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[Craig Stern]

Anyone had any dealings with Kongegate and their Premium Games program? (I'm looking at you, torncanvas!)

Personally, I've refused to deal with Kongregate in the past because of a really, really sneaky term they put in their contracts: a $5 limitation of liability clause. Translation: Kongregate can take your game, pay you nothing, and if you sue them and win, you are entitled to recover only five dollars.

Limitation of liability provisions are generally considered valid in California, which can be a real problem if Kongregate ever fails to deliver for a developer, since their contracts also provide that they are governed by California law.

[Eclipse]

I'm flattered that someone would think to bring my lil' ol' company up. But I'm sad that it's in a negative way.

I don't know how other companies interface with the press (enthusiast, bloggers and otherwise) because I'm not really privy to that, but I do at least know what goes on behind our doors.

Suffice it to say that we don't make the details of our business relationships with other companies public - that's bad form in my opinion - and that seems to be something people like to hear about.

As it is, the best way to find out the truth about something, speaking as a former journalist, is to ask people. To date, the only press groups who've ever contacted us on anything were Play Magazine and Kotaku.

I'll be the first to admit we've made some missteps in the past as we learn better and better practices. I started the business seven years ago in my college dorm room with a friend, to be a developer ourselves, before realizing we could try to help other developers along the way and trying to expand what we wanted to do. But the outright IRE that floats around, I'll be honest, I think it's a little unwarranted and it gets under my skin a little.

Anyway, I don't want to look like I troll boards looking for our company name. I just read TIGsource because I've found out about some great, fun games on there and wanted to check out the community forum. Funny this is the first thread I read. =)

Well. I don't want to force a welcome here, it'd probably just be dodgy so I'll bow out and let y'all say what you will. Maybe you'll see things that'll change your mind in the future.

Best regards,
Cristopher Boyer
CEO, Variant Co.

I think your project and your point of view are really interesting, and i think also that direct replying on a forum such TIGsource is not trolling but taking care about the indie scene, so welcome here

[DaveGilbert]

Are we mixing up publishers and distributors?   My experience is limited but here's my list:

Distributors
------------

Big Fish Games - as said earlier, if your game fits their market you've got to get your game on their site.  They are personable, friendly, know their audience, and gives a serious marketing push to every game on their site.  Heck, they even make video trailers of the game for you, which no other distributor has ever done for me.  The only problem with BFG is the sheer number of games they have available.  Your game might drop off the radar quickly, but it will get a massive amount of exposure while its there.

Playfirst - had no problems with these guys.  They are primarily a publisher, but they do distribution in order to bring folks to their site.  If they like your game they will put it on the front page and make it a "sneak peek" along with their cataloged titles. 

iWin - my game was a bit of a hard sell but they took it eventually!  A solid distributor.  As with all distributor, they will put extra effort into pushing it if they really like it.  My game did pretty well with them.

Publishers
----------

As for publishing, I currently have a publishing deal with Playfirst and they have been great!  Aside from the occasional nitpick, they pretty much stay out of my way and give me all the creative freedom I want (within reason).  There were a few concession to make in order to simplify my type of game (point and click adventure) for the casual audience, but for the most part I have no complaints.  If Playfirst approaches you with a publishing deal, I say take it.

[blah3]

Personally, I've refused to deal with Kongregate in the past because of a really, really sneaky term they put in their contracts: a $5 limitation of liability clause. Translation: Kongregate can take your game, pay you nothing, and if you sue them and win, you are entitled to recover only five dollars.

Is that really what it means? I thought it limited their liability for illegal acts you committed against 3rd parties who then tried to sue THEM as the publisher of the illegal act (libel, copyright infringement, hate speech, etc) - forcing you to take on legal liability for those things, even though technically in law the "publisher" of literature, speech, etc is the primary target of litigation. This being a standard procedure by publishers, otherwise you could bankrupt any one of them by publishing something with them which was viciously libellous, and watch them get sued into oblivion.

I'm not a CA resident, and I've been amazed in the past by some of the weird pieces of law CA has, so I guess it's possible, but ... it seems it would be impossible to do any kind of business with anyone - ever - if people could just put "oh, and I am legally immune to being sued for breaking the law" in every contract they wrote. That's ... hard ... to believe.

[Craig Stern]

Nope--that's the indemnification clause you're thinking of (Provision 6). Look at Provision 8 in their Game License Uploading Agreement:

8.  Limitation of Liablity.  KONGREGATE SHALL NOT BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR IN ANY OTHER FORM OF ACTION, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE OR FAILURE TO PERFORM HEREUNDER.  IN NO EVENT SHALL KONGREGATE'S LIABILITY TO DEVELOPER FOR DAMAGES EXCEED $5.00 USD.

Actually, now that I look at it again, this reads like both an exculpatory clause and a limitation of liability clause wrapped into one. First they say they won't be liable to you for breaching the agreement, and then they say that even if they are, they won't be obligated to pay you more than $5.

The California courts have upheld limitation of liability provisions in the past, but so far as I know, never a limitation this low, and never outside the context of construction contracts. My unlicensed, unprofessional opinion (which you should definitely not rely upon) is that the courts could go either way with a provision like this.

When I was looking for a sponsor for Telepath RPG Chapter 2, I negotiated with Kongregate and attempted to get them to waive this provision. It went all the way up the chain to Emily Greer, who ultimately refused to waive it. This convinced me to go with a different company for sponsorship. My feeling is, regardless of whether it would ever be enforced in court, why would I ever want to deal with a company that knowingly buries a provision like this in its boilerplate game upload agreement?

[mitridas]

Anything about Majesco??