Online Distribution Terms

GREEN MAN GAMING DIGITAL DISTRIBUTION ONLINE TERMS AND CONDITIONS

“Terms”

UPDATED: 21st July 2016

These online terms and conditions, as amended from time to time, govern the relationship between you (the “Licensor”) and Green Man Gaming Limited (“Green Man Gaming”) for the distribution of games and other products by Green Man Gaming.

These Terms, as well as the distribution letter (“Commercial Schedule”) sent by Green Man Gaming to you the Licensor form a legally binding contract between you and Green Man Gaming.  You agree that you are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in these Terms, and to abide and comply with these Terms.

In the event of any inconsistency between these Terms and the Commercial Schedule the terms of the Commercial Schedule shall prevail.

You agree to check these Terms periodically for updates, amendments or new information and terms that govern your use of the Green Man Gaming Services.  Green Man Gaming may modify the Terms of Service at any time.  Revisions to terms shall be effective thirty (30) days after posting at greenmangaming.com/onlinedistributionterms.

(A) Green Man Gaming owns and operates the web site and ecommerce and digital distribution platform available at www.greenmangaming.com.

(B) Licensor is involved in the development/publishing/distribution of certain products including computer games and wishes to make these products which it has rights in or to available to Green Man Gaming to distribute.

(C) Green Man Gaming wishes to distribute certain products of the Licensor in accordance with the terms of the Agreement.

(D) Green Man Gaming and Licensor have set out the details of the products and services in the Commercial Schedule and these Terms and the Commercial Schedule together form the Agreement.


 1. Definition of Terms

The following terms have the following meanings in these Terms and the Commercial Schedule:

“Agreement”

means these Terms and the Commercial Schedule together;

“Contribution”

means the payments and/or services described in the Commercial Schedule;

“Commercial Schedule”

means the schedule of commercial terms to which the Agreement applies as set out in the Commercial Schedule;

“Deductions”

means costs incurred by Green Man Gaming to Sell a Game as set out in the Commercial Schedule;

“EULA”

means the terms and conditions applicable to Selling of a Game by Green Man Gaming and the use of the Game and Service by end users, available at http://www.greenmangaming.com/terms-and-conditions;

“Game”

means the computer game and/or other products described in the this Commercial Schedule in object code executable form, together with the Game Materials;

“Game Materials”

means the trade marks and trade names associated with the Game; such marketing and promotional materials related to the Game as are supplied by Licensor; and such updates, patches and error corrections as Licensor supplies;

“Green Man Gaming Materials”

means the materials provided by Green Man Gaming as described in the Commercial Schedule;

“Intellectual Property Rights”

means copyright, design rights, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets, logos and devices, trade and service marks (whether registered or unregistered) and any applications therefore and all rights in confidential information;

“Net Revenues”

means the total sums actually received by Green Man Gaming in respect of the Selling of the Game LESS Deductions agreed in the Commercial Schedule in cleared non-refundable or repayable funds.

“Sell”

means use, copy, reproduce, market, advertise, promote, distribute, sell, licence, sub-licence, disseminate, diffuse, perform, display, exhibit, show, play, issue to the public, and otherwise exploit by way of digital download or other remote electronic delivery method through the Service;

“Selling Price”

means the price listed or advertised by Green Man Gaming at the point of purchase

“Revenue Share”

means the share of Net Revenues described in the Commercial Schedule.

“Service”

means the digital distribution service operated by Green Man Gaming including the use of the URL www.greenmangaming.com and such other URLs as it shall from time to time determine and including without limitation any and all white label, branded and affiliated versions thereof, in each case through which the Game and other products may be stored on a server owned, leased or controlled by Green Man Gaming and distributed digitally or through other remote electronic means to third parties for consumption;

“Term”

means the term described in the Commercial Schedule;

“Territory”

means the territory described in the Commercial Schedule;

“Wholesale Price"

means the amounts set out in the Commercial Schedule for which Green Man Gaming shall pay the Licensor for a unit of a Game in respect of the Selling of the Game LESS Deductions agreed in the Commercial Schedule in cleared non-refundable or repayable funds. Wholesale Prices listed in the Agreement shall be exclusive of sales tax and other relevant taxes such custom duties;


2. Grant of Rights

(a) Licensor hereby grants to Green Man Gaming a non-exclusive, right and licence to Sell the Game for the Term in the Territory and use the Game all Game Materials in connection therewith.

(b) Subject to the rights and licences granted hereunder and save for the Green Man Gaming Materials, all Intellectual Property Rights in the Game shall belong to and vest in Licensor.

(c) All Intellectual Property Rights in the Green Man Gaming Materials shall belong to and vest in Green Man Gaming.


3. Delivery

(a) Licensor shall promptly deliver to Green Man Gaming the required number of Game keys as reasonably requested. Where early access, beta keys or DLC for the Game are available, the Licensor will also make such products available for Green Man Gaming to distribute.

(b) If specified in the applicable Commercial Schedule, Licensor shall incorporate the Green Man Gaming Materials (if any) into the Game as reasonably required by Green Man Gaming and Green Man Gaming hereby grants to Licensor a non-exclusive, royalty free, right and licence to include the Green Man Gaming Materials in the Game for such purpose only.

(c) Licensor shall deliver to Green Man Gaming such Game Materials for use with the Game and it’s Selling as shall be reasonably required and / or are otherwise made available by Licensor to any third party. All Game Materials, including without limitation any updates, patches and error corrections, shall be subject to the same warranties and representations as are given in respect of the Game.

(d) Licensor will supply all information and documentation reasonably necessary to enable Green Man Gaming to Sell the Game under the Agreement.

(e) Licensor will use all reasonable efforts to protect and enforce its Intellectual Property Rights against third parties infringing the same and to combat piracy.

(f) Green Man Gaming shall not be required to formally approve or evaluate the Game but in the event that Green Man Gaming determines that the Game is not suitable for Selling it shall be entitled to request such reasonable changes as shall make it so suitable. If Licensor does not implement such changes to Green Man Gaming’s satisfaction, Green Man Gaming shall be entitled to terminate the Agreement on giving Licensor immediate written notice. 


 4. Selling and Contribution

(a) Licensor agrees and acknowledges that Green Man Gaming shall be entitled to sell the Game.

(b) Green Man Gaming shall provide the Contribution and be responsible for Selling the Game in the Territory including without limitation (whether by itself or third parties) the hosting, download and distribution of copies of the Game and the creation and dissemination of such marketing, advertising and promotional material as it deems proper.

(c) In connection with the provision of the Contribution the Licensor shall provide Green Man Gaming with all such materials as it reasonably requires, including without limitation and, to the fullest extent applicable marketing materials, art assets, screen shots and demonstration versions and Green Man Gaming shall have a non-exclusive right and licence to use such materials for all purposes connected with the provision of the Contribution and the Selling of the Game.

(d) Licensor shall co-operate fully with Green Man Gaming and provide all such assistance as Green Man Gaming shall reasonably require.


5. Support

(a) Licensor shall be responsible for all technical support in connection with the use of the Game and agrees to provide or arrange for reasonable and satisfactory technical and customer support to consumers in connection with it. Licensor will provide such support with reasonable skill and care and will include within the Game in a reasonable location such contact details as are reasonably required for such purpose.


 6. Payment and Revenue Share

(a) Green Man Gaming will pay to Licensor the amount set out in the Commercial Schedule as appropriate.

(b) Green Man Gaming shall be entitled to retain amounts set out in the Schedules as appropriate

(c) Revenue Share or Wholesale Price due will be calculated monthly at the end of each calendar month (“Month”) and provided to the Licensor within 30 days of the Month end. Payment frequency and method are specified in the Commercial Schedule.

(d) In the event that the amount due for any Month or Months is less than £500 in aggregate, Green Man Gaming shall not be required to make such payment and may carry such amount over to subsequent Months until the aggregate sum due and payable is greater than £500.

(e) No amount shall be due to Licensor in respect of any use of the Game for promotional or testing purposes by Green Man Gaming, its agents, distributors or licensees save that Green Man Gaming shall not use more than the permitted numbers of promotional and testing copies of the Game set out in the Commercial Schedule.

(f) All payments shall be made in the three major currencies (USD, EUR and GBP) which Green Man Gaming receives from its customers from the sale of the Game unless otherwise agreed in the Commercial Schedule. All sums are expressed to be exclusive of Value Added Tax or any other applicable sales tax or duties. Green Man Gaming may withhold tax where required by applicable law and in such cases, shall furnish to the Licensor evidence of withheld amounts being paid to the appropriate authorities.

(g) With each payment Green Man Gaming will provide Licensor with a statement which contains such information as shall be reasonably necessary for Licensor to ascertain the sums due to it, the currency paid for the Games and recording the calculation of the amount due including without limitation the revenue earned from and quantity of sales of the Game.

(i) Green Man Gaming shall keep full and proper books of account relating to the sales of the Game and the amounts payable under the Agreement. During the course of the Agreement the Licensor may at their own cost, during normal business hours, on reasonable notice and no more than once per year, conduct an inspection of the relevant records to verify the accuracy of the payments due and paid under the Agreement, provided that it shall not unduly or unreasonably interfere with the ordinary business of Green Man Gaming. In the event that any such inspection shall reveal a shortfall in the amounts paid from that payable under the Agreement Green Man Gaming shall immediately make up the shortfall.


7. Confidentiality

(a) Each party undertakes with the other that it shall keep and it shall procure that its respective officers and employees keep secret and confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of discussions leading up to or the entering into or performance of the Agreement (the ‘Information’) and use such only for the purposes of the Agreement and shall not use or disclose the same or any part of it other than for the performance of the Agreement. This clause 7 shall not apply to any information which the other party (as the case may be) can prove to have been lawfully in its possession at the date of receipt or which is or becomes public knowledge otherwise than through a breach of any obligation of confidentiality owed to the party communicating such information to the other, or which must be disclosed as part of the Selling of the Game or under a legal obligation. 


 8. User Data

(a) Green Man Gaming shall be entitled to collect aggregated or personally identifiable data concerning the use of the Game and end users of it in connection with the Selling thereof and such collection shall be in accordance with its then current privacy and data policy and applicable data protection regulations.

(b) Green Man Gaming shall retain all right, title and interest in such data. 


 9. Warranties, Indemnity and Liability

(a) Licensor warrants, represents and undertakes to Green Man Gaming that:

i. the Game shall be of sound workmanship and free of all material bugs, errors or defects and is of and will be of satisfactory quality having regard to the applicable stage of development;

ii. it is the owner or authorised licensee (with right to sub-licensee) of the Game and all Intellectual Property Rights therein;

iii. it has full power to enter into the Agreement and is entitled to grant the rights and licences contained in it and has all requisite consents, licences and / or assignments necessary to do so;

iv. the Game is an original work and is not copied wholly or substantially from any other work or material;

v. the Game will not contain or require for proper use any third party materials which licensee does not have a valid and fully paid up licence to use and sub-licence hereunder;

vi. the Game does not and its use by Green Man Gaming will not infringe any Intellectual Property Right or other rights of any person and no exercise of the rights granted hereunder shall do so;

vii. it shall not dispose of any right, title or interest in or to the Game or Intellectual Property Rights in it, or otherwise deal with the same, in any way that is inconsistent with the terms of the Agreement;

viii. the Game does not contain any material which is obscene, offensive, racist, sexist or that may otherwise create any liability for Green Man Gaming nor any virus, Trojan horses or any other malicious software;

ix. the Game will operate substantially in accordance with any applicable specification or documentation supplied to and accepted by Green Man Gaming;

x. it shall comply in all respects with any and all applicable laws, rules and regulations and all terms, conditions, guidelines and requirements of the owner and controller or the applicable platform for or through which the Game is to be Sold.

(b) Green Man Gaming warrants, represents and undertakes as follows to Licensor:

i. Green Man Gaming has the right and power to enter into and fully perform all of its obligations under the Agreement;

ii. subject to the Game or Game Materials provided to Green Man Gaming by Licensor Green Man Gaming owns or otherwise has the right to use, operate and/or license the necessary Intellectual Property Rights and any other materials and methodologies necessary or desirable for it to provide the Service and to carry out its obligations hereunder;

iii. the Service shall be provided by Green Man Gaming in compliance with all relevant legislation, regulations and other mandatory requirements of the UK Government and any of its agencies or agencies that apply to Green Man Gaming;

iv. Green Man Gaming warrants and represents that it shall bear and pay any and all taxes, duties and customs of due from it, levied and based in the appropriate Territory upon the performance of the Agreement. Green Man Gaming may however withhold tax where required by applicable law and in such cases, shall furnish to the Licensor evidence of withheld amounts being paid to the appropriate authorities.

v. Green Man Gaming shall not exploit any Game or Game Materials nor shall it authorise or permit any third party to exploit any Game or Game Materials in a manner which is inconsistent with the terms of the Agreement.

(c) Each party will at all times indemnify and hold harmless the other party and its affiliates (and their respective employees, officers and directors) from and against any and all third party claims and related damages, liabilities, costs and expenses, including legal expenses and reasonable counsel fees, arising out of any breach of any warranty or representation made in the Agreement.  Each party (A) will notify the other party (B) of any action commenced on such a claim and party B may participate in the defence of any such claim through counsel of its selection at its own expense, but party A will have the right at all times, in its sole discretion, to retain or resume control of the conduct of the defence. Neither party shall settle or compromise such claim without the prior written consent of the other such, such consent not to be unreasonably withheld or delayed.

(d) Except as expressly provided by the Agreement each party excludes all conditions, warranties and terms and undertakings express or implied statutory or otherwise in respect of the Game, its Selling and the Service and shall not be liable for any loss of profit, goodwill or any type of special, indirect or consequential loss even if such loss was reasonably foreseeable or a party had been advised of the possibility of Licensor incurring the same.


 10. Duration and Termination

(a) The Agreement shall continue for the Term unless terminated:

i. forthwith by either party in the event that the other commits a material breach of the Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 28 days;

ii. forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with its creditors or if the other shall be unable to pay its debts;

iii. by either party on giving 60 day’s written notice, for its own convenience, at its own discretion and without any obligation to compensate Licensor other than to make payment of the amounts owed to the Licensor.

(b) Termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities.

(c) Following termination of the Agreement for any reason all licenses granted to end users and all sales made to end users shall remain valid and Green Man Gaming shall have the right to fulfill any such orders and additionally be entitled to supply end users whom have obtained a copy of the Game hereunder with a replacement if necessary;

(d) In the event of any breach or any claim of any breach of any warranty given by Licensor hereunder, Green Man Gaming shall be entitled (but not obligated) to suspend Selling the Game.


 11. Force majeure

(a) In the event of a party failing to perform any obligation under the Agreement (save the making of any payment due under or pursuant to the Agreement) as a result of strike, lock-out or other labour difficulties, fire, flood, act of God, embargo, act of war, regulation or restriction of government or law or any other occurrence of circumstance beyond the reasonable control of the party, that party shall not be liable in damages or otherwise for failure to perform that obligation and such failure shall not be a ground for terminating the Agreement.


12. General

(a) Nothing in the Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither party shall hold itself out as a partner or agent of the other party.

(b) The Agreement constitutes the whole and only agreement between the parties concerning the subject matter of the Agreement and supersedes any previous agreement between the parties relating to such subject matter. No amendment or other variation to the Agreement shall be effective unless it is in writing, is dated and is signed by a duly authorised representative of each party.

(c) The invalidity of any part of the Agreement shall not affect the legality or validity of the remainder of the Agreement and if any part of the Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the parties’ intentions and the remainder will remain in full force and effect.

(d) Licensor shall not be entitled to assign the Agreement without the prior written consent of Green Man Gaming.

(e) No delay in enforcing the provisions of the Agreement shall prejudice or restrict the rights of Green Man Gaming nor shall any waiver of operate as a waiver of any subsequent breach of the Agreement.

(f) The Agreement is made and shall be construed in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.