OFFICIAL RULES
NO PURCHASE NECESSARY TO ENTER OR WIN.
A PURCHASE DOES NOT IMPROVE YOUR CHANCES OF WINNING.
THE CHALLENGE IS GOVERNED EXCLUSIVELY BY THE LAWS OF THE UNITED STATES.
LAUNCH DATE: APRIL 28, 2021
Skillz is excited to announce its partnership with NFL Properties LLC to host a global game developer challenge (the “Challenge”) for the development of new and novel mobile games that utilize the Licensed Marks.
Please read these rules before entering the Challenge. Participation in the Challenge constitutes each Developer’s full and unconditional agreement to and acceptance of these Official Rules and represents that the Developer satisfies all of the eligibility requirements set forth below.
Content:
Section 1.
OVERVIEW OF DEVELOPER CHALLENGE
(A) General Overview
The Challenge is an open, skills-based competitive event. All participants in the Challenge (as further defined below, “Developers”) must have a registered account with Skillz and must meet all requirements set forth in these Official Rules. To register an account with Skillz, click here. In order to participate in the Challenge, and by submitting its Proposal, each Developer expressly agrees to be bound by the terms contained in these Official Rules, which hereby incorporates the Developer Terms of Service. Skillz may modify these rules, or the format and timing of the Challenge, at any time with or without notice to the Developers by posting such modifications to the Challenge Website and all such modifications will become effective immediately upon posting.
(B) Format & Timing
The Challenge shall be operated according to the schedule in the table below. The actual dates for each of the Stages identified below will be on the Challenge Website. Skillz reserves the right to expedite any Game to market, and to make any changes to the schedule, by posting such modifications to the Challenge Website, and all such modifications will become effective immediately upon posting. It is each Developer’s responsibility to check the Challenge Website regularly to stay informed of any changes.
1. Launch
- The Challenge begins!
2. Proposals Due
- Each prospective Developer (each, an “Initial Developer”) must submit to Skillz a proposal (a “Proposal”; the Proposal, along with any subsequent submission, including the mobile game, a “Submission”) with a test game and/or a game design document, including an overview of the proposed mobile game, gameplay description, monetization options, mock-ups and each such Initial Developer’s prior portfolio. For the avoidance of doubt, Skillz shall have no obligation to return any materials contained within the Proposal.
3. Joint Review
Committee Review of Proposals; Developer Notification
- The Joint Review Committee shall determine which of the Initial Developers (no more than 15) will be invited to move to the next stages of the Challenge
- Skillz shall inform the selected Initial Developers (each, a “Selected Developer”) of the results of the Joint Review Committee process
4. Development Period
Monthly Progress Check-Ins
- Selected Developers shall develop their mobile games
- Selected Developers must be available for monthly check-ins with Skillz to demonstrate progress and/or surface issues
5. Joint Review
Committee Review of Selected Developers’ Mobile Games; Finalists Notification
- Selected Developers shall demonstrate their mobile games to the Joint Review Committee
- The Joint Review Committee shall select up to 5 Selected Developers (each, a “Finalist Developer”) to move to the next stages of the Challenge
- Skillz shall inform each Finalist Developer of the results of the Joint Review Committee and shall make a public announcement of the identities of the Finalist Developers (no more than 3 Finalist Developers are expected to develop and publicly launch their mobile game)
6. Limited Soft Launch
- Finalist Developers shall soft launch their mobile games in public forums to be announced by Skillz (the “Soft Launch”) and subject to the requirements noted below:
- The Joint Review Committee may select up to five (5) Finalist Developers to enter into appropriate limited sub-licenses by and between Skillz and the Developer (each, a “Winning Developer”; the Winning Developers, Finalist Developers, Selected Developers and Initial Developers shall collectively be referred to as the “Developers”); such limited sub-license shall be granted to Finalist Developers only, and shall terminate according to the terms therein unless amended via execution of an extended license signed by Skillz and the Winning Developer(s)
- Finalist Developers’ Soft Launches may occur on a rolling basis
- All mobile games offered during the Soft Launch must be available commercially to end users on both iOS and Android
- Skillz may, but is not obligated to, spend $25,000 on each Finalist Developer’s mobile game (the “UA Spend”) during a sixty (60) day period to further optimize each game
7. Final Selection
- The Joint Review Committee shall review the Finalist Developers’ mobile games and the results of the Soft Launch
8. Game Launch Readiness
- Each Winning Developer must enter into an extended sub-license for the Winning Game in order to incorporate the Licensed Marks into its Winning Game and prior to the Soft Launch, such extended license to be granted solely to the Winning Developers to extend the term of the sub-license entered into in Stage 6 and add any additional terms, if any, as mutually agreed between Skillz and the Winning Developer(s)
9. Expanded Soft Launch of Winning Game(s)
- Each Winning Developer shall perform expanded public testing of its Winning Game in mutually agreed territories
- Skillz may, at its option, spend on any Winning Developer’s mobile game during a thirty (30) day period for the purpose of further optimizing such game
10. Launch of Winning Game(s)
- Each Winning Game, with the Licensed Marks incorporated, will be launched in the U.S.
- Skillz shall spend the UA Budget Prize (USD $50,000) on each Winning Developer’s mobile game during a sixty (60) day period for the purpose of further optimizing such game, such UA Budget Prize may be increased at Skillz sole discretion
- Skillz shall promote the Winning Game(s) across its owned and operated channels (e.g., social media channels, Games.Skillz.com) for a minimum of six (6) months following launch of the Winning Game
- Skillz and NFLP shall issue a Press Release announcing the Winning Game
- NFLP shall promote the Winning Game(s) across its owned and operated channels (e.g. social media channels, NFL.com) at least one (1) time per month for a minimum of six (6) months and, through such promotions, may deliver an average of at least 50 million impressions per month during the six month period following launch of the Winning Game
(C) Mobile Game Qualifications
As part of the Challenge, all proposals and mobile games must comply with the following:
- Game genre and/or mechanics shall not:
- be an 11 v 11 simulation;
- include a betting or sports betting component (e.g., the game mechanic shall not include any concept of betting on the outcome of, or any result from, an NFL football game or other NFL event (e.g., the NFL Draft)); or
- include live game, archival game or other video-captured footage.
- No mobile game shall include any matters inappropriate for association with the activity of professional football, including those matters listed on the NFL’s Prohibited Categories list, which may be revised from time to time by posting a modification on the Challenge Website.
- Each mobile game shall comply with the policies of the app stores through which the apps are distributed.
- Game genre and/or mechanics shall not:
(D) Developer Eligibility Criteria.
To be eligible to enter the Challenge In order to advance in the Challenge, Developers must comply with the following:
- Each Developer must be a currently operating LLC or corporation; and
- Each Developer must be located in a country other than the Balkans, Belarus, Burma, Côte D’Ivoire, Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, North Korea, Sudan, Syria, Québec, Zimbabwe and otherwise where prohibited by law, which includes any country under U.S. export controls or sanctions (see https://www.treasury.gov/resourcecenter/sanctions/Programs/Pages/Programs.aspx ).
All applicable United States federal, state, provincial and local laws and regulations apply. Although the Challenge is governed exclusively by the laws and regulations of the United States, other local rules and regulations may apply to certain Developers, so all Developers should check their local laws to ensure that he or she is eligible to participate in skills-based competitions. The Sponsors reserve the right to award alternative prizes where needed to comply with local laws.
If any Developer is acting within the scope of his or her employment, as an employee, contractor, or agent of another party, such Developer warrants that such party has full knowledge of his or her actions and has consented thereto, including his or her potential receipt of a prize. Such Developer further warrants that his or her actions do not violate his or her employer’s or entity’s policies and procedures.
Employees of the Sponsors or any person involved in the production, development, implementation or handling of the Challenge (collectively, including the Sponsors, the “Sponsor-Related Parties”), any agents acting for or on behalf of the above entities, their respective parent companies, officers, directors, subsidiaries, affiliates (including, in the case of NFLP, the NFL’s member professional football clubs), licensees, sponsors, service providers or prize suppliers and/or the immediate family (spouse, parents, siblings and children) and household members (whether related or not) of each such employee, are eligible to enter and participate in the Challenge but are not eligible to win any prizes.
(E) Sponsors
The Challenge is sponsored by Skillz, with offices at 303 Second Street, Suite 101, San Francisco, CA 94107 (“Skillz”), and NFL Properties LLC, with offices at 345 Park Avenue, New York, New York 10154 (the “NFL”; together with Skillz, the “Sponsors”).
(F) Agreement to Official Rules.
Each Developer should read these Official Rules carefully before entry to ensure that such Developer understands and agrees. Participation in the Challenge requires each Developer to accept, prior to submission, these Official Rules, which constitutes each Developer’s full and unconditional agreement to and acceptance of these Official Rules and the decisions of the Sponsors, which are final and binding. Winning a prize is contingent upon fulfilling all requirements set forth herein. The Sponsors reserve the right to take any actions necessary to verify a Developer’s compliance with these Official Rules before awarding a prize, including, without limitation, engaging a third party to evaluate the Proposal and/or requiring a Developer to provide evidence of permission to use certain third-party materials. Even though a Developer may be announced as a winner, if any such Developer’s compliance with these Official Rules cannot be verified to the Sponsors’ satisfaction, the Developer will be disqualified, and, time permitting, an alternate winner will be selected.
Finalists/winners are responsible for any federal, state and local taxes and fees associated with receipt or use of a prize.
ADDITIONAL DOCUMENTS / CONSENT: Except where prohibited, in order to advance to certain Stage of the Challenge, Developers may be required to sign and return to the Sponsors, by a deadline to be determined, a declaration of eligibility, liability/publicity release, U.S. tax forms (such as IRS Form W-9 if U.S. resident, IRS Form W-8BEN if foreign resident, or future equivalents), licenses, releases and other agreements required under these Official Rules, and additional documents that may be required by the Sponsor in order to proceed in the Challenge. Failure to return required documents as specified will result in disqualification. The declaration of eligibility, and the acceptance of any prize, will also include consent to use each Developer’s name and likeness for editorial, advertising, and publicity purposes without additional compensation, except where prohibited by law.
(G) Entry Eligibility.
Each Submission must:
- Not contain material that violates or infringes any rights of any other party, including but not limited to copyright, trademark, patent, privacy, publicity or any other intellectual property rights;
- Not disparage any Sponsor or any other person or party;
- Not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous;
- Not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age;
- Comply with any applicable laws or any other regulation, guideline or community standard in entrant’s country of residence and must not contain material that is unlawful, in violation of or contrary to the laws or regulations of entrant’s country of residence or any jurisdiction where the Submission is created;
- If it contains a Pre-Existing Game Mechanic (as defined in Section 3(F)), be sufficiently overhauled to distinguish the Submission from the original game that used such Pre-Existing Game Mechanic, so that the look and feel of the Submission is substantially different than such original game; and
- Not have been developed or created for or on behalf of a client of a Developer and must not have won any kind of award, competition or contest.
EACH DEVELOPER IS RESPONSIBLE FOR DETERMINING THE CORRESPONDING TIME IN HIS, HER OR ITS, AS APPLICABLE, TIME ZONE. SUBMISSIONS ARE VOID IF THEY ARE IN WHOLE OR IN PART ILLEGIBLE, INCOMPLETE, DAMAGED, ALTERED, COUNTERFEIT, OBTAINED THROUGH FRAUD, OR LATE. THE SPONSORS RESERVE THE RIGHT TO DISQUALIFY ANY DEVELOPER WHO MAKES A SUBMISSION THAT DOES NOT MEET THE REQUIREMENTS SET FORTH ON THE CHALLENGE WEBSITE OR IN THESE OFFICIAL RULES.
By entering, each Developer represents and warrants the following with respect to its Submission: (a) the Developer is the sole and exclusive owner of the Submission (including all concepts, materials and/or inventions included therein); (b) the Submission does not violate any (i) of the submission requirements set forth herein, (ii) requirements set forth in the Challenge Website, or (iii) rights of any third parties; (c) to the extent possible under applicable law, no other party can invoke any moral rights in relation to the Submission that have not been duly waived; (d) the Submission and the participation in the Challenge by the Developer do not violate any local, state, provincial, national or foreign law; and (e) the Submission does not contain the confidential information of any third party.
Each Developer acknowledges that other Developers from other entities, teams or companies may have used ideas and/or concepts in their Submission that may be similar in idea or concept to what is included in such Developer’s Submission. Each Developer understands and agrees that it will not have any claim against any other Developers or the Sponsors arising out any such similarity or be entitled to any compensation because of any such similarity.
(H) Joint Review Committee.
A joint review committee shall be comprised of a panel of up to five (5) individuals carefully selected by the Sponsors to participate as judges throughout the Challenge (the “Joint Review Committee”). To ensure independence of the members of the Joint Review Committee, members of the Joint Review Committee may not participate in any review and/or judging of any Developers with which they have a financial or other connection. Members of the Joint Review Committee shall not receive any remuneration as part of their participation in the Challenge.
(I) Judging Criteria.
The Joint Review Committee shall consider, at a minimum, the following:
- For making selections at all stages of the Developer Challenge:
- Whether the Developers have developed a reasonable monetization timeframe;
- Whether the Developers will be able to capitalize on commercial success prospects;
- The strength of the Developer team.
- For selecting the Winning Developers:Whether the mobile games Soft Launched achieved up to 5 KPIs, as determined prior to the Soft Launch, and which may include the following (without limitation):
- D2, D7, D14, D30 retention – D = Day
- DAU – Daily Average Users
- MAU- Monthly Average Users
- Payer Conversion rate
- ARPU – Average Revenue Per User
- ARPPU – Average Revenue Per Paid User
Decisions of Sponsors or the Joint Review Committee (collectively, the “Judging Personnel”) are final and binding on all matters relating to the Challenge. All Developers hereby release the Judging Personnel from any and all liability regarding those decisions. The Judging Personnel reserve the right to select fewer than the stated number of Developers to advance to the next Stages of the Challenge or fewer winners (including by not selecting any advancing Developers or any winners) in the event that an insufficient number of Entries are received that are either eligible or meet the minimum judging criteria.
- For making selections at all stages of the Developer Challenge:
(J) Prizes.
- Each Winning Developer shall receive from Skillz, at a minimum, a $50,000 user acquisition credit, which will be managed by Skillz (the “UA Budget Prize”).
- Each Winning Developer shall be offered the right to negotiate a Sub-license with Skillz.
- Each Winning Developer’s Winning Game will be further promoted by NFLP in a manner at NFLP’s sole discretion.
Section 2.
WINNING DEVELOPER SUB-LICENSES AND LICENSE RESTRICTIONS
(A) In-Development Phases
All Developers that advance past the Initial Developer phase to the Limited Soft Launch are granted a limited, royalty-free, fully paid-up license to use and incorporate the Licensed Marks into the Winning Game until such time as a Winning Developer enters into a Sub-license (or any efforts to enter into such Sub-license are abandoned by either Party). If no Sub-license is executed, then the foregoing sublicenses shall cease upon conclusion of the Challenge. Any use of the Licensed Marks under this sublicense shall be subject to the approval of both Skillz and NFLP and any applicable content and use guidelines as provided by Skillz or NFLP to any Developer.
(B) Expected Terms of the Sub- Licenses.
Each Winning Developer shall be required to enter into a sub-license (each, a “Sub-license”) agreement by and between Skillz, as licensee of NFLP, and the Winning Developer, as sub-licensee of Skillz, the terms of which shall be mutually agreeable between Skillz and the Winning Developer, but shall be expected to include the following:
- Territory: The United States; provided that the Parties shall mutually agree on certain other territories where they may elect to conduct the Soft Launches from among the following countries: Canada, Australia, New Zealand and the United Kingdom. At Skillz’ request, NFLP agrees that it shall discuss in good faith possibly including certain limited Soft Launches in the United States.
- Licensed Marks: The Sub-licenses shall grant the Winning Developers rights, only in connection with the Winning Games, to certain Licensed Marks listed therein.
- Term Length: Three (3) years from the date of execution of such Sub-License.
- Audit: NFLP’s right to audit each Sub-licensee.
- Third Party Beneficiary: NFLP shall be named as a third-party beneficiary under each Sub-license with respect to enforcement of its rights in the Licensed Marks.
For the avoidance of doubt, (i) all NFL Player rights, if relevant based on game mechanic, must be secured separately through the NFL Players Association and are not considered Licensed Marks; and (ii) no Winning Developer shall be permitted to publicly launch a Winning Game in the absence of an executed Sub-License with Skillz.
(C) Right to Vacate Winning Developers.
Developer acknowledges and agrees that, at any Stage, it may be the case that there are no eligible or qualified Developers or mobile games to advance to the subsequent stage. In addition, Skillz may elect to not move forward with the public announcement or public launch of any Finalist, Winning Game and/or a Sub-license in the event that Skillz deems that there is a reasonable reputational risk associated with collaborating with such Developer, including, without limitation, any of the following:
- Engagement by such Developer or any person of authority at such Developer in morally reprehensible conduct;
- Commitment by such Developer or any person of authority at such Developer of any felony; and/or
- Failure by such Developer to maintain sufficient financial resources to reasonably be able to support the Sub-license.
For the avoidance of doubt, Skillz is not obligated to grant any Winning Developer an NFL License to publish its Winning Game if such Winning Developer is unable to meet the requirements set forth in these Official Rules and any subsequent addendum (including without limitation meeting the KPIs or failing to meet the standards of reasonable behavior set forth in this Section).
Section 3.
OWNERSHIP
(A) Winning Game(s) Title.
- Developer acknowledges that NFLP shall have the right to approve (in its sole discretion) the title/branding (each, a “Game Title”) of the Winning Game(s).
- For any Winning Game that has a Pre-existing Game Mechanic (as defined below) with the same or similar (taking into account differences required for such game’s subject matter) Game Title it used in other contexts (e.g., a basketball game using the Pre-existing Game Mechanic), the applicable Developer shall own the Game Title of its Winning Game; provided that if any Licensed Mark is used in the Game Title of a Winning Game with a Pre-existing Game Mechanic, such Developer shall own only the portion of the Game Title of the Winning Game that does not include any Licensed Mark, and any use of the Game Title of the Winning Game without the Licensed Marks following termination of the Sub-license shall be subject to the restrictions on the Winning Game as set forth below (Developer Ownership), as applicable.
- For any Winning Game that does not have a Pre-existing Game Mechanic, (X) if the proposed Game Title includes a Licensed Mark, then NFLP shall own the Game Title of such Winning Game; or (Y) if the proposed Game Title does not include a Licensed Mark, then either (1) NFLP shall reasonably assert that such Game Title is intrinsically tied to the National Football League, in which case if the applicable Developer elects to use such Game Title, then NFLP shall own the Game Title of such Winning Game or (2) NFLP shall not assert that such Game Title is intrinsically tied to the National Football League, in which case the applicable Developer shall own the Game Title of the Winning Game. Pursuant to clause 1, above, the Game Developer shall submit a proposed Game Title to NFLP, and the Parties shall reasonably determine whether such proposed Game Title falls under clause (X), (Y)(1) or (Y)(2) hereof prior to approval, and the Parties shall endeavor to make clear in each Sub-license who owns the Game Title of the Winning Game contemplated in such Sub-license.
(B) NFL Ownership.
NFLP exclusively owns or is the exclusive licensee of the NFL Marks and all copyrights, trademarks and other intellectual property rights in and to them and all derivative works based on any of the NFL Marks, excluding any Skillz Marks or Game Titles (“NFL Derivative Works”) and all copyrights and other intellectual property rights in such NFL Derivative Works. The NFL Marks and NFL Derivative Works are referred to collectively herein as “NFL IP”.
(C) Skillz Ownership.
Skillz exclusively owns or is the exclusive licensee of the Skillz Marks and all copyrights, trademarks and other intellectual property rights in and to them and all derivative works based on any of the Skillz Marks, excluding any NFL Marks or Game Titles (“Skillz Derivative Works”) and all copyrights and other intellectual property rights in such Skillz Derivative Works. The Skillz Marks and Skillz Derivative Works are referred to collectively herein as “Skillz IP”.
(D) Joint Ownership
- Skillz and NFLP shall jointly own worldwide in perpetuity the following materials (“Joint IP”) except for the NFL IP and the Skillz IP, all artwork and/or promotional materials produced under this Agreement or as part of the Challenge (“Artwork”) and all copyrights and other intellectual property rights in such Artwork. Skillz and NFLP may copy, display, publish, perform and use the Artwork during the Challenge solely for the purpose of performing its obligations hereunder; provided that neither Skillz nor NFLP shall use the Artwork or any artwork and/or promotional materials reasonably similar to the Artwork during the Challenge or thereafter in any event or program executed in partnership or collaboration with a third party. Upon expiration or termination of the Challenge, neither Skillz nor NFLP shall use the Artwork without the other’s prior written permission except for archival or historical purposes or in connection with the enforcement of any rights hereunder.
- Skillz and NFLP shall have the right to record any live event or live-streaming event related to the Challenge (any such recording, a “Recording”), and Skillz and NFLP shall jointly own the Recording and shall have the right to use the Recording on their owned and operated websites during the Challenge for promotional and marketing purposes and for five (5) years after the Challenge for historical purposes.
(E) Pre-existing Rights and Rights Outside the Scope of this Agreement.
Each applicable Developer, Skillz and NFLP retains all of its right, title, and interest in intellectual property rights generated outside the scope of the Challenge.
(F) Developer Ownership.
Each Developer shall own the intellectual property rights in its respective games developed in connection with the Challenge in accordance with the Developer Terms of Service, subject to the terms of this Section, which are incorporated in the Official Rules and will be incorporated in the Sub-license, if applicable. With respect to a Winning Game with a game mechanic similar to another game that the same Developer had previously launched and was available to the public (provided that such availability consisted of a significant public launch in a major market for a period of no less than eighteen (18) months) prior to commencement of the Challenge (each, a “Pre-existing Game Mechanic”), upon expiration of the Sub-license, Developer shall remove all use of the Licensed Marks from the Winning Game with the Pre-existing Game Mechanic, and upon such removal Developer shall have the unrestricted right to use, distribute and commercialize such Winning Game in its sole discretion. For a Winning Game that incorporates a new game mechanic that was not available to the public prior to commencement of the Challenge (each, a “New Game Mechanic”), upon expiration of the Sub-license, Developer shall remove all use of the Licensed Marks from such Winning Game, and Developer shall be restricted from using, distributing or commercializing the New Game Mechanic with any professional sports league for a period of twelve (12) months following expiration or termination of the Sub-license (the “Restricted Period”). Upon expiration of the Restricted Period, Developer shall have the unrestricted right to use, distribute and commercialize such Winning Game with the New Game Mechanic in its sole discretion.
(G) Data; Privacy.
The Parties acknowledge that it is difficult to identify specific data elements or analytics for reporting of Winning Game(s) user experience(s) in advance of selection of the Winning Game(s); however, the Parties shall work in good faith to identify the type of data that will be collected and how such data shall be used and/or shared; provided that all such data shall be owned by Skillz, and NFLP shall have limited rights of use as mutually agreed, and provided, further, that such data shall not include any player personal information. The Parties shall cooperate in developing (i) a mechanism within the Winning Games to allow players who play Winning Games to opt-in to receive promotions from NFLP, and (ii) promotions in association with the Winning Games to drive players to NFLP owned and operated websites to enable NFLP to collect player information directly from those players who opt-in to the promotion. Such promotions may include, but are not limited to, offering a participation prize to each player who registers with the NFLP website.
(H) Confidentiality.
Each Developer agrees that it shall (A) use any information received from the Sponsors or their respective affiliates, employees, consultants or agents that is not generally available to the public, including without limitation any NFL brand guidelines and requirements (collectively, “Confidential Information”), solely for the limited purpose of creating a Submission and not for any other purpose, and (B) keep the Confidential Information strictly confidential and not provide or communicate the Confidential Information (or any part thereof) to any other person or entity without the prior written consent of the applicable Sponsor. Upon a Sponsor’s request or upon completion of the Challenge, each Developer shall promptly return (or destroy) the Confidential Information (and all copies, extracts or other reproductions made thereof) to the applicable Sponsor, in the case that Sponsor so requested, or destroy such Confidential Information (at such requesting Sponsor’s option).
Section 4.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
(A) Developer Representations and Warranties.
As of the date of entry and throughout the Developer’s participation in the Developer Challenge, Developer represents and warrants that:
- Developer agrees to be bound by the terms and provisions contained in these Official Rules;
- By clicking, “I accept” Developer has full power and authority to execute, deliver and perform in accordance with the terms of these Official Rules;
- The performance by Developer of its obligations hereunder do not violate or cause a breach of any agreements or obligations to which Developer is bound;
- The proprietary materials and any other content produced or modified by Developer do not and will not violate or infringe or misappropriate the intellectual property rights, right of privacy, right of publicity, civil rights, property, or any other right of any person or entity.
(B) Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SKILLZ MAKES NO WARRANTIES REGARDING THE SUBJECT MATTER OF THESE OFFICIAL RULES OR THE DEVELOPER CHALLENGE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET POSSESSION, OR ANY WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED TO THE EXTENT ALLOWED UNDER APPLICABLE LAW. TO THE EXTENT ANY SUCH WARRANTY MAY NOT BE DISCLAIMED, ANY SUCH WARRANTY IS HEREBY LIMITED TO THE MINIMUM DURATION AND EXTENT ALLOWED UNDER APPLICABLE LAW.
Section 5.
MISCELLANEOUS
(A) General Conditions.
In the event that the operation, security, health and safety or administration of the Challenge is impaired in any way for any reason, including, but not limited to, fraud, virus, other technical problem, pandemic, epidemic or any Federal, state or local government imposed restrictions, limitations or lockdowns, the Sponsors may, in their sole discretion: (a) suspend the Challenge to address the impairment and then resume the Challenge in a manner that best conforms to the spirit of these Official Rules; (b) award the prizes from among the eligible entries received up to the time of the impairment, or (c) cancel the Challenge in its entirety, in which case no prizes will be awarded. The Sponsors reserve the right in their sole discretion to disqualify any individual it finds to be tampering with the entry process or the operation of the Challenge or to be acting in violation of these Official Rules or in an unsportsmanlike or disruptive manner. Any attempt by any person to undermine the legitimate operation of the Challenge may be a violation of criminal and civil law, and, should such an attempt be made, the Sponsors reserve the right to seek damages from any such person to the fullest extent permitted by law. The Sponsors’ failure to enforce any term of these Official Rules will not constitute a waiver of the Sponsors’ right to enforce such term.
(B) Release and Limitation of Liability.
By participating in the Challenge, to the maximum extent permitted by applicable law, each Developer agrees to release and hold harmless the Sponsor-Related Parties (the “Released Parties”) from and against any liability, claims, demands, losses, damages, costs and expenses (including legal fees) arising out of participation in the Challenge or receipt or use of any prize, including, but not limited to: (a) unauthorized human intervention in the Challenge; (b) the processing or judging of applications and/or presentations; (c) technical errors related to computers, servers, websites, providers, or telephone or network lines; (d) printing errors; (e) lost, late, postage-due, misdirected, or undeliverable mail, or any late, lost, damaged, misdirected, incomplete, illegible, undeliverable, or destroyed Submissions or Submission materials due to system errors, failed, incomplete or garbled computer or other telecommunication transmission malfunctions, hardware or software failures of any kind, lost or unavailable network connections, typographical or system/human errors and failures, technical malfunctions of any telephone network or lines, cable connections satellite transmissions, traffic congestion on the internet or on any websites, or any combination thereof, which may limit a Developer’s ability to participate; (f) errors in the administration of the Challenge or the processing of entries, typographical or other error in the printing, offering or announcement of any prizes or winners; (g) injury or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from Developer’s participation in the Challenge or receipt or use of any prize; (h) personal injury, damage or death to persons which may be caused, directly or indirectly, in whole or in part, by Submissions or use thereof; (i) other errors or problems of any kind whether mechanical, human, technical, network or electronic, or errors which may occur in connection with the administration of the Challenge; (j) any Submission or other material uploaded or provided by a Developer that infringes any third party proprietary rights, intellectual property rights, personal or moral rights or any other rights, including without limitation, copyright, trademark, patent, trade secret, privacy, publicity or confidentiality obligations, or defames any person; (k) any non-compliance by such Developer with these Official Rules or any applicable law or regulation; (l) claims brought by persons or entities other than the parties to these Official Rules arising from or related to such Developer’s involvement with the Challenge; or (m) the awarding or announcement of the winners or finalists or in any other Challenge-related materials; or (n) any delay or cancellation of the Challenge pursuant to these Official Rules. To the extent permitted by applicable law, each Developer waives the right to claim any damages whatsoever, including, but not limited to, punitive, consequential, direct, or indirect damages. To the extent permitted by applicable law, each Developer further agrees to defend, indemnify and hold harmless the Released Parties from and against any and all third party claims or causes of action arising out of or in any way related to Developer’s product or service and the Released Parties’ use thereof as authorized herein, including, without limitation, any claims of infringement of intellectual property rights.
THE SPONSOR-RELATED PARTIES SHALL NOT BE LIABLE TO ANY DEVELOPER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THE CHALLENGE OR THESE OFFICIAL RULES. EACH DEVELOPER HEREBY RELEASES AND AGREES TO INDEMNIFY AND HOLD HARMLESS THE SPONSOR-RELATED PARTIES AND THEIR EMPLOYEES, OFFICERS, AFFILIATES, RELATED PARTIES, REPRESENTATIVES, AGENTS, PARTNERS, JUDGES AND ADVERTISING AND PROMOTIONAL AGENCIES FROM ANY AND ALL DAMAGES, INJURIES, CLAIMS, CAUSES OF ACTIONS, LIABILITY OR LOSSES OF ANY KIND (INCLUDING ACTUAL LEGAL FEES AND EXPENSES), KNOWN OR UNKNOWN, ABSOLUTE OR CONTINGENT, NOW OR IN THE FUTURE ARISING FROM OR RELATED TO: (1) HIS, HER, OR ITS (AS APPLICABLE) FAILURE TO COMPLY WITH ANY OF TERMS OF THIS AGREEMENT OR OTHER APPLICABLE RULES; (2) ANY MISREPRESENTATION HE, SHE OR IT (AS APPLICABLE) MAKES TO THE SPONSORS UNDER THIS AGREEMENT OR OTHERWISE; (3) HIS, HER OR ITS (AS APPLICABLE) PARTICIPATION IN THE CHALLENGE; (4) HIS, HER OR ITS (AS APPLICABLE) RECEIPT, USE OR REDEMPTION OF ANY PRIZE, OR THE INABILITY TO RECEIVE, USE OR REDEEM ANY PRIZE; (5) A CLAIM BY A THIRD PARTY THAT THE PRESENTATION, OR ANY SERVICES OR PRODUCTS DISCUSSED IN THE PRESENTATION, OR ANY OTHER MATERIALS OF ANY NATURE FURNISHED BY IT, HIM OR HER (AS APPLICABLE), INFRINGES (WHETHER DIRECTLY, CONTRIBUTORILY, OR OTHERWISE), MISAPPROPRIATES OR VIOLATES SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; (6) A CLAIM BY A THIRD PARTY RELATED TO THE THIRD-PARTY’S USE OF DEVELOPER’S SUBMISSION. THE SPONSOR-RELATED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE INFORMATION PROVIDED TO THE DEVELOPER IN CONNECTION WITH THE CHALLENGE AND EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE CHALLENGE. IN NO EVENT SHALL THE SPONSOR AFFILIATES BE LIABLE FOR ANY DAMAGES (INCLUDING WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS OR ANY OTHER DAMAGES) RESULTING FROM THE USE OF ANY INFORMATION PROVIDED IN CONNECTION WITH THE CHALLENGE.
(C) Arbitration.
Except where prohibited by law, as a condition of participating in the Challenge, each Developer agrees that (A) any and all disputes and causes of action arising out of or connected with the Challenge, or any prizes awarded, will be resolved individually, without resort to any form of class action, and exclusively by final and binding arbitration under the rules of the American Arbitration Association and held at the AAA regional office nearest the Developer’s principal business location; (B) the Federal Arbitration Act will govern the interpretation, enforcement and all proceedings at such arbitration; and (C) judgment upon such arbitration award may be entered in any court having jurisdiction. Under no circumstances will Developer be permitted to obtain awards for, and Developer hereby waives all rights to claim, punitive, incidental or consequential damages, or any other damages, including attorneys’ fees, other than Developer’s actual out-of-pocket expenses (i.e., costs associated with participating in the Challenge), and Developer further waives all rights to have damages multiplied or increased.
(D) Choice of Law.
Except where prohibited by law, all issues and questions concerning the construction, validity, interpretation and enforceability of these Official Rules, or the rights and obligations of Developer and the Sponsors in connection with the Challenge, will be governed by, and construed in accordance with, the substantive laws of the State of New York, USA. To the extent necessary to enforce the arbitration provision in Section 14 above or if such arbitration provision is not enforceable for any reason, except where prohibited by law, the Developer hereby irrevocably and unconditionally (X) submits to the exclusive jurisdiction of the appropriate federal or state court located in the State of New York, New York County, and any appellate court thereof; and (Y) agrees that all claims will be heard and determined in such court.
(E) Personal Information & Privacy:
Each Developer acknowledges and agrees that such Developer’s name and contact information (and that of any individuals submitting on behalf of such Developer) (together with the Developer, “Participating Persons”) shall be collected upon registration for the Challenge. The Sponsors may use or disclose this information and any other information contained in the Submission (A) to their affiliates, (B) as may be required to conduct and manage the Challenge, including to confirm the eligibility of a Developer and communicate with such Participating Persons, (C) to contact such Participating Persons via email for promotional purposes related to the operation of this or future competitions, and (D) to exercise the Sponsors’ rights under these Official Rules, including any further contact of the Participating Persons in connection with any commercial use of the subject of the Submission.
All data provided by Participating Persons must be accurate. Participating Persons are informed that the personal data collected in connection with the Challenge will be collected by the Sponsors’ servers and computer systems which are based in United States and such collection will therefore be subject to applicable United States laws. As such, Participating Persons are informed that their personal data may be transferred outside of their eligible jurisdiction (including without limitation by being transferred, stored and processed outside the European Union if a Participating Persons is a resident of the European Union) and Participating Persons’ personal data may not be subject to the same requirements or restrictions relating to such personal information as may exist in the country in which it was collected. Upon request, a Participating Person will be provided with access to such Participating Person’s personal data. Participating Persons also have a right to oppose the collection, storage and use of such personal data under certain circumstances. Participating Persons may exercise such right by writing to the Support@Skillz.com. If any Participating Person is not satisfied with how the Sponsors addressed his or her complaint, such Participating Person may be able to raise the matter with a competent regulatory authority.
Participating Persons may also withdraw their personal data upon request; however, each requesting Participating Person will be disqualified (or such Participating Person’s Developer entity) as an entrant in the Challenge prior to the determination and fulfillment of the prizes.
Section 6.
DEFINITIONS
Unless defined elsewhere in the body of this Agreement, the capitalized terms used herein shall have the following meanings:
“Applicable Privacy and Data Security Laws”: All data privacy, data security and data protection, advertising and marketing laws of any applicable jurisdiction (including the U.S. and each state of the U.S. in which the Challenge is operated).
“Confidential Information”: (a) The terms of this Agreement, (b) the discussions and negotiations between the Parties in connection with this Agreement, (c) all Developer proposals received and reviewed pursuant to this Agreement, including applicable game mechanics submitted with the Developer proposals, and (d) all information concerning the business or operations of each Party to which the other Party (or any of its related entity affiliates) is provided access by virtue of this Agreement or the relationship of the Parties. Confidential Information shall not include information that: (i) is or becomes generally known to the public through no fault of the receiving Party; (ii) is lawfully obtained by the receiving Party from a third party not under an obligation to keep the information confidential; (iii) was known by or in the possession of the receiving Party before being disclosed by the disclosing Party; or (iv) is independently developed by the receiving Party without reference to or use of any of the disclosing Party’s Confidential Information.
“Licensed Marks”: The NFL Licensed Marks and the Skillz Marks.
“NFL Entities”: NFLP, the NFL, NFL Enterprises LLC, NFL Productions LLC, NFL International LLC, the Member Clubs, NFL Ventures, Inc., NFL Ventures, L.P., National Football League Foundation and each of their respective Affiliates, shareholders, officers, directors, agents, representatives and employees, collectively.
Capitalized terms used in, or related to, the definition of NFL Entities:
- “NFL”: The National Football League, a New York unincorporated association.
- “Member Clubs” or “Teams”: The thirty-two professional football teams that comprise the NFL and such other professional football teams in the United States that become a member of the NFL after the Effective Date.
- “NFL Marks”: The trademarks, service marks, trade names, domain names, trade dress and all other names, symbols, emblems, designs and colors of the NFL and its Member Clubs, including all League Marks, Team Marks, and Historic Marks.
Capitalized terms used in, or related to, the definition of NFL Marks:
- “Historic Marks”: The trademarks, logos, uniform designs and other indicia historically used by current and former NFL Teams, as well as League Marks created by NFLP or any other NFL Entity to celebrate the history of the NFL, as listed on the “Historic Marks” section on NFL.biz and such other Historic Marks as approved in advance, in writing, by NFLP in its sole and absolute discretion.
- “League Marks”: “National Football League”, “NFL”, the NFL Shield design, “National Football Conference”, “American Football Conference”, “NFC”, “AFC”, “Super Bowl”, “Pro Bowl”, and other identifying symbols, slogans and indicia adopted for commercial purposes by the NFL.
- “NFL Licensed Marks”: All League Marks and Team Marks.
- “Team Marks”: The full team names, nicknames, helmet designs, uniform designs, logos, slogans and other identifying symbols and indicia presently adopted for commercial purposes by the Member Clubs and specifically excluding Historic Marks.
- “Person:” means any individual, corporation, partnership, limited liability company, joint venture, estate, trust, association, organization, governmental authority or other entity.
- “Skillz Marks”: The names, symbol, design, slogans and trademarks of Skillz, including, without limitation, “Skillz”, “Embrace Your Inner Champion”, “”Esports for Everyone”, “”It’s More than a Game”, “Gaming for Good”, “Powered by Skillz” and other identifying symbols, slogans and indicia adopted for commercial purposes by Skillz.
NFL Prohibited Advertising Categories
(Note that examples listed within specific categories are provided for illustrative purposes only.)
- Contraceptives (e.g., condoms), except to the extent otherwise expressly permitted under the pharmaceutical category.
- Dietary and/or nutritional supplements (in any form, including without limitation beverages (e.g., products commonly known as “energy drinks”), pills, powders, bars, transdermal patches, etc.), products that contain ingredients other than vitamins and minerals for which the FDA has established recommended daily intakes, or any substance prohibited pursuant to League policies. Health and nutrition stores are permitted, provided such ads do not reference any of the foregoing prohibited categories. “Energy drinks” that are regulated by the FDA as food and beverage products – not as dietary or nutritional supplements – are also permitted, provided the advertisements for such products comply with the NFL’s Advertising Content Regulations.
- Establishments that feature nude or semi-nude performers.
- Firearms, ammunition or other weapons; however, stores that sell firearms and ammunitions (e.g., outdoor stores and camping stores) will be permitted, provided they sell other products and the ads do not mention firearms, ammunition or other weapons.
- Fireworks.
- Sportsbooks, sports betting, sports betting brands, sports betting-related services, and any entity or brand for which the majority of its U.S. gross revenues or operating profit in any of the last three years is attributable to sports betting-related services.
- Illegal products or services.
- Movies, video games and other media that contain or promote objectionable material or subject matter (e.g., overtly sexual or excessively violent material), as determined by the NFL.
- Restorative or enhancement products (e.g., “male enhancement” products), except to the extent otherwise expressly permitted under the pharmaceutical category.
- Sexual materials or services (e.g., pornography or escort services).
- Social cause/issue advocacy advertising, unless otherwise approved in advance by the NFL. (If approved, only traditional advertising (i.e., discrete units airing during commercial breaks, rather than segment sponsorships or media enhancements) will be permitted.)
- Tobacco products (e.g., cigarettes, e-cigarettes, cigars, pipe tobacco, chewing tobacco and snuff).
- Cannabis, other products containing cannabinoids, and products related to the production or ingestion of such products.
- Advertisements for medical devices and prescription pharmaceutical products, unless otherwise approved in advance by the NFL or as set forth below. (If approved, only traditional advertising will be permitted.)
- Advertising for prescription medications is currently permitted in the following categories only (categories subject to change at any time in the NFL’s sole discretion):
- Aesthetic Products (e.g., Botox, Latisse)
- Analgesics (Non-Opioid Only) (e.g., Celebrex, Mobic)
- Antibacterials (e.g., Zithromax, Levaquin)
- Anticoagulants/Platlet Modifying Agents (e.g., Pradaxa, Plavix)
- Anticonvulsants/antiepilepsy (e.g., Neurontin)
- Antidementia / Alzheimer’s Agents (e.g., Aricept)
- Antidepressants / Anxiolytics (e.g., Cymbalta, Lexapro, Zoloft)
- Antifungals (e.g., Diflucan)
- Antigout Agents (e.g., Zyloprim)
- Anti-Insomnia Agents (e.g., Lunesta, Ambien)
- Anti-Inflammatory Agents (Non-Steroidal Only) (e.g., Deltasone)
- Anti-Migraine Agents (e.g., Topamax, Treximet)
- Antineoplastics/Oncology Agents (e.g., Rituxan, Gleevec)
- Antiparasitics (e.g., Malarone, Stromectol)
- Anti-Parkinson / Movement Disorder Agents (e.g., Requip, Mirapex)
- Antispasticity Agents (e.g., Zanaflex)
- Antivirals (e.g., Kaletra, Zovirax, Tamiflu)
- Blood Glucose Regulators / Diabetes Medications (e.g., Januvia)
- Cardiovascular Agents (including Cholesterol Reducing) (e.g., Lipitor, Cestor, Norvasc)
- Dental and Oral Agents (e.g., Aphthasol)
- Dermatological Agents (e.g., Taclonex)
- Gastrointestinal Agents (including Inflammatory Bowel Disease Agents) (e.g., Nexium, Asacol)
- Genitourinary Agents (including Erectile Dysfunction and Prostate Medications) (e.g., Flomax, Viagra)
- Hair Renewal and Growth (e.g., Propecia)
- HIV medications (e.g., Dovato)
- Immune Suppressants / Immunomodulators (e.g., Humira, Orencia, Enbrel)
- Metabolic Bone Disease Agents (including Anti-Osteoporosis Agents) (e.g., Boniva)
- Multiple Sclerosis Agents (E.g., Betaseron, Ampyra)
- Ophthalmic Agents (e.g., Restasis)
- Oral Contraceptives (e.g., Loestrin 24)
- Otic Agents (e.g., Auralgan)
- Pancreatic Enzyme Replacement Agents (e.g., ZenPep)
- Respiratory Tract Agents (Allergy and Asthma Medications) (e.g., Advair, Spiriva, Pulmicort)
- Smoking Cessation Products (e.g., Chantix), but specifically not including “electronic cigarettes”
- Vaccines (e.g., Gardasil, Fluvirin, Zostavax)
- Advertising for medical devices is currently permitted in the following categories only (categories subject to change at any time in the NFL’s sole discretion):
- Aesthetics (e.g., dermal fillers for facial wrinkles)
- Cardiovascular (e.g., coronary stents)
- Dental (e.g., dental implants)
- Drug Delivery Devices (e.g., diabetes pumps)
- Ear, Nose, and Throat (e.g., sleep disorder breathing products, hearing aids)
- Ophthalmic (e.g., intraocular lenses for cataracts)
- Orthopedic (e.g., knee/hip replacements)
- Advertising for prescription medications is currently permitted in the following categories only (categories subject to change at any time in the NFL’s sole discretion):
- Any advertisement that does not comply with the NFL’s Advertising Content Regulations.
NFL Advertising Content Regulations
Any advertisement not in compliance with the following guidelines will be deemed prohibited advertising under this agreement.
All advertisements must:
- Comply with all applicable broadcast standards and regulations;
- Be of suitable artistic and technical quality;
- Include responsibility messaging, and not be targeted at minors, if advertising alcohol or gambling;
- Not violate any rights of any person, firm or corporation;
- Not contain any false, unsubstantiated or unwarranted claims for any product or service, or testimonials that cannot be authenticated;
- If advertising “energy drinks”:
- Be a traditional advertisement or billboard only (i.e., no sponsorships);
- Not be from a company that manufactures products containing substances prohibited pursuant to League policies;
- Not claim or imply that the product enhances athletic performance, or promote, depict or imply the mixing of “energy drinks” with alcohol;
- Not be targeted at minors; and
- Be approved in advance by the NFL;
- Not be in whole or part defamatory, obscene, profane, vulgar, repulsive or offensive, either in theme or in treatment, or describe or depict repellently any internal bodily functions or symptomatic results of internal conditions, or refer to matters generally considered socially unacceptable;
- Not contain any false or ambiguous statements or representations that may be misleading to the audience;
- Not include any element of intellectual property without the owner’s consent to such use, including but not limited to music master, mechanical, performance and synchronization rights, or give rise to any other colorable claim of infringement, misappropriation or other form of unfair competition;
- Not be libelous or disparage competitors or competitive products;
- Not be injurious or prejudicial to the interests of the public, the NFL, its member clubs or honest advertising and reputable business in general; and
- Not make any appeal for funds or consist of, in whole or in part, political advocacy (unless otherwise approved by the NFL).
IF ONE OR MORE PROVISIONS OF THESE OFFICIAL RULES ARE BE FOUND INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THESE OFFICIAL RULES WILL NOT BE AFFECTED IN ANY WAY THEREBY.
IN THE EVENT THERE IS A DISCREPANCY OR INCONSISTENCY BETWEEN DISCLOSURES OR OTHER STATEMENTS CONTAINED IN ANY CHALLENGE MATERIALS AND THESE OFFICIAL RULES OR THE DEVELOPER TERMS OF SERVICE, THESE OFFICIAL RULES WILL PREVAIL, GOVERN AND CONTROL, FOLLOWED BY THE DEVELOPER TERMS OF SERVICE.