS Games.

3. DEFINITIONS

3.1 “Authorized Platforms” means Android, IOS, Amazon, Windows platforms, Xbox, PlayStation, Steam and any other platforms for BGS Games that ZeniMax identifies in writing in its sole discretion.

3.2 “Approved Advertising Material” means advertising, artwork and other promotional materials related to the Content of Provider or the Bethesda Creations Content Development Account of Provider in Bethesda Creations that are approved in writing by ZeniMax to be used solely by Provider in ZeniMax-approved advertising, marketing, and promotion of its Content and its Bethesda Creations Content Development Account in Bethesda Creations.

3.3 “Approved Offerings” means Offerings created by Provider that are approved in writing by ZeniMax.

3.4 “Authorized Users” means end users that have a valid and current end user license from ZeniMax to use and play a Game.

3.5 “Bethesda Creations Content Development Account” means an account that is required to be established by a Provider with Microsoft Corporation in order to develop and submit Content for approval for inclusion in Bethesda Creations. The Bethesda Creations Content Development Account may only be used for Content and may not be used to provide services or to host Games.

3.6 “Bethesda Creations Content Portal” means the Portal through which Providers access and receive information from ZeniMax relating to Bethesda Creations and any Offerings.

3.7 “Bethesda Creations” means any marketplace, ZeniMax store, app store or portal that ZeniMax, its affiliates, or its or their designees host and makes generally available for customers to procure Offerings for Bethesda Creations through use of the Bethesda.net wallet or otherwise.

3.8 “Bethesda Creations Brand Guidelines” means content guidelines for the development of Offerings that are published on the Bethesda Creations website. Access to the website will be available to the Provider upon signing of the Agreement. ZeniMax reserves the right to update or modify such content guidelines at any time without prior notice, and such changes will be effective immediately upon being published or posted on the website. However, material changes to such content guidelines, as identified by ZeniMax, will be effective upon the earlier of (i) Provider’s first use of the Bethesda Creations service with actual notice of such change, or (ii) 30 days from posting of such change. Provider’s use of any Bethesda Creations service following any such change constitutes the Provider’s agreement to be bound by the modified terms.

3.9 “Content” means digital content for a participating BGS Game that is created with the Creation Kit, such as add-ons, skins, maps, mash-ups and cosmetics, and any other durable content that may be approved by ZeniMax in its sole discretion.

3.10 “Creation Kit” means the tool used by Providers to create and submit Content for approval by ZeniMax for inclusion in Bethesda Creations.

3.11 “Game(s)” means any BGS game expressly included in Bethesda Creations that is compatible with an Authorized Platform and Bethesda Creations.

3.12 “Microsoft Trademark Guidelines” means the trademark guidelines currently published at https://www.microsoft.com/en-us/legal/intellectualproperty/trademarks/usage/general.aspx as updated by Microsoft from time to time.

3.13 “Offerings” means Content of Provider that is submitted for approval to ZeniMax to be hosted on Bethesda Creations.

3.14 “Royalty Fee” means the royalty amount to be paid to Provider for each completed sale by ZeniMax of an Approved Offering in Bethesda Creations.

3.15 “Term” means the period commencing with the Effective Date and ending upon the earlier of three (3) years from the Effective Date or the termination of this Agreement. The Agreement will automatically renew for one (1) year periods unless a Party provides written notice of termination to the other Party at least sixty (60) days prior to the then-current expiration date.

3.16 “ZeniMax Guidelines” means Bethesda Creations Brand Guidelines and Microsoft Trademark Guidelines.

4. OFFERINGS OF PROVIDER

4.1 Provider Account.  Provider is required to have a valid Bethesda Creations Content Development Account in order to develop and submit Content to ZeniMax for approval.  ZeniMax may verify information Provider submits when setting up a Bethesda Creations Content Development Account. ZeniMax may use the contact information Provider provides in Bethesda Creations Content Portal to send Provider information and updates regarding the Durable Provider program. Provider agrees that ZeniMax may publicly display in Bethesda Creations the email address that Provider provides in the Bethesda Creations Content Portal for customer support purposes. Provider’s Bethesda Creations Content Development Account is only for use by Provider and the individuals Provider authorizes as its delegates in the Bethesda Creations Content Portal. Provider is responsible for all activity that takes place in connection with its Bethesda Creations Content Development Account. Provider may not share its username and password or otherwise authorize any third party (other than Provider’s authorized delegate(s)) to access or use the Bethesda Creations Content Portal on its behalf. If Provider fails to keep its Bethesda Creations Content Development Account in good standing (for example, by giving ZeniMax incorrect or outdated information, or by engaging in dishonest or fraudulent activity), ZeniMax may revoke Provider’s Bethesda Creations Content Development Account, terminate this Agreement, remove Provider’s Approved Offerings from Bethesda Creations, and pursue any other remedies available to ZeniMax.

4.2 Support.  In ZeniMax’s sole discretion, it may provide tools, technical help, advice, or other support relating to the development and/or ingestion of Content by Provider for use in Bethesda Creations.  All tools, technical help, advice, or other support if provided by ZeniMax, are provided on a non-exclusive, non-commercial and “AS IS” basis solely for the purpose of supporting Provider in the development of its Offerings for use and sale as Approved Offerings in the Bethesda Creations service.  Provider agrees to provide the necessary support required by the users of any Approved Offerings within the Bethesda Creations service.

4.3 Non-Exclusivity.  The obligations in this Agreement shall not be construed as limiting the rights which the Parties may otherwise have outside the scope of this Agreement, or as contractually restricting the right of either Party to offer similar products or services.  Specifically, Provider understands and acknowledges that ZeniMax and other content providers may offer similar or competing Content as part of Bethesda Creations and otherwise. 

5. APPROVAL PROCESS

5.1 Advertising Material. Prior to displaying any advertising, artwork or other promotional material that includes ZeniMax or its affiliates’ trademarks, logos or other intellectual property in connection with any advertising, marketing, promotion and/or sponsorships of Bethesda Creations, Content of Provider or the Bethesda Creations Content Development Account of Provider in Bethesda Creations (“Advertising Material”), Provider shall submit (using ZeniMax-specified guidelines and/or tools) any Advertising Material to ZeniMax and seek approval of such Advertising Material as Approved Advertising Material at least thirty (30) business days prior to distribution, displaying, and/or otherwise using such Advertising Material. Provider shall not distribute, display, and/or otherwise use such Advertising Material without receiving ZeniMax’s prior written approval.

5.2 Submission of Offerings. With respect to any Offering that Provider would like ZeniMax to sell on Bethesda Creations, Provider shall submit (using ZeniMax-specified guidelines and/or tools) a sample of such Offering to ZeniMax through the Creation Kit tool and seek ZeniMax’s approval of such Offering as Approved Offerings.  

5.3 Royalty Fee and Sales Price.  The Royalty Fee for such Offering will be set at Provider’s sole discretion; provided, however, such Royalty Fee must be set at one of the price tiers set forth in Exhibit A, which may be updated by ZeniMax in ZeniMax’s sole discretion upon notice to Provider.  The sales price charged to Authorized Users corresponding to such Royalty Fee will be set by ZeniMax in its sole discretion. 

5.4 Content Guidelines and Takedown.  Provider may submit only Advertising Material and Offerings that meet the ZeniMax Guidelines.  Provider will use commercially reasonable efforts to ensure that any Advertising Material or Offerings will not (i) comprise or contain content that is illegal, offensive, defamatory, discriminatory, pornographic or sexually explicit, contains nudity, or is otherwise inappropriate, (ii) infringe or misuse any intellectual property rights, or (iii) disparage ZeniMax or its affiliates, or in any way damage or weaken any brands or property rights of ZeniMax or its affiliates, including any BGS Game (collectively, all of the foregoing (i), (ii) and (iii) and other Advertising Materials or Offerings not meeting the ZeniMax Guidelines are hereinafter termed “Improper Content”). If Provider knows or is informed of any Improper Content, Provider shall promptly notify ZeniMax and take immediate remedial action to limit and reduce any negative brand impact, including the updating or removing of such Improper Content. To the extent ZeniMax identifies any Improper Content, or is notified by a third party that Provider’s Approved Offerings contain any Improper Content, ZeniMax may, in its sole discretion, either remove such Improper Content or notify Provider of such Improper Content and Provider shall immediately remove it.

5.5 ZeniMax Discretion.  ZeniMax may withhold its approval of any Advertising Material or Offerings in its sole discretion. If ZeniMax fails to respond to Provider’s request for approval of Advertising Material or Offerings within thirty (30) business days, Provider’s request for approval shall be deemed denied by ZeniMax. 

6. PROVIDER OBLIGATIONS

6.1 Provider Operation.  Provider will provide Offerings and perform activities in a manner that conforms to the terms of this Agreement and that, at all times, provides a beneficial player experience for Authorized Users.  Provider will make available reasonable support and liaise with ZeniMax on technology, marketing, and other strategic matters, to ensure that the Approved Offerings of Provider support an authentic, player-focused experience.   

6.2 Provider Subsidiaries. Provider may invite authorized employees, contractors, or agents (“Provider Subsidiaries”) to use Provider’s Creation Kit for purposes of managing Offerings and publishing Approved Offerings on Bethesda Creations. ZeniMax may, in its sole discretion, delay, suspend or revoke access for Provider Subsidiaries, including if such Provider Subsidiaries fail to agree to certain required terms (e.g., NDA) or if Provider Subsidiaries misuse their access. Provider will be fully responsible for all activities by Provider Subsidiaries. Provider hereby accepts and understands that sharing its account information with Provider Subsidiaries will allow such Provider Subsidiaries to access Provider’s personal and confidential information (to the extent accessible via the account) and make permanent changes; ZeniMax will not be responsible for Provider Subsidiaries’ actions. If there is any misuse or breach of contract by Provider Subsidiaries, Provider and Provider Subsidiaries will be jointly and severally liable for such misuse and breaches.

6.3 Bethesda Creations Compatibility and Testing.  Provider agrees, and will ensure that, all Bethesda Creations users can access and use the Approved Offerings of Provider for the applicable Game, including access and use of such Approved Offerings with all other Bethesda Creations services for such Game and versions of the Game. In addition, ZeniMax may in its sole discretion make Approved Offerings available for use with other games and services.

6.4 Content and other Offerings.  Provider will support all Approved Offerings for the duration of the Term.  Content of Provider that is not purchased through Bethesda Creations pursuant to this Agreement will not be usable on the Bethesda Creations service. 

6.5 Removal of Approved Offerings.  Provider may, in writing, request that ZeniMax remove one or more of Provider’s Approved Offerings from Bethesda Creations.  Subject to maintaining continued availability pursuant to Section 6.6, and within thirty (30) days of receiving such request, ZeniMax will use commercially reasonable efforts to remove such Approved Offerings from Bethesda Creations.  In addition, without limiting Section 5.4, ZeniMax, in its sole discretion, may at any time remove one or more Approved Offerings of Provider from Bethesda Creations upon providing written notice to Provider.

6.6 License.  To help facilitate the marketing of Bethesda Creations service and sales on Bethesda Creations, and to ensure continued availability of Approved Offerings to Authorized Users who have purchased such Approved Offerings, ZeniMax shall maintain and track all entitlements to Approved Offerings sold in Bethesda Creations and Provider hereby grants ZeniMax a perpetual, worldwide, non-exclusive, royalty-free license during and after the Term to promote, market, host, use, modify, reproduce, publicly display, sell, distribute, support, update and publicly perform the Approved Offerings and Provider’s name, trademarks and logos as part of Bethesda Creations, the Bethesda Creations service, a Bethesda Creations Content Development Account and/or any other game or service of ZeniMax or its affiliates, and any marketing or advertising for the foregoing.

6.7 License Restrictions. Provider may not distribute anything owned by a third party on Bethesda Creations unless ZeniMax specifically agrees to it, in writing, in advance. Accordingly, Provider is prohibited from: (1) providing copies of Provider’s Offering(s) to any third-party; (2) distributing Provider’s Offering(s) on third party websites; (3) distributing Provider’s Offerings for free; and (4) permitting third parties to access Bethesda Creations in a way that is unfair, unreasonable, causes damages to ZeniMax, or causes damages to other Providers.

6.8 Bundles.  ZeniMax may, in its sole discretion, market, sell and distribute two or more Approved Offerings as bundled items within Bethesda Creations. ZeniMax may also, in its sole discretion, market, sell and distribute Approved Offerings as bundled items in combination with other third-party offerings (all such bundled items above, “Combination Bundles”) within Bethesda Creations. ZeniMax may equally discount the Royalty Fees associated with each of the Offerings in Combination Bundles in its sole discretion.

6.9 Public Disrepute. Notwithstanding anything to the contrary in this Agreement, if at any time in ZeniMax’s good faith opinion, Provider (i) becomes the subject of public disrepute or scandal that negatively affects ZeniMax’s (or its affiliates’) brands or image or (ii) takes intentional action that harms the professional, business, or personal reputation of ZeniMax, it affiliates or its or their employees, in addition to any other rights and remedies that ZeniMax may have under this Agreement or at law or in equity, ZeniMax may terminate the Agreement immediately upon notice to Provider.

6.10. Xbox Achievement Friendly Program. Participation in the Achievement Friendly program is optional. Any Verified Creator who makes their Bethesda Creation(s) part of the Achievement Friendly program must comply with all terms and conditions related to the program. The toggle is intended to facilitate a balanced and fair achievement system. If a Creation inappropriately uses this feature — by overvaluing or unlocking achievements in an exploitive manner or in a way that compromises the integrity of the player experience — Bethesda, in its sole discretion, may remove such Bethesda Creation from the Achievement Friendly program. No refunds or appeals will be entertained. Participation in the Achievement Friendly program is optional.

7. ZENIMAX OBLIGATIONS

7.1 Approvals.  ZeniMax will respond to a reasonable number of requests from Provider for approval of Advertising Material and Offerings in a commercially reasonable manner.

7.2 Bethesda Creations.  ZeniMax and its affiliates are the exclusive distributors, sellers and providers of all Offerings as part of the Bethesda Creations service.  ZeniMax will design, setup and maintain Bethesda Creations for selling Approved Offerings in a manner that ZeniMax determines, in its sole discretion, provides a beneficial user experience for Authorized Users.  Provider agrees to execute any required Bethesda Creations agreement and to perform within the terms and conditions that are required for accessing or using Bethesda Creations.

7.3 Hosting. ZeniMax or an affiliate will host Bethesda Creations as part of the Bethesda Creations service throughout the Term, the look and feel of which will be determined by ZeniMax in its sole discretion.

8. LEGAL COMPLIANCE

8.1 Provider will not submit any Offerings for approval which contain or include any material which is unlawful, libelous, obscene, indecent, threatening, intimidating, or harassing, or which Provider does not have the right to grant ZeniMax the licenses and rights as provided under the terms of this Agreement. Additionally, Provider represents and warrants that it is the creator and owner of, or has the necessary license, rights, consents and permissions to use and to authorize ZeniMax to exploit and commercialize Approved Offerings as contemplated under the terms of this Agreement.  Provider agrees it shall not feature, or permit any third-party to feature, any of the following in its Offerings, Advertising Material or its other advertising or promotions relating to the Bethesda Creations service:

8.1.0 Prescription or “over-the-counter” drugs.

8.1.1 Pornography or pornographic products.  

8.1.2 Tobacco, tobacco products, or paraphernalia.

8.1.3 Alcohol products or other intoxicants the sale or use of which is regulated by law.

8.1.4 Sellers or marketplaces of virtual or other items known to be counterfeit or illegal sellers thereof, or who are otherwise in breach of the Game’s terms of use.

8.1.5 Businesses engaged in gambling, wagering, bookmaking, or sports betting, including fantasy sports or esports.

8.1.6 Specific sponsors or entities identified in writing by ZeniMax (email sufficient).

9. ROYALTIES   

9.1 Royalties. For each completed sale of an Approved Offering where ZeniMax receives and retains full payment from the Authorized User, ZeniMax will calculate the Net Royalty Fees.  “Net Royalty Fees” means the aggregate of the number of such completed sales made to Authorized Users for each Approved Offering in Bethesda Creations times the Royalty Fee that is associated with such Approved Offering, but excluding any refunds, defaults, returns or redownloads of Approved Offerings. If ZeniMax distributes an Approved Offering as a “buy once and play anywhere” offer, then Provider will only be paid the Net Royalty Fees on the initial platform or the initial BGS Game franchise product the Approved Offering is purchased on by an individual and no Net Royalty Fees will be owed for use or download of the Approved Offering on any other platform or in any other BGS Game franchise product for which the purchaser does not pay an additional fee to ZeniMax at the time of download of the additional platform or BGS Game franchise product version.

9.2 Game Currency. Provider understands and acknowledges that ZeniMax may use in-game currency or any other virtual currency name or type to transact all or a portion of the sales of Approved Offerings in Bethesda Creations.  ZeniMax in its sole discretion shall establish the virtual currency amount that will be associated with the Approved Offerings within Bethesda Creations.  Provider shall not provide, offer, advertise, accept, or imply any affiliation with such virtual currency as part of Bethesda Creations, Bethesda Creations service or otherwise.  Provider must clearly distinguish any “currency” or “awards” it provides from such virtual currency and Provider shall not use any confusingly similar names to “Creation Credits” or other virtual currency name that ZeniMax may use in Bethesda Creations, for its “currency” or “awards.” 

9.3 Sales Data.  ZeniMax may provide Provider with access (via the Bethesda Creations Content Portal or otherwise) to ZeniMax data relating to sales of Approved Offerings (“Sales Data”). Sales Data is provided for Provider’s personal use, and Provider agrees to keep such Sales Data confidential.

9.4 GAAP. All amounts calculated under this Agreement must be calculated in accordance with U.S. generally-accepted accounting principles (“GAAP”).

10. PAYMENT

10.1 During the Term, within thirty (30) days from the end of each calendar month that ZeniMax sells any Approved Offerings of Provider, ZeniMax (or an affiliate) will pay Provider the applicable Net Royalty Fees for such calendar month. If the payment for any calendar month is less than twenty-five dollars (USD $25.00) (or its equivalent in local currency) and ZeniMax can remit your payment using SEPA/ACH/PayPal, then ZeniMax may elect to carry forward the amount owed to subsequent months until the total amount owed is at least twenty-five dollars (USD $25.00) (or its equivalent in local currency). If the payment for any calendar month is less than two-hundred dollars (USD $200.00) (or its equivalent in local currency) and ZeniMax can remit your payment only using wire transfer, then ZeniMax may elect to carry forward the amount owed to subsequent months until the total amount owed is at least two-hundred dollars (USD $200.00) (or its equivalent in local currency).

10.2 All payments to Provider will be made in U.S. Dollars or if you are outside of the United States of America, ZeniMax may remit payment to you in the local currency of your address for payment, using ZeniMax’s then-current rates for converting USD into or from your local currency. ZeniMax will use ACH/SEPA, wire transfer or PayPal, where applicable, to deliver payments.  Provider will bear any transfer fees charged by the receiving bank, and ZeniMax will bear any wire transfer fees charged by the transferring bank.

10.3 Neither ZeniMax nor its affiliates are responsible for delay or misapplication of payment because of incorrect or incomplete information supplied by Provider or its bank or for failure of a bank to credit Provider’s account. Provider must provide ZeniMax (or its third-party payment processor) with all financial, tax and banking information requested so ZeniMax (or an affiliate) can pay Provider any amounts owed under this Agreement. ZeniMax will notify Provider of any changes to the required financial, tax, and banking information via the Bethesda Creations Content Portal or through updates to the ZeniMax Guidelines.

10.4 Provider is responsible for its own taxes, including any taxes unique to where Provider operates its business, that are related to any payments Provider may receive under this Agreement. Provider must provide accurate information regarding its tax profile as requested by ZeniMax. If taxes are required to be withheld on any amounts to be paid by ZeniMax to Provider, ZeniMax will deduct such taxes from the amount owed and pay them to the appropriate taxing authority and, as required, will secure and deliver to Provider an official receipt for any such taxes withheld. ZeniMax will use reasonable efforts to minimize such taxes to the extent permissible under applicable law, and each Party will reasonably cooperate with the other to obtain the lowest tax rates or elimination of such taxes pursuant to the applicable income tax treaties.

11. EXPENSES

Unless otherwise set forth in this Agreement, each Party will bear its own costs and expenses that are incurred in the performance of their obligations under this Agreement.

12. [Intentionally Deleted]

13. TERM AND TERMINATION

13.1 Termination by ZeniMax. ZeniMax shall have the right to terminate this Agreement by providing written notice to Provider as follows:

13.1.0 For material breach by Provider upon expiration of a thirty (30) day cure period commencing from the date of notice of material breach, provided that such material breach is curable and has not been cured.

13.1.1 Immediately for any material breach by Provider if such material breach is not curable.

13.1.2 Immediately in the event that Provider (i) files or has filed against it a petition in bankruptcy; (ii) is adjudged bankrupt; (iii) becomes insolvent; (iv) makes an assignment for the benefit of creditors; (v) discontinues its business; or (vi) has a receiver appointed for it or its business who is not discharged within thirty (30) days.

13.1.3 Immediately in the event that Provider or any of its affiliates commences, directs or controls any legal action (whether against ZeniMax, any of its affiliates, any customer, distributor, licensee or contractor of ZeniMax or any of its affiliates) alleging intellectual property infringement with respect to BGS Games, Bethesda Creations, or Bethesda Creations Content Development Account.

13.1.4 Immediately in the event that ZeniMax terminates or decides not to launch the Bethesda Creations service. 

13.1.5 After one (1) year from the Effective Date of the Agreement, in ZeniMax’s sole discretion, upon sixty (60) days’ written notice to Provider.

13.2 Termination by Provider. Provider shall have the right to terminate this Agreement by providing written notice to ZeniMax as follows:

13.2.1 For material breach by ZeniMax upon expiration of a thirty (30) day cure period commencing from the date of notice of material breach, provided that such material breach is curable and has not been cured.

13.2.2 Immediately for any material breach by ZeniMax if such material breach is not curable.

13.3 Upon expiration or termination of this Agreement, ZeniMax will have no obligation to host Bethesda Creations or sell any Approved Offerings and only the following Sections shall survive:  Sections 1, 3, 4.3, 6.6, 9 (but only with respect to payments for activities occurring during the Term), 10 (but only with respect to payments for activities occurring during the Term), 11, 13.3, 14, 15, 16, 17, 18 and 19.

14. CONFIDENTIALITY AND PUBLICITY

14.1 Confidential Information.  Each Party acknowledges that by reason of its relationship to the other Party under this Agreement it will have access to and acquire knowledge, material, data, systems and other information concerning the operation, business, financial affairs and intellectual property of the other Party (including its affiliates) that may not be accessible or known to the general public (referred to as “Confidential Information”).

14.2 NDA. If you already have a non-disclosure agreement with ZeniMax, or if you have already agreed to confidentiality terms in connection with your participation in the Durable Provider program (either, a “NDA”), the NDA will apply to this Agreement instead of Sections 14.3-14.4 below. If no such NDA exists, Sections 14.3-14.4 will apply.

14.3 No Disclosure/Use.  Each Party agrees that it will: (i) maintain and preserve the confidentiality of all Confidential Information received from the other Party (the “Disclosing Party”), both orally and in writing, including taking such steps to protect the confidentiality of the Disclosing Party’s Confidential Information as the Party receiving such Confidential Information (the “Receiving Party”) takes to protect the confidentiality of its own confidential or proprietary information; provided, however, that in no instance shall the Receiving Party use less than a reasonable standard of care to protect the Disclosing Party’s Confidential Information; (ii) disclose such Confidential Information only to its own employees on a “need-to-know” basis, and only to those employees who have agreed to maintain the confidentiality thereof pursuant to a written agreement containing terms least as stringent as those set forth in this Agreement; (iii) not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that each Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors so long as such third parties agree to maintain the confidentiality of such Confidential Information. Each Receiving Party further agrees to use the Confidential Information of the Disclosing Party only for the purpose of performing its obligations under this Agreement. The Receiving Party’s obligation of confidentiality shall survive this Agreement for a period of five (5) years from the date of its termination or expiration and thereafter shall terminate and be of no further force or effect; provided, however, that with respect to Confidential Information which constitutes a trade secret, such information shall remain confidential so long as such information continues to remain a trade secret. The Parties also mutually agree to (1) not alter or remove any identification or notice of any copyright, trademark, or other proprietary rights which indicates the ownership of any part of the Disclosing Party’s Confidential Information; and (2) notify the Disclosing Party of the circumstances surrounding any possession or use of the Confidential Information by any person or entity other than those authorized under this Agreement.

14.4 Exclusions.  The confidentiality obligations of the Parties described above shall not apply to Confidential Information which the Receiving Party can prove: (i) has become a matter of public knowledge through no fault, action or omission of or by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure by the Disclosing Party, was rightfully obtained by the Receiving Party from a third party who was lawfully in possession of such Confidential Information without restriction; (iv) was independently developed by the Receiving Party without resort to the Disclosing Party’s Confidential Information; or (v) must be disclosed by the Receiving Party pursuant to law, judicial order or any applicable regulation (including any applicable stock exchange rules and regulations); provided, however, that in the case of disclosures made in accordance with the foregoing clause (v), the Receiving Party must (unless prohibited by law) provide prior written notice to the Disclosing Party of any such legally required disclosure of the Disclosing Party’s Confidential Information as soon as practicable in order to afford the Disclosing Party an opportunity to seek a protective order, or, in the event that such order cannot be obtained, disclosure may be made in a manner intended to minimize or eliminate the disclosure of Confidential Information.

14.5 Publicity.  Provider will reasonably consult with and coordinate with ZeniMax regarding release dates and publicity regarding advertising and Offerings for Bethesda Creations to avoid oversaturation or dilution of announcements in the market, including providing ZeniMax with written notice of any such release dates and publicity at least fourteen days (14) in advance.

15. PRIVACY AND DATA SECURITY

15.1 Privacy Laws.  Provider shall at all times perform its obligations hereunder in accordance with ZeniMax’s privacy policy, the requirements of any contracts or codes of conduct to which Provider is a party and any applicable laws or regulations related to the processing of Personal Data (as defined below) and/or the privacy of individual data subjects (collectively, “Privacy Laws”), including obtaining and at all times maintaining any appropriate registrations or certifications under such Privacy Laws.

15.2 Data Processing.  For the purposes of this Agreement, “Personal Data” has the meaning set forth in applicable Privacy Laws, specifically including without limitation any and all personally identifiable information of ZeniMax, its affiliates, and its and their customers or employees, as well any copies or corresponding reference files kept or made by Provider thereof in any format.  To the extent Provider is required to process Personal Data, Provider expressly acknowledges and agrees that it will only process such Personal Data in accordance with terms and conditions of this Agreement and as necessary to perform its obligations hereunder. 

15.3 Information Security.  Provider shall establish, employ and at all times maintain physical, technical and administrative security safeguards and procedures sufficient to prevent any unauthorized processing of Personal Data and/or use, access, copying, exhibition, transmission or removal of ZeniMax’s Confidential Information from Provider’s facilities.  Provider shall promptly provide ZeniMax with written descriptions of such procedures and policies upon request.  ZeniMax shall have the right, upon reasonable prior written notice to Provider and during normal business hours, to conduct on-site security audits or otherwise inspect Provider’s facilities to confirm compliance with such security requirements.

16. REPRESENTATIONS AND WARRANTIES

16.1 Standing; Due Authorization.  Provider represents, warrants and covenants that it: (i) is an entity duly formed and/or organized and validly subsisting pursuant to the laws of its jurisdiction of formation and/or organization; (ii) is qualified to do business in the jurisdictions in which it operates; and (iii) has due authorization and authority to enter into this Agreement and to fully perform its obligations hereunder.

16.2 Performance. Provider represents and warrants that in performing its obligations hereunder, it shall at all times: (i) conduct itself in a professional manner in reasonable accordance with industry standards; and (ii) comply with all applicable laws, statutes, ordinances, rules, regulations and requirements of all governmental agencies and regulatory bodies.

17. LIMITATION OF LIABILITY; DISCLAIMER

17.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO ROYALTIES OWED TO PROVIDER HEREUNDER, UNDER  NO  CIRCUMSTANCES  SHALL ZENIMAX OR ITS AFFILIATES  BE  LIABLE  TO  PROVIDER FOR (1) ANY CLAIMS OR DAMAGES RELATED TO THIS AGREEMENT IN EXCESS OF ONE THOUSAND DOLLARS ($1000USD) REGARDLESS OF THEORY OF LIABILITY, WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE, OR (2) FOR ANY SPECIAL, CONSEQUENTIAL, RELIANCE, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING LOST PROFITS, REVENUE OR GOODWILL.

17.2 THE BETHESDA CREATIONS SERVICE, AND ANY TOOLS, TECHNICAL HELP, ADVICE OR OTHER SUPPORT PROVIDED BY ZENIMAX AND/OR ITS AFFILIATES, ARE PROVIDED AS IS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENIMAX DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE FOREGOING.

18. DISPUTE RESOLUTION

18.1 Governing Law; Venue. This Agreement shall be subject to the governing law and venue provisions applicable to the Microsoft Services Agreement to which Provider agreed at the time Provider established its Bethesda Creations Content Development Account.

18.2 Injunctive Relief. Provider agrees that in the event of any breach or alleged breach by Provider of any covenant or agreement in this Agreement, ZeniMax would encounter extreme difficulty in attempting to prove the actual amount of damages suffered by it as a result of such breach and may not have adequate remedy at law in such event. Provider therefore agrees that, in addition to any other remedy available at law or in equity, in the event of such breach, ZeniMax shall be entitled to seek and receive specific performance and temporary, preliminary and permanent injunctive relief from violation of any of said covenants and agreements without the requirement of proving the amount of any actual damage to ZeniMax resulting or expected from such breach.

18.3 Attorney Fees. In any action arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its costs and attorney fees reasonably incurred in connection with the dispute.

19. MISCELLANEOUS

19.1 Assignment. Provider may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of ZeniMax, which may be withheld in ZeniMax’s sole discretion. ZeniMax may assign this Agreement to an affiliate of ZeniMax upon notice to Provider.

19.2 Notices.  All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) if personally served or delivered (including via US mail), upon delivery, (b) if transmitted by email, facsimile or other electronic means, upon the earlier of actual receipt or within one (1) business day following transmittal or (c) if transmitted by overnight carrier, upon the earlier of actual receipt or two (2) business days following transmittal.  In each case, such notices and other communications shall be sent to a Party at the addresses set forth in this section.

In addition, any notice by ZeniMax applicable to BGS Providers generally, such as a change of Royalty Fee pursuant to Section 5.3, may be duly given upon posting or publishing to the Bethesda Creations website.

If to Provider:

The current contact information for Provider in the Bethesda Creations Content Portal

 

If to ZeniMax:

ZeniMax Media Inc.

1370 Piccard Drive

Rockville, MD 20850

Attn: Bethesda Creations

Email: creations@bethesdastudios.com  

19.3 Severability. If any provision of this Agreement is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to the applicable laws of such jurisdiction so as to be valid and enforceable only if it can be so amended without materially altering the intention of the Parties.  If the intent of the Parties cannot be preserved, or if Section 17, in whole or in part, is found to be unenforceable, this Agreement shall terminate and become be null and void. 

19.4 Waiver. Waiver by either of the Parties of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereof. 

19.5 Entire Agreement. This Agreement (including Exhibit A hereto, which is incorporated herein by reference) constitutes the entire agreement between the Parties with respect to the subject matter hereto and all prior agreements and negotiations are merged herein.

19.6 Interpretation. The headings contained herein are for convenience and reference only, do not form a substantive part of this Agreement and in no way modify, interpret or construe the intentions of the Parties. No provision of this Agreement shall be interpreted for or against any Party because that Party or its legal representative drafted such provision.  The words “including” and/or “include” shall be interpreted without limitation when used in this Agreement.  If this Agreement is translated into any language other than English, the English language version of this Agreement shall prevail. A reference to a statute or statutory provision herein is a reference to such statute or statutory provision as amended, extended or re-enacted from time to time.

19.7 Relationship. This Agreement does not create any worker or employer-employee relationship, partnership, joint venture, franchise or agency relationship between ZeniMax and Provider. Neither Party nor any of its representatives may make any statement, representation, warranty or promise to the contrary or on behalf of the other Party.

[END OF TERMS AND CONDITIONS – EXHIBIT A TO FOLLOW]

Exhibit A

Royalty Tier Fees