game submission agreement

You do not transfer ownership of your Game to Microsoft by submitting it, but you do grant Microsoft the worldwide right (a) to host, reproduce, distribute and license the Game to certain members of the community (currently App Hub members) for purposes of review and evaluation; and (b) to host, reproduce, distribute, market, promote and resell (under the applicable terms of this Agreement) licenses to install and use the Game to end users. You also grant Microsoft the right to publish your name in connection with the Game.

Microsoft is under no obligation to accept or use your Game, and may remove your Game at any time without advance notice to you, for any reason or no reason, in Microsoft's sole discretion. You understand that your Game will be distributed free of charge to and reviewed by other members of the App Hub community, such as other App Hub members, to determine its suitability for publication to the community prior to it being made publicly available. You also understand that if your Game is made available for download by end users, you will have no control over the placement of your Game in relation to other games, or over whether your Game is a Featured Game (defined below).

You agree to comply with all requirements and obligations detailed in the then-current version of the App Hub Guide, currently located at http://create.msdn.com/en-us/home/faq (the “App Hub Guide”). The App Hub Guide supplements this Agreement and provides detailed requirements related to your Game such as support requirements, content guidelines, payment process, technical specifications and submission guidelines for your Game. Microsoft may revise the App Hub Guide from time to time in its reasonable discretion and will provide you with a reasonable time-frame to bring your Game into compliance with such revisions. Failure to comply with the obligations in the then-current App Hub Guide may, among other things, result in removal of your Game and forfeiture of outstanding amounts owed to you under this Agreement.

4.1 Definitions. The following capitalized terms have the following meanings:

“MS Point” means a proprietary form of trading value that Microsoft makes available to consumers to redeem for goods or services that are distributed online from Microsoft or its partners. Microsoft reserves all rights to determine rates, value and policies applicable to the use of MS Points.

“MS Points Charged” means the MS Points actually redeemed by a given end user to download the Game.

“MS Points Remittance Rate” means that rate that Microsoft uses to calculate the monetary amounts due to you for Games downloaded in exchange for MS Points, which is currently USD $.0121 per MS Point. Microsoft may update the MS Points Remittance Rate by posting it to the App Hub Guide from time to time and may, but is not obligated to, provide a local currency MS Points Remittance Rate for Game downloads that occur outside of the United States of America. Although Microsoft may change the remittance rate in its discretion, Microsoft will use the same rate for you as it uses to calculate similar payments to other game developers.

“Net Sales” means the revenue received by Microsoft for the sale of end-user licenses to the Game, minus any pass-through taxes such as sale, use, and/or VAT/GST that are ordinarily collected from end-users. For end-user licenses to the Game sold in exchange for the redemption of Microsoft Points, the revenue received by Microsoft is determined by calculating the product of the MS Points Charged and the MS Points Remittance Rate. If the Game is sold as part of a product offering that includes the Game as well as other products or content, the revenue attributable to the Game is the proportionate amount of the total price of the offering that the individual price of the Game bears to the sum of the individual prices for all content included in the offering.

“Transaction Fee” means a percentage of Net Sales of the Game retained by Microsoft as a fee for distribution of the Game. Using automated tools, certain games will receive prominent placement on Xbox LIVE Marketplace or will otherwise receive marketing and promotional support from Microsoft (a “Featured Game”). The Transaction Fee for each download of the Game sold while it is a Featured Game will be at Microsoft's sole discretion, up to a maximum of 60% depending on the level of marketing and promotional support as further detailed in the App Hub Guide. The Transaction Fee for each download of a Game other than while it is a Featured Game will be 30%.

“USD” means United States Dollar.

4.2 Amount. As complete compensation to you for the sale of end-user licenses to the Game under this Agreement, Microsoft will remit to you the Net Sales minus the Transaction Fee in accordance with the payment procedure as set forth in this Agreement. If you are outside of the United States of America, Microsoft may remit payment to you in the local currency of your address for payment, using Microsoft's standard process for converting USD into your local currency.

4.3 Promotions, Refunds. Microsoft will not owe you any amount on Games distributed free of charge for promotional purposes or for downloads of the Game if Microsoft refunds the amount charged (e.g. for customer service purposes).

4.4 Payment Process, Information. You must provide Microsoft (or its third party payment processor) with all financial, tax and banking information requested in order to make payment of amounts owed under this Agreement. Microsoft will notify you of the required information from time to time via updates to the App Hub Guide. Failure to provide such information within 60 days after submission of your Game, or failure to keep such information current may result in Microsoft removing your Game from distribution and forfeiture of amounts owed to you under this Agreement.

4.5 Statement. After the end of each calendar quarter with respect to which Microsoft owes you at least USD $150, Microsoft will provide you with a statement and the amount owed. If Microsoft does not owe you at least USD $150, Microsoft may carry forward the amount owed until such time as Microsoft owes you at least USD $150. In the event Microsoft ceases distributing your Game and owes you less than USD $150, you agree that, as a result of the cost involved in payment processing for such small amounts, you waive your right to payment of this balance.

4.6 Pricing. You may select a suggested retail price for your Game at the time of submission, however, as the retailer of your Game, Microsoft retains sole discretion to determine the retail price of your Game (which Microsoft may change from time to time).

4.7 Taxes. You are responsible for your own taxes related to payments you may receive under this Agreement. If taxes must be withheld on payments under this Agreement by any government authority, Microsoft (and, if applicable, its third party payment processor) is authorized to deduct those taxes from the amount it owes you and remit them to the relevant authority.

You represent and warrant to Microsoft the following:

The Game is your own original work and you have obtained any and all consents, approvals or licenses required for you to submit your Game (including obtaining the written consent of any third parties where applicable);

Your Game does not contain any hidden content, cheats, worms, viruses, corrupted files, “time bombs” (or other mechanisms designed to disable or change an end user's access) or other unauthorized, hidden programs, and your Game does not harvest any user information;

Your Game does not contain any unauthorized third party content or Prohibited Content (as identified in the App Hub Guide), complies with the Terms of Use (currently at http://create.msdn.com/termsofuse ) and Code of Conduct (currently at http://create.msdn.com/conduct ), and otherwise complies with the App Hub Guide and with the applicable laws of each jurisdiction to which you are submitting the Game for distribution;

You are at least 18 years of age on the date you submit your Game to Microsoft; and

You are entering into this Xbox LIVE Indie Games Submission Agreement for commercial purposes and that in submitting your Game to Microsoft you are acting as a games developer.

6.1 You are solely responsible and liable for the Games you submit. You are responsible for supporting your Game in accordance with the requirements, if any, set forth in the App Hub Guide.

6.2 You will defend indemnify and hold harmless Microsoft and its affiliates from any claims, damages, costs and expenses (including reasonable attorney's fees), which arise out of or are related to your Game or any breach of this Agreement or the terms of your App Hub Membership.

You can recover from Microsoft and its suppliers related to Microsoft's use or licensing of your Game under this Agreement, or for any other claim related to this Agreement, only direct damages up in an amount equal to your fee for your App Hub Membership for one month. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages. These limits and exclusions also apply even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages. Microsoft makes no, and disclaims all, warranties or representations regarding its performance in relation to this Agreement.

If you decide to terminate the license granted to Microsoft under this Agreement, you must first provide Microsoft with 30 days written notice at the address listed for termination notices in the App Hub Guide. Microsoft's license rights will terminate and Microsoft will cease distribution of your Game upon the expiration of such 30-day period, but you grant Microsoft a perpetual, limited license to re-distribute your Game to end-users who previously purchased a license to the Game and need to re-download the Game as a result of storage management, technical or other reasons.

9.1 All copies of the Game (e.g. the electronic files) you submit will be retained (or destroyed) by Microsoft and will not be returned. You are responsible for retaining a back up copy of your Game.

9.2 You may not assign this Agreement or any rights or obligations hereunder without the express written consent of Microsoft. Microsoft may assign this Agreement at any time.

9.3 Microsoft may sublicense its rights under this Agreement to third parties to assist Microsoft in performing under this Agreement.

9.4 This Agreement is governed by the laws of the state of Washington, which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles. You irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA for all disputes arising out of or relating to this Agreement.

9.5 This Agreement is nonexclusive, and nothing in this Agreement may be construed as restricting Microsoft from entering into other, similar agreements with other developers, or from acquiring, licensing, developing, manufacturing, or distributing technology that is similar to your Game(s).