GREEN MAN GAMING DIGITAL DISTRIBUTION ONLINE TERMS AND CONDITIONS: 7th FEBRUARY 2014 (“Terms”)
These online terms and conditions, as amended from time to time, govern the relationship between you (the “Licensor”) and Green Man Gaming Limited (“GMG”) for the distribution of games and other products using the GMG platform.
These Terms, as well as the distribution letter (“Commercial Schedule”) sent by GMG to you the Licensor form a legally binding contract between you and GMG. 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 GMG Services. GMG may modify the Terms of Service at any time. Revisions to terms shall be effective thirty (30) days after posting at greenmangaming.com/onlinedistributionterms.
- GMG owns and operates the web site and ecommerce and digital distribution platform available atwww.greenmangaming.com
- Licensor is involved in the publishing and distribution of computer games and wishes to make computer games which it has rights in or to available through GMG’s ecommerce and digital distribution platform.
- GMG wishes to make certain of Licensor’s computer games and other products available through GMG’s ecommerce and digital distribution platform in accordance with the terms of the Agreement.
- GMG 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.
The following terms have the following meanings in these Terms and the Commercial Schedule:
“Agreement” means these Terms and the Commercial Schedule together;
“GMG 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 GMG to Sell a Game as set out in the Commercial Schedule;
“Delivery Schedule” means the schedule for delivery of the Game as described in the Commercial Schedule;
“EULA” means the terms and conditions applicable to Selling of a Game by GMG 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;
“GMG Incentives” means the amount to be retrospectively retained by GMG in consideration for achieving certain targets as set out in the GMG Commercial Schedule;
“GMG Materials” means the materials provided by GMG as described in the Commercial Schedule;
“Incentive Criteria" means the criteria for which the GMG Incentive will become due as set out in the GMG Commercial Schedule;
“GMG Incentive Schedule” means the GMG Incentive Schedule 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 GMG in respect of the Selling of the Game LESS Deductions agreed in the Commercial Schedule and EXCLUDING Net Resale Revenues, in cleared non-refundable or repayable funds.
“Playfire Premium Service” means the marketing and promotions using the Playfire service which may be agreed between the parties as set out in the Playfire Premium Service Schedule in the Commercial Schedule (if appropriate);
“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 GMG at the point of purchase
“Revenue Share” means the share of Net Revenues described in the Commercial Schedule and the share of Net Resale Revenues described in the Commercial Schedule;
“Service” means the ecommerce and digital distribution platform service operated by GMG using 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 GMG 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 GMG shall be entitled to purchase a unit of a Game from the Licensor. Wholesale Prices listed in the Agreement shall be exclusive of sales tax and other relevant taxes such custom duties;
1.2. Grant of Rights
- Licensor hereby grants to GMG 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.
- Subject to the rights and licences granted hereunder and save for the GMG Materials, all Intellectual Property Rights in the Game shall belong to and vest in Licensor.
- All Intellectual Property Rights in the GMG Materials shall belong to and vest in GMG.
- Licensor shall deliver to GMG the Game in accordance with the Delivery Schedule.
- If specified in the applicable Commercial Schedule, Licensor shall incorporate the GMG Materials (if any) into the Game as reasonably required by GMG and GMG hereby grants to Licensor a non-exclusive, royalty free, right and licence to include the GMG Materials in the Game for such purpose only.
- Licensor shall deliver to GMG 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.
- Licensor will supply all information and documentation reasonably necessary to enable GMG to use, the Game under the Agreement.
- Licensor will use all reasonable efforts to protect and enforce its Intellectual Property Rights against third parties infringing the same and to combat piracy.
- GMG shall not be required to formally approve or evaluate the Game but in the event that GMG 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 GMG’s satisfaction, GMG shall be entitled to terminate the Agreement on giving Licensor immediate written notice.
1.4. Selling and GMG Contribution
- Licensor agrees and acknowledges that GMG shall be entitled to sell the Game on and subject to the terms of the EULA and that use of the Game by end users may be governed by the terms and conditions of the EULA.
- GMG shall provide the GMG 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.
- GMG agrees to use all reasonable efforts to provide Licensor with the GMG Contribution and to do so with reasonable skill and care. Where such GMG Contribution is expressed as a financial amount and to the extent that such is stated as recoupable in the Commercial Schedule, the GMG Contribution shall be deemed an advance against amounts payable to the Licensor and GMG shall be entitled to recoup all such GMG Contribution prior to making payment of these amounts.
- In connection with the provision of the GMG Contribution Licensor shall provide GMG 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 GMG shall have a non-exclusive right and licence to use such materials for all purposes connected with the provision of the GMG Contribution and the Selling of the Game.
- Licensor shall co-operate fully with GMG and provide all such assistance as GMG shall reasonably require.
1.5. Support and Playfire Premium Service
- 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 supportto 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.
- GMG shall supply Playfire premium services as set out in the Schedule (“Playfire Premium Service Schedule”) or as agreed between the parties from time to time.
1.6. Payment and Revenue Share
- GMG will pay to Licensor the amount set out in the Commercial Schedule as appropriate.
- GMG shall be entitled to retain amounts set out in the Schedules as appropriate
- Revenue Share due will be calculated monthly at the end of each calendar months (“Month”). Payment frequency and method are specified in the Commercial Schedule.
- No amount shall be due to Licensor in respect of any use of the Game for promotional or testing purposes by GMG, its agents, distributors or licensees save that GMG shall not use more than the permitted numbers of promotional and testing copies of the Game set out in the Commercial Schedule.
- All payments shall be made in the currency in which GMG receives payment save those which it notifies Licensor it shall pay in British Pounds Sterling and all sums are expressed to be exclusive of Value Added Tax or any other applicable sales tax or duties.
- With each payment GMG 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.
- In the event the parties agree for Incentive Criteria and the achievement of the Incentive Criteria being achieved GMG shall be entitled to deduct amounts payable to Licensor, the GMG Incentive, in subsequent Month or Months following the achievement of the Incentive Criteria. For the avoidance of doubt no payment shall be due from Licensor for the GMG Incentive.
- GMG shall keep full and proper books of account relating to the sales of the Game and the amounts payable under the Agreement. Licensor or its representative shall have the right during normal business hours, on reasonable notice and no more than once per year to inspect and audit and take copies of these books of account PROVIDED that it shall not unduly or unreasonably interfere with the ordinary business of GMG. In the event that any such inspection or audit shall reveal a shortfall in the amounts paid from that payable under the Agreement GMG shall immediately make up the shortfall.
- 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.
1.8. User Data
- GMG 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.
- GMG shall retain all right, title and interest in such data.
1.9. Warranties, Indemnity and Liability
- Licensor warrants, represents and undertakes to GMG that: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;
- it is the owner or authorised licensee (with right to sub-licensee) of the Game and all Intellectual Property Rights therein;
- 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;
- the Game is an original work and is not copied wholly or substantially from any other work or material;
- 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;
- the Game does not and its use by GMG will not infringe any Intellectual Property Right or other rights of any person and no exercise of the rights granted hereunder shall do so;
- 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;
- the Game does not contain any material which is obscene, offensive, racist, sexist or that may otherwise create any liability for GMG nor any virus, Trojan horses or any other malicious software;
- the Game will operate substantially in accordance with any applicable specification or documentation supplied to and accepted by GMG;
- 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.
- GMG warrants, represents and undertakes as follows to Licensor:
- GMG has the right and power to enter into and fully perform all of its obligations under the Agreement;
- subject to the Game or Game Materials provided to GMG by Licensor GMG 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;
- The Service shall be provided by GMG 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 GMG;
- GMG warrants and represents that it shall bear and pay any and all taxes, duties and customs of any kind due from it, however designated, levied and based in any way anywhere in the Territory upon the performance of the Agreement, including, for the avoidance of doubt and without limitation, all sales, use, excise, purchase, levies, value added or similar taxes;
- GMG 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.
- 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.
- 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.
1.10. Duration and Termination
- The Agreement shall continue for the Term unless terminated:
- 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;
- 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;
- by either party on giving 30 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.
- 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.
- 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 GMG shall additionally be entitled to supply end users whom have obtained a copy of the Game hereunder with a replacement;
- In the event of any breach or any claim of any breach of any warranty given by Licensor hereunder, GMG shall be entitled (but not obligated) to suspend Selling the Game.
1.11. Force majeure
- 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.
- 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.
- 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.
- 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.
- Licensor shall not be entitled to assign the Agreement without the prior written consent of GMG.
- No delay in enforcing the provisions of the Agreement shall prejudice or restrict the rights of GMG nor shall any waiver of operate as a waiver of any subsequent breach of the Agreement.
- 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.