EULA Final?
by Aron Kirkpatrick · in Torque Game Engine · 08/02/2001 (10:06 pm) · 11 replies
*ahem* Excuse me, I've gotten previous points in this now-editing post cleared up. However, I have another question:
In the EULA, "Net Proceeds" is defined by the standard definition of Gross Proceeds. Net Proceeds in standard terms would be revenue - cost. In this, cost isn't factored in and thus could be seen as a point of contention. This naturally worries me as I would not like to see 50% of the cost of the game turned into 50% of the cost of the game minus whatever costs GarageGames says was incurred.
Also, I would like to have it in writing what I get for the 50% of the proceeds. The licensee is required to publish through them, but gains no guarentee that the product that has likely been worked on for over a year will be published at all.
In addition, I would like to know why GarageGames needs the right to modify the games sent to them. What's to protect the Licensee from GG removing the company and development team's names from the credits, so that only theirs is shown?
These are points that desperately need clarification.
In the EULA, "Net Proceeds" is defined by the standard definition of Gross Proceeds. Net Proceeds in standard terms would be revenue - cost. In this, cost isn't factored in and thus could be seen as a point of contention. This naturally worries me as I would not like to see 50% of the cost of the game turned into 50% of the cost of the game minus whatever costs GarageGames says was incurred.
Also, I would like to have it in writing what I get for the 50% of the proceeds. The licensee is required to publish through them, but gains no guarentee that the product that has likely been worked on for over a year will be published at all.
In addition, I would like to know why GarageGames needs the right to modify the games sent to them. What's to protect the Licensee from GG removing the company and development team's names from the credits, so that only theirs is shown?
These are points that desperately need clarification.
#2
Aron Kirkpatrick, they give us the right to audit their books, so you shouldn't worry about them sneaking extra money away (not implying that they would.)
I agree with your third point though. But I don't think they would change the credits. I feel that they should review your game, if any changes are necessary they should contact you and tell you what to change, or give you the option of having them do it. Which brings me to the Eula:
"If (a) the Games contain design and/or performance defects causing Licensor or end-users to experience abnormally ending and/or invalid and/or incorrect results from the Games during operation and (b) Licensor incurs internal or third party costs to fix the errors or any bugs, then (c) Licensor may recoup its actual costs from any amounts that might otherwise be payable to Licensee under this or any other agreement between the parties."
This bothers me. It would be easier for GG to contact us. Since we know our own code it will be easier, cheaper, and faster for us to fix something. Instead of GG's programmers sifting through the code trying to find the problem while we're being charged. Then again I guess this could be avoided by making sure the game isn't buggy before submitting it :).
What happens if the game is free and there's a bug? Will the licensee owe GG money for fixing it? Or will GG not waste their time?
----------------------------------------------------
Please remember that I'm not implying that GG will do anything malevolent. I'm merely stating what "could" happen. I don't like making enemies, so please don't misunderstand my intentions.
Chris "Dark" Evans
08/03/2001 (8:55 am)
GEMA, there's a lot at stake here for us. We have to know every little detail. I'm not implying that GG will screw us, I'm just saying that most people don't feel safe when someone has a lot of control over them.Aron Kirkpatrick, they give us the right to audit their books, so you shouldn't worry about them sneaking extra money away (not implying that they would.)
I agree with your third point though. But I don't think they would change the credits. I feel that they should review your game, if any changes are necessary they should contact you and tell you what to change, or give you the option of having them do it. Which brings me to the Eula:
"If (a) the Games contain design and/or performance defects causing Licensor or end-users to experience abnormally ending and/or invalid and/or incorrect results from the Games during operation and (b) Licensor incurs internal or third party costs to fix the errors or any bugs, then (c) Licensor may recoup its actual costs from any amounts that might otherwise be payable to Licensee under this or any other agreement between the parties."
This bothers me. It would be easier for GG to contact us. Since we know our own code it will be easier, cheaper, and faster for us to fix something. Instead of GG's programmers sifting through the code trying to find the problem while we're being charged. Then again I guess this could be avoided by making sure the game isn't buggy before submitting it :).
What happens if the game is free and there's a bug? Will the licensee owe GG money for fixing it? Or will GG not waste their time?
----------------------------------------------------
Please remember that I'm not implying that GG will do anything malevolent. I'm merely stating what "could" happen. I don't like making enemies, so please don't misunderstand my intentions.
Chris "Dark" Evans
#3
To put it in more tangible terms, a team of 6 each spending simply an hour a day working for a year would end up with 2190 hours. Indeed, Chris, we have to know every little detail.
If you doubt the validity of any my points, then understand they are not exactly my points. This is the feedback my lawyer gave me. I don't rush into such a large commitment, even if it only has a $100 pricetag.
08/03/2001 (3:16 pm)
An accomplished game designer once told me the best way to get a game finished is to reduce your risk. It is quite a risk, attempting this. Time is money and creating a game takes a lot of time. To put it in more tangible terms, a team of 6 each spending simply an hour a day working for a year would end up with 2190 hours. Indeed, Chris, we have to know every little detail.
If you doubt the validity of any my points, then understand they are not exactly my points. This is the feedback my lawyer gave me. I don't rush into such a large commitment, even if it only has a $100 pricetag.
#5
08/03/2001 (3:47 pm)
I did, but the changes are not pertinent to the points I am making here. It does give me some hope, as it suggests GarageGames is willing to work with people. 
#6
1. You are afraid we will use the term Net Proceeds to take away all of your royalties. There are legitimate expenses that shoud be subtracted from the Gross revenue before the royalty is calculated, and here are some that we came up with. We can't list them all in a contract because nobody has ever tried being an on-line publisher before, and we may discover legitimate costs that need to be passed on. If we don't cover these costs, we will go out of business. Anyway, here are two examples:
* VISA/MC billing charges amount to around 5% of the purchase price.
* CD, duplication costs, and labor for the burn on demand products.
We cannot bloat the Net proceeds with bogus expenses in order to rip off our develpers. You have the option of examining our books to make sure this does not happen. If we rip off our developers, we will not have any. We do not want to be in the business of selling the V12 technology one time to a developer. Our plan is to sell you the V12 at a very low rate, so we can eventually make money by selling games. The only way we make money is if you make money.
If you think our license and publishing agreement is onerous, I would encourage you to look around. Most standard publishers box publishing agreement has many such catch alls that allow them to deduct expenses such as Cost of Goods (and you have no control over their costs, lobor, or materials. In fact, they sometimes use this as a "profit" center, deducting standard amounts from your gross proceeds), sales commissions, marketing costs, distribution costs, etc.
Check the cost of distributing your game through Realnetworks. If you deliver them a completed game, and do not give them exclusive distribution, they will charge you 65% of Gross just to add you to their ESD system.
2. You don't understand why we have the clause that allows us to modify your code to fix bugs. This is actually an "upside" clause that protects GarageGames in the case where a successful title has bugs and the developer has moved on to a different publisher and chooses not to fix their problems. Of course, the easiest solution is for the developer to fix the bugs. However, we need a way to protect ourselves in case they decide to bail. GG has no intention of taking over development of your product in this manner. We do not have enough developers to do so. Chris, you hit the nail on the head... don't ship buggy games to start with. Aron's argument that we could chage the credits makes absolutely no sense. What would be the monetary, business or money making reason for doing so?
3. You are concerned that your game will not be published at all. As long as your game meets the ESRB Rating of Mature or less, meets our installation requirements (proper credits, possible inclusion of tracking or copy protection code, etc.), and doesn't have bugs, it will be published. You set your price.
In a big sense we are asking you to trust us. Look at our track record. Look at what we have done with GG so far. We could not have been in this industry and made it this far if our mode of operation was screwing people. However, if you don't feel comfortable with the arrangement, then please don't participate. Watch what we do, and see how the other products are treated, how the developers are treated, and see what unfolds. Once you feel comfartable, then we will still welcome you into the GG community of developers.
Jeff Tunnell GG
08/03/2001 (4:30 pm)
Aron and Chris, I hear your arguments, and this is the second time this type of discussion has been gone through on these forums. However, I understand that you are planning on putting a lot of work in, and do not want your efforts thrown out or stolen from you. Let me paraphrase, and see if I can answer your concerns.1. You are afraid we will use the term Net Proceeds to take away all of your royalties. There are legitimate expenses that shoud be subtracted from the Gross revenue before the royalty is calculated, and here are some that we came up with. We can't list them all in a contract because nobody has ever tried being an on-line publisher before, and we may discover legitimate costs that need to be passed on. If we don't cover these costs, we will go out of business. Anyway, here are two examples:
* VISA/MC billing charges amount to around 5% of the purchase price.
* CD, duplication costs, and labor for the burn on demand products.
We cannot bloat the Net proceeds with bogus expenses in order to rip off our develpers. You have the option of examining our books to make sure this does not happen. If we rip off our developers, we will not have any. We do not want to be in the business of selling the V12 technology one time to a developer. Our plan is to sell you the V12 at a very low rate, so we can eventually make money by selling games. The only way we make money is if you make money.
If you think our license and publishing agreement is onerous, I would encourage you to look around. Most standard publishers box publishing agreement has many such catch alls that allow them to deduct expenses such as Cost of Goods (and you have no control over their costs, lobor, or materials. In fact, they sometimes use this as a "profit" center, deducting standard amounts from your gross proceeds), sales commissions, marketing costs, distribution costs, etc.
Check the cost of distributing your game through Realnetworks. If you deliver them a completed game, and do not give them exclusive distribution, they will charge you 65% of Gross just to add you to their ESD system.
2. You don't understand why we have the clause that allows us to modify your code to fix bugs. This is actually an "upside" clause that protects GarageGames in the case where a successful title has bugs and the developer has moved on to a different publisher and chooses not to fix their problems. Of course, the easiest solution is for the developer to fix the bugs. However, we need a way to protect ourselves in case they decide to bail. GG has no intention of taking over development of your product in this manner. We do not have enough developers to do so. Chris, you hit the nail on the head... don't ship buggy games to start with. Aron's argument that we could chage the credits makes absolutely no sense. What would be the monetary, business or money making reason for doing so?
3. You are concerned that your game will not be published at all. As long as your game meets the ESRB Rating of Mature or less, meets our installation requirements (proper credits, possible inclusion of tracking or copy protection code, etc.), and doesn't have bugs, it will be published. You set your price.
In a big sense we are asking you to trust us. Look at our track record. Look at what we have done with GG so far. We could not have been in this industry and made it this far if our mode of operation was screwing people. However, if you don't feel comfortable with the arrangement, then please don't participate. Watch what we do, and see how the other products are treated, how the developers are treated, and see what unfolds. Once you feel comfartable, then we will still welcome you into the GG community of developers.
Jeff Tunnell GG
#7
"a) Licensee may not:
...
(iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software."
I think it's fair and hardly a problem for you guys that licensees be afforded the same protection.
As well, with the right to modify the code, GarageGames could benevolently or malevolently change pieces of the game which result in bugs. Then, the developer is penalized for bugs which were GG's fault. This also concerns me.
If the game is buggy and the developer drops out, why is that a concern for GarageGames? It does not burden GarageGames with any extra costs, and if there is the concern about reputation of high quality games, GarageGames could always remove it. There is no guarentee of publishing.
"2. You don't understand why we have the clause that allows us to modify your code to fix bugs." This is not the case. The EULA states nothing about modifying for fixing bugs, if it did I would be slightly less concerned. It simply gives GarageGames rights to modify the Game for any reason. If there is something truly wrong with the game that the developer will not fix, once again, I propose that it simply not be released.
The statement that we should "just not have bugs" is foolish. I am hard pressed to come up with a single name of a major title that was shipped without any bugs. Especially when it comes to online content, which is subject to a great deal more unknowns. Diablo2, for example, went through a great deal of testing, with thousands of people involved. I was even involved in some of that testing, but the final product often crashed on my system.
I do not feel that it is necessary at all, but I would be satisfied were the EULA to state that GarageGames may modify the code solely for the purpose of fixing bugs and only in the event that the developer does not address the problem within a reasonable amount of time.
Next, as per "Net Proceeds": what disturbed me was that it is defined incorrectly. This implies to me that the EULA is attempting to mislead people. As you can see, no mention of cost of production was mentioned there, and so it directly states that the developer will be getting a greater share of the profit than is the truth.
The truth is, saying "trust me" when you have a license agreement I sign is simply not enough. This might be completely honest and I might not have any problems, however by the time I find out it will be too late. I would like to work with you guys, but I must see these points addressed while I can.
08/03/2001 (6:16 pm)
For changing of credits, I meant that in terms of splash-screens on startup, and all other areas where credit is given to any group. If it's not a big deal, or nobody would want to do it, then why is the same thing a part of the EULA?"a) Licensee may not:
...
(iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software."
I think it's fair and hardly a problem for you guys that licensees be afforded the same protection.
As well, with the right to modify the code, GarageGames could benevolently or malevolently change pieces of the game which result in bugs. Then, the developer is penalized for bugs which were GG's fault. This also concerns me.
If the game is buggy and the developer drops out, why is that a concern for GarageGames? It does not burden GarageGames with any extra costs, and if there is the concern about reputation of high quality games, GarageGames could always remove it. There is no guarentee of publishing.
"2. You don't understand why we have the clause that allows us to modify your code to fix bugs." This is not the case. The EULA states nothing about modifying for fixing bugs, if it did I would be slightly less concerned. It simply gives GarageGames rights to modify the Game for any reason. If there is something truly wrong with the game that the developer will not fix, once again, I propose that it simply not be released.
The statement that we should "just not have bugs" is foolish. I am hard pressed to come up with a single name of a major title that was shipped without any bugs. Especially when it comes to online content, which is subject to a great deal more unknowns. Diablo2, for example, went through a great deal of testing, with thousands of people involved. I was even involved in some of that testing, but the final product often crashed on my system.
I do not feel that it is necessary at all, but I would be satisfied were the EULA to state that GarageGames may modify the code solely for the purpose of fixing bugs and only in the event that the developer does not address the problem within a reasonable amount of time.
Next, as per "Net Proceeds": what disturbed me was that it is defined incorrectly. This implies to me that the EULA is attempting to mislead people. As you can see, no mention of cost of production was mentioned there, and so it directly states that the developer will be getting a greater share of the profit than is the truth.
The truth is, saying "trust me" when you have a license agreement I sign is simply not enough. This might be completely honest and I might not have any problems, however by the time I find out it will be too late. I would like to work with you guys, but I must see these points addressed while I can.
#8
I'm getting this source, no question about it. Like Aron said though, I don't rush into such a large commitment, even if it only has a $100 pricetag. I have to know everything about it.
Your terms seem very reasonable to me. I think they will work out well.
What about the price though? Who sets it? I asked a similar question in a different post and one of your associates said that we do. This isn't in the Eula though, it doesn't say whether GG or the developers set it. I want our game free, but it's going to be good. What kind of guarantee do I have that it will stay free and GG won't raise the price (again, not implying that you will?)
Chris "Dark" Evans
08/03/2001 (8:57 pm)
I trust you guys. One major reason I trust you is because you're so active in these forums. The other reason is because I sense that you've been in our shoes before.I'm getting this source, no question about it. Like Aron said though, I don't rush into such a large commitment, even if it only has a $100 pricetag. I have to know everything about it.
Your terms seem very reasonable to me. I think they will work out well.
What about the price though? Who sets it? I asked a similar question in a different post and one of your associates said that we do. This isn't in the Eula though, it doesn't say whether GG or the developers set it. I want our game free, but it's going to be good. What kind of guarantee do I have that it will stay free and GG won't raise the price (again, not implying that you will?)
Chris "Dark" Evans
#9
We are happy with our agreement and are moving ahead with the GG concept. Good luck in finding a better agreement or publishing arrangement. Sounds like you have a lot of industry experience, so it shouldn't be too hard.
Jeff Tunnell GG
08/03/2001 (9:47 pm)
Aron,We are happy with our agreement and are moving ahead with the GG concept. Good luck in finding a better agreement or publishing arrangement. Sounds like you have a lot of industry experience, so it shouldn't be too hard.
Jeff Tunnell GG
#10
08/03/2001 (11:01 pm)
Good luck to you and GarageGames, too. It's so nice to see a company finally doing so much to the indie developers out there.
#11
Slip of the toungue, or intended comment... Hmmm... LOL
08/04/2001 (9:24 am)
"It's so nice to see a company finally doing so much to the indie developers out there."Slip of the toungue, or intended comment... Hmmm... LOL
Torque Owner Nermion
They will rip all your own credits from the game and put in their own, and if you read EULA more carefully you will see that actually they will suck out all of the money your project/game makes, and you will get nothing!!!
I mean people how much more picky can you get? You get the best deal on this planet and you are still not satisfied... Where else do you get the full source to the engine, are allowed to make any game you want, and then get offered 50% of the profit if you make something that sells and what did you do? You wrote some scripts, built few models and maybe copla cool levels, and you are still complaning, GG took out the boring part when it comes to game programming and left only the most interesting part to you and gave you then right to take 50% if anything comes out of it. No to talk about the support I am sure they will be giving to those whose games look promissing.
If you were a writter and you wrote books, and GG was publishing books, you would never get a deal like this!!!
If you care so much about money and area afraid that there will be none left for you when GG is done with the counting, then make a game that sells zillion copies and even if GG takes 50% you will be still rich!!!