1. Introduction

The following terms and conditions of use, the application form provided, and any other additional terms we provide to you via email, on Fizzy.com or on our Site(s) (the Agreement) contain the full terms and conditions that apply to your participation in our Fizzy Developers program. We reserve the right to modify this Agreement at any time and your participation in Fizzy Developers is deemed acceptance of this Agreement and any modifications to it. Please ensure that you check our Site(s) regularly for any modification or updates to this Agreement. This Agreement modifies, replaces and supersedes any previous version. In the event that there is a conflict between this Agreement and any other additional terms, this Agreement shall take precedence unless such additional terms expressly reference variation to this Agreement.

2. Definitions

3RD sense, We, Our, Us, mean 3RD sense Australia Pty Ltd.

Fizzy, Fizzy.com means the website owned by 3RD sense.

Site(s) means any Internet website(s) or platform(s) which are owned, operated or controlled by or on behalf of 3RD sense, including Fizzy.com.

Developer, You, Your mean the individual or entity which applied to supply Game Content to Us.

Player(s), User(s), Customer(s), Visitor(s) means any person visiting our Site(s).

Free Game(s) means any game(s) and supporting content including, but not limited to source and object code, images, text descriptions and trademarks, brand names and other content provided to Us for use on our Site(s), by Developer which can be played for free by Customers.

Download Game(s) means any game(s) and supporting content including, but not limited to source and object code, images, text descriptions and trademarks, brand names and other content provided to Us for use on our Site(s), by Developer for which Customers download to their computer. The Download Game constitutes the demonstration version, which can be played for free by the user and the full version, for which the user pays a single fee to access.

Subscription Game(s) means any game(s) and supporting content including, but not limited to source and object code, images, text descriptions and trademarks, brand names and other content provided to Us for use on our Site(s) by Developer for which Customers pay a fee to access as part of the Subscription Membership services on our Site(s).

Promotional Game(s) means any game(s) and supporting content including, but not limited to source and object code, images, text descriptions and trademarks, brand names and other content provided to Us for use on our Site(s), by Developer which is used by 3RD sense and other third party users, including but not limited to 3RD sense Affiliates, to promote the Game(s) and Our Site(s) and is played for free by Users.

Game(s) means Free Game(s), Download Game(s), Subscription Game(s) and Promotional Game(s) provided to Us for use on our Site(s), by Developer which is used by 3RD sense and other third party users, including but not limited to 3RD sense Affiliates, to promote the Game(s) and Our Site(s) and are played by Our Users.

Fizzy Developers Documentation means the set of instructions and code We provide to Developer(s) to participate in Fizzy Developers. These instructions and this code are accessed at http://developers.fizzy.com.

Net Download Game Revenue means the total of the fees which Customers pay to Us to access the full versions of Developer's Download Game(s), less transactional fees, applicable taxes, Chargebacks and Refunds.

Net Site Subscription Revenue means revenue earned on Our Site(s) from fee(s) paid to Us by Customers to access Subscription Games and Services on our Site(s), less transactional fees and applicable taxes.

Net Advertising Revenue means revenue, derived by Us from advertising on Our Site(s), less agency and network fees.

Promotion Rights mean the non-exclusive, non-transferable right and licence to advertise market and promote our Services.

Fraud means traffic and financial transactions generated on our Site(s) through illegal means or any other action committed in bad faith to defraud Us, as determined by Us in our sole discretion.

Chargeback is a payment dispute initiated by a cardholder with their credit card issuing bank. The amount of the disputed transaction is immediately withdrawn from the merchant's (Our) bank account.

Refund is a payment returned to customer either as part of our refund policy or where it is felt appropriate to do so by Our customer services staff.

3. Our Obligations

3.1. We shall retain the right to provide our Sites and Game Products and operate Fizzy Developers in any form we deem appropriate. We retain the right to change or cancel any part of our Site(s), at any time and in any manner we deem appropriate and may make alterations to Fizzy Developers or cancel this Fizzy Developers Licence and Distribution Agreement without prior notice to you. However, any strategic change of policy, such as the cancellation of any part of our Sites, our Game Products or this Fizzy Developers Licence and Distribution Agreement at any time, shall be made with prior notice to you. Cancellation shall be effective seven (7) days after notice of cancellation to you.

3.2. Notwithstanding the terms of this Agreement, we shall not be held responsible or liable for any loss of income, or loss of the ability to produce income, incurred by you even if such losses should arise from our inability to deliver the Site(s), the Game(s) and/or operate Fizzy Developers for any reason whatsoever, whether we are at fault or whether a third party is at fault.

3.3. Users that utilise the facilities and Site(s) and Game(s) we provide, and all information relating to such Users, shall remain our property at all times.

4. Licence for Game Content

4.1. Developer hereby grants 3RD sense the non-exclusive universe-wide, sublicensable right and licence in and to the Game(s) to use, reproduce, store, promote, publish, publicly display, publicly perform, transmit and distribute via Our Sites.

4.2. Developer acknowledges that 3RD sense shall have sole artistic and editorial control over how to use, display, and promote Free Game(s), Download Game(s), Subscription Game(s) and/or Promotional Game(s) within the scope of the foregoing Licence, or whether to use it at all. Without limiting the Licence, Developer hereby grants 3RD sense the right to use and permit others, including but not limited to all 3RD sense Affiliates, to use images, trademarks, summaries and other material relating to the Game(s) owned or controlled by Developer in order to promote the Game(s) and/or 3RD sense Site(s) in any medium whether now known or hereafter existing.

4.3. 3RD sense shall display a reasonable and legible attribution for Developer within the Game(s) as distributed in substantially its original form, subject to (a) any restrictions or limitations imposed on 3RD sense by any third-party or distributor, and (b) the reasonable commercial judgment of 3RD sense. Placement and sizing of any such attribution will be subject to 3RD sense's sole discretion. Any inadvertent failure shall not be a breach of this Agreement and no breach of this Section shall entitle Developer to terminate this Agreement.

4.4. Developer retains ownership of the Intellectual Property Rights for the Free Game(s), Download Game(s), Subscription Game(s) and/or Promotional Game(s) licensed to 3RD sense.

4.5. Developer retains the right to include links to other sites in their Game(s), provided they comply with the specifications in the Fizzy Developers Documentation found at http://developers.fizzy.com. 3RD sense reserves the right to remove any Game(s) from our Site(s) which breach these specifications.

5. Participation

5.1. To participate in Fizzy Developers the online registration form must be completed and Your Game(s) submitted via the Fizzy Developers panel on http://developers.fizzy.com. All Games must comply to the specifications set out in the Fizzy Developers Documentation made available by 3RD sense. Any games that do not comply to these specifications may be refused participation.

5.2. 3RD sense reserves the right to refuse participation in the Fizzy Developers program and refuse use of Developer Game(s) if we determine that your Game(s):

• promote illegal activities
• promote sexually explicit materials
• promote violence
• promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
• violate intellectual property rights
• or are otherwise deemed inconsistent with the best interests of 3RD sense.

6. Revenue Share

6.1. Developer will receive 50% of the Net Game Download Revenue generated by Your Download Game(s) on Our Site(s) from Users who purchase the full version of Your Download Game(s).

6.2. Developer will receive your share of 50% of the available Net Site Subscription Revenue, if You have submitted Subscription Game(s) to Us for use on Our Site(s). Your share will be based on the number of times your Subscription Game(s) is/are loaded, as a percentage of the total number of all Subscription Game loads.

For example, if the total Net Site Subscription available in one month is $50k, and Developer's Game(s) have generated 10% of total Subscription Game loads, Developer will receive:
(50% x $50,000) x 10% = $2,500.

6.3. Developer will receive your share of 50% of the available Net Advertising Revenue, if You have submitted Free Game(s) to Us for use on our Site(s). Your share will be based on the number of times your Free Game(s) is/are loaded, as a percentage of the total number of Free Game loads.

For example, if the total Net Advertising Revenue available in one month is $25k, and Developer's Game(s) have generated 15% of total Free Game loads, Developer will receive:
(50% x 25,000) x 15% = $1,875.

6.4. 3RD sense makes no representation that any particular amount of revenue will be earned by Developer from Net Game Download Revenue, Net Site Subscription Revenue or Net Advertising Revenue.

6.5. 3RD sense reserves the right to set and adjust pricing for all Game(s) on Our Site(s). From time to time We may offer Customers discounts and promotional pricing for Game(s) and Site Subscription. These discounted and promotional price points will be factored into revenue owed to Developer. From time to time, we may increase or decrease the price points for Download Games and Site Subscriptions. These increased or decreased price points will be factored into revenues owed to Developer.

For example, if 3RD sense offer a 25% discount to Customers on a Developer's Download Game when the usual selling price is $23, the Developer will receive:

Discounted selling price is $23 less 25% = $17.25
Net revenue is $17.25 less $1 transaction fees (these transaction fees may vary and may include local taxes where applicable) = $16.25
Developer share is 50% of $16.25 which is $8.13

6.6. All revenue payments are issued in Australian dollars.

7. Payment

7.1. Final total Revenue Statements will be issued to Developer within 30 days of the end of the previous monthly payment period.

7.2. Any online reporting tools provided by 3RD sense for Developers is a guide only to final monthly revenue. The total revenue available to Developer will be determined after all fees, applicable taxes, Fraud, Chargebacks and Refunds are accounted for. The amount shown on the Revenue Statement is the only amount which will be paid to Developer.

7.3. Payment will be made within 30 days of the Statements being issued.

7.4. 3RD sense will only make payment on Developer accounts with a minimum balance of $100 at the end of the month. Developer accounts with a balance of less than $100 at the end of the month will be carried over into subsequent months until the balance reaches $100.

8. Payment Method

8.1. Developers will be paid via PayPal.

8.2. Developers can also choose to receive payment via wire transfer. Payment via wire transfer incurs a $35 processing fee.

9. Term and Termination

9.1. The term of this Agreement will begin upon our acceptance of these terms and will end when cancelled by either party, in accordance with the terms outlined in clause 9.2, 9.3 and 9.4 of this Agreement.

9.2. You may terminate this Agreement, with or without cause, upon 30 days written notice to us which you should send to us on the Contact Us form in the Fizzy Developers panel on http://developers.fizzy.com.

9.3. You may choose to remove any Game(s) from Fizzy Developers, provided to Us under the terms of this Agreement, upon 30 days written notice to Us which you should send to us on the Contact Us form in the Fizzy Developers panel on http://developers.fizzy.com.

9.4. 3RD sense reserves the right to terminate this Agreement, with or without cause, immediately. You will be contacted with Notice of Termination via email.

10. Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on http://developers.fizzy.com. Modifications may include, for example, changes in the scope of available Revenues, Revenue Share, Payment Terms and Fizzy Developer rules. If any modification is unacceptable to you, your ultimate recourse is to terminate this agreement. Your continued participation in the program following our posting of a change notice or new agreement on Our Site(s) will constitute binding acceptance of the change.

11. No Obligation to Use

3RD sense is not obliged to use Developer's services under this Agreement or to use or include any of the Game(s) thereof, or to produce, exhibit, advertise or distribute any Game(s); but nothing in this paragraph shall relieve 3RD sense of its obligations which may become due for Developer's services under this Agreement.

12. Relationships of Parties

3RD sense Australia Pty Ltd and Developer are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on Our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this agreement.

13. Developer's Representations and Warranties

Developer represents and warrants that:

(a) Developer owns all rights in and to each Game;

(b) each Game is original, has not been sold, assigned, conveyed or encumbered, and Developer shall not sell, assign, convey or encumber any of the rights granted to 3RD sense in this Agreement;

(c) neither any Game nor any part thereof, nor the exercise by any authorised party of any right granted to 3RD sense under this Agreement, shall violate or infringe the patent, trademark, trade name, copyright, literary, dramatic, personal, private or civil property rights, or rights of privacy, so-called 'moral rights' or any other right of any person, or constitute a libel or slander of any person, firm or corporation and upon request, Developer shall promptly provide additional documents evidencing developer's right to use any material or component in a Game;

(d) no Game shall contain any virus, expiration or disabling codes, or other hidden back door.

(e) Developer has not, and shall not, do or commit any act or thing that is or might be in derogation of any rights granted to 3RD sense in this Agreement.

14. Indemnification

Developer shall at all times indemnify and hold 3RD sense and the officers, directors, employees and agents harmless against and from any and all claims, damages, liabilities, costs and expenses (collectively 'Claims') arising out of the exercise of any rights granted in this Agreement, or out of any breach by Developer of any representation, warranty, agreement or other provision of this Agreement.

15. Limitation of Liability

3RD sense will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this Agreement or Fizzy Developers, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and Fizzy Developers will not exceed the total Revenue(s) paid or payable to you under to this Agreement.

16. Disclaimer

3RD sense makes no express or implied warranties or representations with respect to Fizzy Developers or any products sold through Our Site(s) (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our Site(s) will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

17. Law and Jurisdiction

This Agreement will be governed by the laws of New South Wales, Australia. Any action relating to this Agreement must be brought in the federal or state courts located in New South Wales, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.