Xsolla Backend End User License Agreement
Version: 1.0.0, Updated: 2024-04-25
This Xsolla Backend End User License Agreement (the “Agreement”) applies to your use of Xsolla Backend, Xsolla’s online gaming technology platform. Xsolla Backend can be used for a wide range of applications, including video games; and much more.
This Agreement is a legal document detailing your rights and obligations related to using Xsolla’s proprietary computer software program known as Xsolla Backend and any updates or upgrades to the program made available by Xsolla (the “Licensed Technology”). By downloading or using the Licensed Technology, you are agreeing to be bound by the terms of this Agreement, and this Agreement will be effective upon the first of those events to occur. If you do not or cannot agree to the terms of this Agreement, do not use the Licensed Technology. When we say, “you,” “your” or “yourself”, we mean you as an individual or the legal entity exercising rights under this Agreement through you. When we say “Xsolla,” “we” or “us,” we are referring to the Xsolla entity responsible for providing the Licensed Technology in your region detailed in Section 9.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A CLASS ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND XSOLLA AGREE TO RESOLVE DISPUTES ONLY IN YOUR INDIVIDUAL CAPACITIES AND NOT AS PART OF A CLASS ACTION SEE SECTION 15 . YOU HAVE A TIME LIMITED RIGHT TO OPT OUT OF THIS WAIVER. BY AGREEING TO THE TERMS OF THIS AGREEMENT, YOU ARE ALSO AGREEING TO CONTRACTUAL TERMS THAT WILL LIMIT SOME OF YOUR LEGAL RIGHTS, INCLUDING
A DISCLAIMER OF WARRANTY, AN EXCLUSION OF CERTAIN KINDS OF DAMAGES, AND A LIMITATION OF LIABILITY.
Table of Contents
How You Can Share Products You’ve Made with the Licensed Technology
How You Can Share the Licensed Technology When It Isn’t Part of a Product
B. Xsolla Backend Free Hosting Services
D. Other Rights and Obligations
A. The Licensed Technology
1. What Technology Xsolla Is Licensing to You
The Licensed Technology licensed to you under this Agreement includes all Xsolla Backend code and related content that is copied to your computer when you install Xsolla Backend.
This includes Backend Code, Examples, and Starter Content, in particular
“Backend Code” means the Source Code (as defined below) and object code of Xsolla Backend, including any future versions made available to you by us under this Agreement and any object code compiled from that Source Code.
“Source Code” means the human readable form of a software program, including all modules it contains, plus any associated interface definition files, scripts used to control compilation, and installation of an executable.
“Examples” means the code, artwork, or other content made available by us in the Samples and Templates folders in the install directory.
“Starter Content” means the code, artwork, or other content made available by us and installed to your computer when you install Xsolla Backend, excluding Examples.
The Licensed Technology includes any modified version of any of the foregoing that you make under the License.
Licensed Technology does not include any items, assets, content, or other materials that we may make available to you in other ways (the “Content”), even if that Content can be used with Xsolla Backend. For example, assets you may download from Xsolla Backend Marketplace are not Licensed Technology and are not licensed to you under the terms of this Agreement.
2. How You Can Use the Licensed Technology
Xsolla grants you a non-exclusive, non-transferable, non-sublicensable license to privately use, reproduce, display, perform, and modify the Licensed Technology in accordance with the terms of this Agreement (the “License”). This means that as long as you are not violating this Agreement or applicable law, you can privately use the Licensed Technology however you want. If you want to share the Licensed Technology or anything you make with it, Sections 3 and 4 below address when and how you can do that.
5. Other Restrictions on Your Use of the Licensed Technology
a. Non-Compatible Licenses
You may not, and may not permit others to, combine, Distribute, or otherwise use the Licensed Technology with any code or other content which is covered by a license that would directly or indirectly require that all or part of the Licensed Technology be governed under any terms other than those of this Agreement (those licenses, the “Non-Compatible Licenses”). This means, for example, that you may not combine the Licensed Technology with code or content that is licensed under any of the following licenses: GNU General Public License GPL , Lesser GPL LGPL (unless you are merely dynamically linking a shared library), or Creative Commons Attribution-ShareAlike License.
b. General Restrictions
You must ensure that your activities with the Licensed Technology do not:
● violate any applicable law or regulation;
● result in the Licensed Technology being rented or leased;
● misappropriate any of our other products or services;
● support a claim by you or any third party that the Licensed Technology infringes a patent;
● result in a sale or grant of a security interest in any Licensed Technology; or
● result in a Distribution of a Product or the Licensed Technology in any manner other than is permitted by Sections 3 and 4.
6. Who Owns What
As between you and us, you own all rights, other than rights in the Licensed Technology, in the Products you develop under this Agreement, and we own all title, ownership rights, and intellectual property rights in the Licensed Technology.
All rights granted to you under this Agreement are granted by the License only and not by sale, and all of those rights are limited by and subject to the terms of this Agreement. No license or other right in any Xsolla technology or intellectual property rights other than the Licensed Technology is granted under this Agreement, and no license or other rights will be created under this Agreement by implication, estoppel, or otherwise. Any attempted sublicense that is not consistent with the terms of this Agreement will be null and void.
a. Proprietary Notices and Attribution
You agree to retain the copyright, trademark, and other proprietary notices and disclaimers of Xsolla as they appear in the Licensed Technology.
If a Product you develop under this Agreement has credits, you must place the following notices in the credits (replacing xxxx with the current year):
“[Product name] uses Xsolla Backend. Xsolla Backend is a trademark or registered trademark of Xsolla USA, Inc. in the United States of America and elsewhere.”
“Xsolla Backend, Copyright 2018 - xxxx, Xsolla USA, Inc. All rights reserved.”
No other license or right is granted under this Agreement in the trademarks, service marks, trade names, and logos associated with Xsolla, Xsolla’s products, services and other intellectual property, including Xsolla Backend (the “Xsolla Trademarks”). All use of the Xsolla Trademarks will inure to the sole benefit of Xsolla. You agree not to engage in any activity that could tarnish, dilute, or affect the validity or enforceability of the Xsolla Trademarks or cause consumer confusion or diminish any goodwill relating to any Xsolla Trademarks.
If you wish to make further use of the Xsolla Trademarks, please go to design.xsolla.com for more information.
b. Third Party Software
The Licensed Technology incorporates and is bundled with code developed by third parties (the “Third Party Software”) that may be subject to additional or alternative license terms. If Third Party Software is incorporated in the Licensed Technology and is subject to additional license terms, those terms or other attribution requirements can be found in the installation directory for each engine version under the ThirdPartyNotices file.
By entering into this Agreement and using Third Party Software, you are accepting the terms of those additional or alternative licenses. In the case of additional license terms, the additional license terms will take precedence over any inconsistencies with the terms of this License with regard to the Third Party Software licensed under those additional license terms. You agree that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to your uses of Third Party Software.
c. Feedback and Contributions
You grant Xsolla a right to freely use and disclose any feedback or suggestions that you provide to us regarding the Licensed Technology (the “Feedback”). You acknowledge that we may use any Feedback, including any ideas contained in Feedback, for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, modify, or improve the Licensed Technology in our sole discretion. You understand that we may treat Feedback as non-confidential.
You grant Xsolla a non-exclusive, fully-paid, irrevocable, transferable, sublicensable license to reproduce, distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify and make derivative works based on, and otherwise exploit any Contributions for all current and future methods and forms of exploitation in any country. “Contributions” means any information or content, including software or code, that (a) you make available to Xsolla via submissions to forums, wiki, Xsolla’s GitLab server, or other source code repository under our control and that are based upon or incorporate the Licensed Technology or (b) that you provide to Xsolla and explicitly designate in writing as a Contribution.
You represent and warrant that you have sufficient rights in any Feedback or Contribution that you provide to Xsolla to grant Xsolla and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights. If any rights to be licensed under this Section 6(c) may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert any of those rights.
B. Xsolla Backend Free Hosting Services
Xsolla hereby offers to the User a free hosting service (“Free Hosting Service”) as part of its Xsolla Backend suite, under the terms and conditions set forth in this Agreement. This Free Hosting Service is designed to provide Users with a reliable and scalable cloud-based infrastructure for the hosting of their Products.
a. Service Description: The Free Hosting Service includes, but is not limited to, server hosting, bandwidth provision, and data storage necessary for the operation of the User’s Product. The service aims to support the User’s Product lifecycle from development to deployment and operation.
b. Usage Limits: The Free Hosting Service is subject to usage limits, including but not limited to data storage capacity, bandwidth usage, and server resources, as determined by the Company and communicated to the User from time to time. The Company reserves the right to modify these limits at its discretion.
c. Service Level: While the Company endeavors to provide the highest level of service availability and security, the Free Hosting Service is offered “as-is” without any warranties regarding uptime or data integrity. Users are encouraged to implement their own data backup and recovery measures.
d. Transition to Paid Services: Should the User’s needs exceed the usage limits of the Free Hosting Service, or should the User seek enhanced service levels, including but not limited to increased data storage, bandwidth, or dedicated support, the User may opt to transition to the Company’s paid hosting services. Details of such services and applicable fees will be made available by the Company.
e. Acceptable Use: The User agrees to use the Free Hosting Service in compliance with the Acceptable Use Policy outlined in this Agreement and not to engage in any activity that could harm the Company’s infrastructure or other users’ interests. Prohibited activities include, but are not limited to, hosting of illegal content, perpetration of security threats, and excessive resource consumption. The User agrees to utilize the Free Hosting Service in a manner that is respectful of the Company’s infrastructure and considerate of other users. Specifically, the User commits to not engaging in activities that could compromise the integrity, security, or performance of the Company’s services or adversely affect other users. These prohibited activities include, but are not limited to:
Hosting, distributing, or sharing content that is unlawful, including material that infringes upon intellectual property rights or promotes illegal activities.
Engaging in actions that pose security risks, such as spreading malware, conducting phishing attacks, or attempting unauthorized access to systems.
Consuming resources (such as bandwidth, storage, and processing power) in a manner that significantly exceeds normal usage patterns, potentially impairing service performance for other users.
The Company reserves the right to determine, at its sole discretion, what constitutes excessive resource consumption, security threats, or violations of this provision. Failure to comply with these terms may result in suspension or termination of the User’s access to the Free Hosting Service.
C. Our Relationship
1. The Agreement Between You and Xsolla
a. Amendments
If we make changes to this Agreement, you are not required to accept the amended Agreement, and this Agreement will continue to govern your use of any Licensed Technology you already have access to. However, if we make changes to this Agreement, you will not be allowed to access certain Xsolla services or download the Licensed Technology unless you have accepted the amended Agreement. If we make changes, we will provide you with notice, such as by sending an email or giving you notice when you next log into an Xsolla service.
b. Alternative and Additional Terms
With respect to your rights and obligations related to Licensed Technology, this Agreement supersedes any prior Xsolla Backend End User License Agreement or Xsolla Backend End User License Agreement you may have. Those agreements will continue to survive only to the extent that you continue to have rights and obligations under them related to Content, unless otherwise agreed by the Parties. Once you have also agreed to the Xsolla Content License Agreement, those agreements will be superseded completely. This Agreement, however, does not supersede, amend or otherwise affect other agreements you may have with us or any sublicensor authorized by us, other than as described in Section 7(a). For example, if we grant you a license to use Xsolla Backend to develop one or more products under a custom license, that custom license and not this Agreement governs your use of Xsolla Backend and related materials with respect to those products.
c. Notice
Where this Agreement calls for notice from us, including written notice, we may provide notice to you through the Xsolla services or by any email address that you’ve provided to us. Our notices, when provided to you through the Xsolla services, will be effective when you access the Xsolla services, and when sent to you by email, will be effective when they are sent.
2. Who are You?
a. You
If you use the Licensed Technology on behalf of another person or entity, (i) all references to “you” throughout this Agreement will include, and this Agreement will be binding on, that person or entity, (ii) you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (iii) in the event you violate this Agreement, that person or entity agrees to be responsible to us.
b. Eligibility for This Agreement
If you are under the age of legal majority where you live or otherwise require the consent of a parent or legal guardian to enter into this Agreement under applicable law, you may use the Licensed Technology only under the supervision of a parent or legal guardian who also agrees to be bound by this Agreement.
You are not eligible to enter into this Agreement and may not download or use the Licensed
Technology if you are, or are acting on behalf of any person or entity that is (i) on the Specially Designated Nationals and Blocked Persons List or other similar lists maintained by any U.S. government entity pursuant to economic sanctions laws or (ii) located in, organized in, or ordinarily resident in any country or territory that is subject to a U.S. embargo, in each case unless your use of the Licensed Content is authorized by U.S. law.
c. Xsolla Account
In order to access and download the Licensed Technology, you must first set up an account with us, which will be governed by Xsolla’s Terms of Service (xsolla.com/terms-of-use). The License (as defined in Section 2 permits use of the Licensed Technology only by individuals who have accessed it by using a valid user account (“Users”). If you are an individual, you are the User.
If you are a legal entity, the individual employees or agents exercising your rights under this Agreement are Users. When exercising a legal entity’s rights under this Agreement, Users are not required to accept this Agreement as individuals. The User may store the Licensed Technology on any of the User’s computers, but the Licensed Technology cannot be shared with others except as part of a permitted Distribution of Licensed Technology as described in Sections 3 and 4.
d. Use by Educational Institutions
As an exception to the above requirement that only a User may use the Licensed Technology, if you are an educational institution, like a school or a library, you may store Licensed Technology on any of your computers, and you may allow all users of those computers to use the Licensed Technology under the License on those computers. However, those users are not authorized under your License to Distribute the Licensed Technology (including as incorporated in a Product). For that, they must obtain a License of their own.
3. Who is Xsolla?
The Xsolla entity entering into this Agreement with you corresponds to where you live, as set forth below:
If you live (or if the primary place of business of the entity on whose behalf you are using the Licensed Technology is):
In the United States of America the Xsolla entity entering into this Agreement with you is Xsolla USA, Inc.
Outside of the United States of America the Xsolla entity entering into this Agreement with you is Xsolla Games Commerce GMBH.
4. Privacy
Your privacy is important to us. Please review our Privacy Policy (xsolla.com/privacypolicy). It describes how we collect, use, and share information when you use the Xsolla services that link to this Privacy Policy.
D. Other Rights and Obligations
1. Disclaimers
Nothing in this Agreement will prejudice any statutory rights that you have that may not be waived. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this and the next sections, so the below terms may not fully apply to you. In those jurisdictions, the exclusions and limitations below apply only to the extent permitted by the applicable laws of such jurisdictions.
THE LICENSED TECHNOLOGY, INCLUDING ALL INFORMATION, CONTENT, MATERIALS, CODE, AND SOFTWARE, ARE PROVIDED BY XSOLLA ON AN “AS IS” AND “AS AVAILABLE” BASIS. XSOLA AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS THE “XSOLLA PARTIES” MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE LICENSED TECHNOLOGY. YOUR USE OF THE LICENSED TECHNOLOGY IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE XSOLLA PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. THE XSOLLA PARTIES DO NOT WARRANT THAT THE LICENSED TECHNOLOGY IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING WARRANTY DISCLAIMERS WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
2. Limitation of Liability
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE XSOLLA PARTIES, WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE XSOLLA PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $1,000 AND THE TOTAL AMOUNTS YOU HAVE PAID IF ANY TO XSOLLA UNDER THIS AGREEMENT DURING THE TWELVE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
SEEKING DAMAGES AS LIMITED BY THIS SECTION 12 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY ACT OR OMISSION OF THE XSOLLA PARTIES.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
3. Indemnification
This section only applies to the extent allowed by the applicable laws of your jurisdiction. If the applicable laws of your jurisdiction do not allow you to enter into the indemnification obligation below, then you assume, to the extent permitted by the applicable laws of your jurisdiction, all liabilities, damages, judgements, awards, losses, costs, expenses, and fees (including reasonable attorney and expert witness fees) that are the stated subject matter of the indemnification obligation below.
You agree to indemnify and hold harmless the Xsolla Parties from and against all liabilities, damages, judgments, awards, losses, costs, expenses, and fees (including reasonable attorney and expert witness fees) arising out of or in connection with any third-party claims, demands, or actions (i) that, if true, would involve a breach by you of this Agreement (including, without limitation, any distribution or sublicensing of the Licensed Technology in violation of this Agreement), or (ii) related to your Products or your exercise of the License (except to the extent the third party is alleging your authorized use of unmodified Licensed Technology originally provided to you by Xsolla under this Agreement infringes any patent, trademark, or copyright).
4. Governing Law and Jurisdiction
a. Governing Law. This Agreement and its interpretation, and any disputes that arise hereunder, shall be governed in all respects by the laws of the State of California, USA, without giving effect to any principles that may provide for the application of the law of another jurisdiction. Your national law may explicitly give you rights and obligations to resolve disputes in a manner different from the one indicated below. In this case, your national law applies.
b. Disputes. Most User concerns can be resolved by use of our Xsolla support site at https://help.xsolla.com. If we are unable to resolve your concerns and a dispute remains between you and Xsolla, this section explains how we agree to resolve it.
This Agreement is between you and Xsolla (USA), Inc., a company registered in the USA, State of California with the company registration number C3140351 and with the office at 15260 Ventura Boulevard, Suite 2230, Sherman Oaks, California, 91403 USA, email: support@xsolla.com, telephone: +1(818)435-6613; the laws of the State of California, excluding its conflicts-of-law rules, govern this Agreement and your use of the Xsolla Backend Technology; and you expressly agree that for claims and disputes not subject to the arbitration agreement below, the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement shall be determined by final and binding arbitration in Los Angeles, California, before a single arbitrator. You and Xsolla agree to submit to the personal jurisdiction of that court in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The arbitration shall be resolved by the arbitration of one arbitrator (“Arbitrator”) in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, Applicable Law and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website at www.adr.org, and the provisions of this Agreement. Any election to arbitrate by one party shall be final and binding on the other. The place of arbitration shall be Los Angeles, California, USA. The cost of any arbitration shall be shared equally by the parties but the Arbitrator shall be authorized to enter, as part of the award to a party, an amount equal to reasonable attorneys’ fees and other costs related to the arbitration, and, where appropriate, limited by the AAA Consumer Rules. The Arbitrator may award equitable relief. The Arbitrator’s decision(s) shall be final and conclusively binding on the Parties, and judgment upon such award may be entered in any court of competent jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone or online. The Arbitrator shall make a decision in writing and shall provide a statement of reasons if requested by either party. The Arbitrator must follow the Applicable Law, and any award may be challenged if the Arbitrator fails to do so. YOU AND XSOLLA AGREE THAT EACH ONLY MAY BRING CLAIMS AGAINST THE OTHER IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The Arbitrator shall not consolidate another person’s claims with your claims and shall not preside over any type of representative or class proceeding. The Arbitrator may only award declaratory or injunctive relief in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
c. Limitation of Time to File Claims. Any cause of action or claim you may have arising out of or relating to this Agreement must be commenced within one (1) year after the cause of action accrues; otherwise such cause of action or claim is permanently barred.
d. Arbitration Notice. A party that intends to seek arbitration must first send a written notice to Xsolla of its intent to arbitrate (“Notice”). The Notice to Xsolla should be sent by any of the following means: (i) via electronic mail to legal@xsolla.com; or (ii) by sending the Notice by certified mail to Xsolla (USA), Inc. according to the address referenced above. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Xsolla may commence an arbitration proceeding.
5. No Class Actions
To the maximum extent permitted by applicable law, you and Xsolla agree to only bring disputes arising out of or related to this Agreement in an individual capacity and will not:
a. seek to bring, join, or participate in any class or representative action, collective or classwide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
b. consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to this Agreement.
You have the right to opt-out of this class action waiver within 30 days of the date on which you first accepted this Agreement unless a longer period is required by applicable law. To exercise this right, you must send written notice of your decision to the following address: Xsolla USA, Inc., Legal Department, ATTN CLASS ACTION OPT OUT, 15260 Ventura Blvd, Suite 2230, Sherman Oaks, CA, 91403, U.S.A. Your notice must include your name, mailing address, and account name, and state that you wish opt-out of this class action waiver. To be effective, this notice must be received by Xsolla and postmarked or deposited within 30 days of the date on which you first accepted this Agreement. You are responsible for ensuring that Xsolla receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt.
6. Miscellaneous
a. Support
Xsolla does not have any support obligations with respect to the Licensed Technology under this Agreement. Support may be obtained from the official Xsolla Backend Discord Server. Without limiting the foregoing, Xsolla does not have any obligation to make new versions of the Licensed Technology available, or to continue to make available for access or download any versions of the Licensed Technology.
b. U.S. Government Matters; Export Control
The Licensed Technology is a “Commercial Item” (as defined at 48 C.F.R. §2.101 , consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). The Licensed Technology will only be licensed to U.S. Government end users as Commercial Items and with only those rights as are granted to other licensees under this Agreement.
You understand and agree that the Licensed Technology may not be used, accessed, downloaded, or otherwise exported, reexported, or transferred in violation of applicable export control, economic sanctions, and import laws and regulations, such as the U.S. Export Administration Regulations and U.S. Department of the Treasury’s Office of Foreign Assets Control regulations.
c. No Assignment
You may not assign your rights or obligations under this Agreement, including any rights to use the Licensed Technology without Xsolla’s express prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. Any attempted assignment in violation of the foregoing will be void. We may assign this Agreement, in whole or in part, with or without notice to you.
d. Relationship of the Parties
The relationship between you and Xsolla will be that of independent signatories, and nothing in this Agreement will be construed to constitute either party an agent of the other party. Without limiting the foregoing, neither party will have authority to act for or to bind the other party in any way, including to make representations or warranties or to execute agreements on behalf of the other party. This Agreement will not be construed to create an association, joint venture, or partnership between the parties or to impose any partnership obligation or liability upon any party.
e. Language
To the fullest extent permitted by applicable law, the controlling language for this Agreement is English. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. Any translation has been provided for your convenience.
f. No Waiver; Severability
Any act by Xsolla to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity. Unless otherwise stated in this Agreement, if any term of this Agreement is held by a court or tribunal of competent jurisdiction to be unenforceable, the term will be enforced to the maximum extent permissible and the remaining terms of this Agreement will remain in full force and effect.
You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated. Xsolla’s obligations are subject to existing laws and legal process, and Xsolla may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement. g. Survival
Upon conclusion of this Agreement, all royalties due to Xsolla will become immediately due and payable and all rights and remedies of Xsolla will survive.
h. Entire Agreement
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Xsolla relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
E. Royalty Addendum
If you Distribute a Product under Section 3(b) of the Agreement (a “Royalty Product”) or generate advances or other revenue for a Royalty Product prior to its Distribution, you must comply with the terms of this Royalty Addendum.
1. What Products Require Royalty Payments to Xsolla
This addendum only applies to advances or other revenue generated in connection with Royalty Products. As a reminder, as further specified in Section 3(a) of the Agreement, this means the addendum generally does not apply to (and no royalty payments are due for):
a. Distributions of Non-Backend Products;
b. Distributions of Products that do not directly generate revenue;
c. Distributions of Products within your company group;
d. Distributions of Products to clients who hired you to develop the Products for them; and
e. Distributions of Products via Xsolla Backend Marketplace or Xsolla’s GitLab server to third parties who are separately licensed by us to use the Backend Code.
2. Prerequisites for Distributing a Product Requiring Royalty Payments
Before you Distribute a Royalty Product that will generate revenue, you must give Xsolla notice of your intended Distribution (“Notice of Distribution”) as early as reasonably possible and in any event prior to the Distribution of the Royalty Product. Likewise, if you plan on beginning to generate revenue from a Royalty Product that you have already Distributed, you must submit a Notice of Distribution as early as reasonably possible before the Royalty Product is used to generate revenue. You must give Xsolla the notice required under this section by submitting the release form found at xsolla.cloud/release.
Please note that failure to submit your Notice of Distribution of a Royalty Product on time will mean that you will not be entitled to deduct some Allowed Exclusions (see Section 4(b)) when calculating your Royalty Revenue.
3. What is the Royalty Rate?
You agree to pay Xsolla a royalty equal to 5% of all Royalty Revenue (as defined in the next section), regardless of whether that revenue is received by you or any other person or entity.
4. How the Royalty Payment Is Calculated
Royalty payments are calculated by multiplying the royalty rate of 5% by the Royalty Revenue. “Royalty Revenue” means all worldwide gross revenue attributable to each Royalty Product minus any allowed exclusions.
a. Worldwide Gross Revenue
Worldwide gross revenue includes all revenue directly generated by your Royalty Product, regardless of who receives the revenue and regardless of whether you Distribute your Royalty Product to end users directly, self-publish via the App Store or any similar store, or work with a publisher or distributor.
Royalty Revenue includes gross revenue:
i. resulting from any and all sales of a Royalty Product to end users through any and all media, including but not limited to digital and retail;
ii. resulting from any and all in-app purchases, downloadable content, microtransactions, subscriptions, sale, transfer, or exchange of user-generated content for use with a Royalty Product, or redemption of virtual currency which directly affects the operation of the Royalty Product, whether redeemed within the Royalty Product or externally;
iii. from any Kickstarter or other crowdfunding campaign which is directly associated with Royalty Product access or in-Royalty Product benefit (e.g., in a multi-tiered campaign, if an amount is established in an early tier solely for Royalty Product access, your royalty obligation will apply to that amount for each backer with the same access, but not on additional amounts in higher tiers based on ancillary benefits);
iv. from in-app advertising and affiliate programs;
v. from any advance payments for a Royalty Product (from a publisher or otherwise);
vi. received in connection with a Royalty Product’s inclusion in a streaming, subscription, or other game-delivery service (e.g., Apple Arcade, Microsoft GamePass, or any similar or successor services), including without limitation development funds and bonuses; and
vii. received in any other form actually attributable to a Royalty Product (unless excluded below).
b. Allowed Exclusions
However, some gross revenue is excluded from the calculation of Royalty Revenue.
Quarterly exclusion: You will not owe us any royalty payments for calendar quarters in which you do not reach a certain threshold.
The following is excluded from the calculation of Royalty Revenue:
i. revenue attributable to a Royalty Product from a calendar quarter during which the gross revenue for such Royalty Product is less than $10,000.
The following simplified examples illustrate how quarterly exclusions work.
Your Royalty Product generates $9,000 in the first calendar quarter and $9,000 in the second calendar quarter. You will not owe any royalties for either quarter.
Your Royalty Product generates $9,000 in the first calendar quarter and $10,100 in the second calendar quarter. You will not owe any royalties for the first quarter and, unless another exclusion applies, you will owe $505 ($10,100 x .05 in royalties for the second quarter.
Royalty alternative exclusions: You may have already made a royalty payment or have other fee obligations to Xsolla on certain revenue generated by a Royalty Product.
To prevent you from being charged twice by Xsolla on such revenue, the following exclusions apply to the calculation of Royalty Revenue:
i. royalties that you pay on an advance payment of revenue for a Royalty Product that is recoupable by the payer, such as a publisher, may be credited against future royalty payments that you incur under this Agreement for that Royalty Product; and
ii. revenue generated from sales of your Product using Xsolla Pay Station, and from any subsequent in-Product purchases making use of Xsolla’s payment services.
The following simplified examples illustrate how royalty alternative exclusions work.
● Your publisher pays you a $1,000,000 advance on a Royalty Product you are developing that the publisher may recoup against future sales of your Royalty Product. You owe $50,000 to Xsolla for that advance 5% of $1,000,000.
● You charge $20 for your Royalty Product and have sold 90,000 copies of it using Xsolla payment services. Under this Agreement, you would not owe any royalty payments on the $1,800,000 you have earned.
Other exclusions: The following are also excluded from the calculation of Royalty Revenue:
i. revenue from a Royalty Product which is Distributed (whether by you or any other third party) only to third parties who are separately licensed by us to use Xsolla Backend is excluded from Royalty Revenue;
ii. revenue from ancillary products that are not software and that do not contain embedded information (such as QR codes) that affects the operation of the Royalty Product (e.g., comic books, soundtracks, apparel);
iii. cash prizes given with awards earned for the Royalty Product;
iv. revenue from donations for a Product which are not tied to Royalty Product access or in-
Royalty Product benefits;
v. funding you receive from Xsolla through the Xsolla Funding Club program; and
vi. revenue from a Royalty Product that is used, displayed, and performed solely at a physical location under your control or the control of your authorized distributors and that is not otherwise Distributed to users, such as interactive amusement park rides, coin-op arcades, or location-based VR experiences, which use the Licensed Technology.
5. Additional Examples
The following additional simplified examples illustrate how royalty payments are calculated. You charge $10 for your Royalty Product on the App Store. When you distribute a copy, Apple may only pay you $7 (having deducted 30% as a distribution fee). However, your Royalty Revenue would be $10 and your royalty payment to Xsolla would be $0.50 5% of $10.
6. Reporting and Making Your Royalty Payments
Within 30 days after the end of each calendar quarter in which you earn Royalty Revenue, you must report the Royalty Revenue to Xsolla on a per Product basis and pay Xsolla 5% of the Royalty Revenue. Additional information on royalty reporting and payment can be found at xsolla.cloud/release.
Xsolla reserves the right to charge a 2% late fee, per calendar quarter (compounding), for any amounts unpaid after the required due date.
Except to the extent required by applicable law, all payments, fees and royalties are nonrefundable under all circumstances.
7. Other Obligations You Have
a. Taxes
You are responsible for all taxes on all payments required to be made by you under this Agreement (other than taxes that Xsolla is obligated to pay on its income, which are Xsolla’s responsibility). If you are required by a government agency to reduce your payment to Xsolla for any reason, you are required to provide sufficient documentation to Xsolla supporting the withholding. Xsolla cannot answer your questions about withholding taxes or taxes in general but provides general resources available at xsolla.com/contact-us.
b. Records and Audits
You agree to keep accurate books and records related to your development, manufacture, Distribution, and sale of Royalty Products and related revenue. Xsolla may conduct reasonable audits of those books and records. Audits will be conducted during business hours on reasonable prior notice to you. Xsolla will bear the costs of audits unless the results show a shortfall in payments in excess of 5% during the period audited, in which case you will be responsible for the cost of the audit.