GameMaker: Marketplace End User Licence Agreement ("EULA")

GameMaker: Marketplace End User License Agreement (“EULA”)

About this document

This document applies to your use of software products licensed, or services obtained, from the GameMaker: Marketplace (which we’ll call “the Marketplace” as shorthand). This document is the default contract between customers of the Marketplace (that’s you!) and people or businesses from whom they can license products on the Marketplace. We call those products “Assets” in this EULA (there’s more about them explained below). It also applies to the provision of services via the Marketplace (“Services”). The people or businesses providing the Assets or Services are called “the Publisher” in this EULA and they are either: (i) YoYo Games Limited (company number 05260718) of River Court, 5 West Victoria Dock Road, Dundee, United Kingdom (“YoYo Games”); or (ii) any third party business that distributes products from the Marketplace.

1. ALTERNATE EULA

1.1. The Publisher may decide to replace this EULA with its own preferred legal document. If so, that document and not this one will govern your licensing and usage of the relevant Asset or Service. You will be able to see the Publisher’s EULA on the page for the relevant Asset or Services. If the Publisher does not use an alternate legal document, this EULA will apply to your licensing and use of the Asset or Services in question.

2. ACCEPTING THIS EULA

2.1. Accepting the EULA. This EULA is a legally binding contract regarding your use of Assets and Services via the Marketplace. Before you can access any Assets or Services, you need to show your acceptance of this EULA as part of your Marketplace account registration process and again when you license Assets or obtain Services. Please review this EULA carefully and contact us at [http://help.yoyogames.com/] if you have any questions or if you wish to propose any amendments, since once it comes into force it is legally binding upon you and us. In any event, your continuing usage of the Marketplace or any Assets or Services from it will be taken as your approval of this EULA.

2.2. Access for adults only or with adult approval. To accept this EULA or to use Assets or Services, you must be at least 18 years of age (or whatever is the age of legal majority in your country, if it’s not 18). If you are not an adult, you can accept this EULA and use Assets only with a parent’s or a guardian’s approval. We reserve the right to refuse to permit minors to obtain access to or to use the Marketplace at our discretion.

3. ACCESSING ASSETS AND SERVICES

3.1. By “Assets” we mean software and other things sold via the Marketplace. This includes: (i) software created to facilitate the development of interactive entertainment products; and (ii) content (like graphics, sounds, music, text, or other assets) that is intended to be integrated with interactive entertainment products.

3.2. By “Services” we mean professional services of all kinds that a Publisher is authorised to provide to you via the Marketplace, including, for example, software development or other technical assistance, graphics creation and audio engineering. You may need to speak or work with the Publisher to establish the exact method of use of the Services, depending on the facts and circumstances of the case (e.g. commissioning artwork).

3.3. By “Publisher” we mean any person, company or other legal entity who has accepted the GameMaker: Marketplace Publisher Agreement to distribute Assets or provide Services on the Marketplace.

3.4. In order to access Assets and Services, you first need to access the Marketplace, which you can do by following the process explained in the Terms of Service, which includes having an activated GameMaker: Studio Professional licence.

3.5. Assets are licensed, not sold. When you “buy” Assets, what happens is that the Publisher grants to you a non-exclusive, worldwide and perpetual right (known legally as a “licence”) over the Assets for the purpose of using them and integrating them with interactive entertainment products (which you may choose to distribute for free or for money – that’s up to you). You may copy, use and modify Assets for this purpose only and you may not distribute, sublicense, rent, lease or lend the Assets. You are therefore acquiring a licence over the Assets, not buying the Assets themselves (which the Publisher will still own). Your licence over the Assets is subject to this EULA.

3.6. Provision of Services. When you obtain Services via the Marketplace, the Publisher will be obliged to provide those Services to you and by default you will own what is produced from them, but not the Services themselves.

3.7. Multi-user/location arrangements. Only you are able to use the rights in this EULA regarding the Assets or Services you use – you cannot give rights to other people or share rights with others. If you would like to have a multi-user arrangement regarding an Asset or Service, please contact [http://help.yoyogames.com/]

3.8. Payment for Assets. Assets that are licensed for money can be obtained using payment services that we provide within the Marketplace with the help of third party payment services, like PayPal. As part of your licence acquisition process, you normally need to provide standard contact/payment information alongside your licence acquisition, for example your name, address and billing details. You can also provide your VAT number if you are a business (you will not be able to add it to purchases later on). We will charge you for the amount of the Asset price, plus any VAT and if applicable any bank charges, using your chosen payment method.

3.9. Updates to Assets. From time to time, Publishers may make updates (such as bug fixes, patches, new versions or enhancements) to Assets that may become available. You can set in the Marketplace whether to download these updates automatically or manually.

4. OWNERSHIP OF THE MARKETPLACE, ASSETS AND INTELLECTUAL PROPERTY RIGHTS

4.1. Ownership. The Assets, Services and all Intellectual Property Rights in them are owned by the Publisher. This includes the Asset’s software, code, graphics, video, audio, music and text. The Marketplace is owned by YoYo Games (this also includes the Marketplace’s software, code, graphics, video, audio, music and text).

4.2. Open source software. Some Assets and/or Services materials (whether developed by YoYo Games or by third parties) may contain open source software and so will also be governed by applicable open source software licences. If there is a dispute or discrepancy between this EULA and any such open source licences, the open source software licences will prevail.

5. CONSUMER RIGHTS REGARDING ASSETS

5.1. For consumers resident in the European Union. Under EU “Distance Selling” rules, consumers have the ability to return Assets and Services for a refund within 14 days of their ordering of them in the Marketplace. However, that right is lost as soon as consumers download or use the Assets or Services. Consumers will also benefit from legally required warranties regarding the quality and use of the Assets and Services (depending on their national consumer protection laws), which in appropriate circumstances consumers may use to claim a return or refund.

5.2. For consumers who are resident outside of the European Union (including the USA). All licence acquisitions are final and consumers have no right of return or refund, nor are any warranties given by Publishers or YoYo Games regarding the quality and use of the Assets or Services.

5.3. What happens when a consumer makes a return/refund request? For Assets, YoYo Games reviews that request on behalf of the Publisher and, if a return/refund right is available to the consumer, make a decision regarding whether a return/refund/other remedy should be offered. If a refund/return is offered, then usually you will be required to delete/destroy all copies of the Asset(s) in question and all your rights to it (them) will terminate. For Services, this is a matter for the Publisher.

5.4. What happens if an Asset or Service is taken down from the Marketplace? You will be notified that an Asset or Service is going to be removed from the Marketplace. If you have already licensed the Asset previously then in most situations we will endeavour to give you a reasonable period (normally 30 days) in which to use it a final time. However, this is subject to the reason for which it is being taken down (for example, if it is owing to third party intellectual property infringement we may be required to take it down immediately and not offer a final download period). For Services, this is a matter for the Publisher.

5.5. All other consumer queries. Please contact the Publisher in the first instance (their contact details should be available via the Marketplace). If you still have any concerns or queries after reasonable attempts to resolve them with the Publisher, you can contact YoYo Games at http://help.yoyogames.com/.

6. WHAT YOU MUST NOT DO WITH THE ASSETS OR SERVICES

6.1. You must not do any of the following regarding Assets, Services or the Marketplace:

6.1.1. Reproduce, duplicate, copy, sell, trade or resell them;

6.1.2. Copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from them;

6.1.3. Interfere with, circumvent or bypass servers or security or content usage functionality (including any digital rights management) in or regarding them;

6.1.4. Use them to access, copy, transfer, transcode or retransmit content in breach of any laws or third party rights; or

6.1.5. Remove, obscure or alter YoYo Games’ or any third party’s copyright or trademark or other proprietary notices or documentation regarding them, nor use any YoYo Games or other trademarks for your own purposes.

7. TERM AND TERMINATION

7.1. Start of EULA. This EULA starts when you confirm your agreement to it as explained at the beginning of this EULA and it will end once it is terminated, as we explain further in the rest of this section.

7.2. Your termination rights. You may terminate this EULA by ending use of the Assets or Services.

7.3. Mutual termination rights. You or we may terminate this EULA at any time on written notice to you if: (i) you or we materially breach this EULA; or (ii) you or we become or threaten to become insolvent or bankrupt.

7.4. Effect of termination. If this EULA terminates for any reason then it will cease immediately to have effect (apart from any sections that are necessary for enforcement of any legal rights and remedies against you. Depending on the details of the termination, you may lose your rights over your Assets and/or Services.

7.5. Removal of your Assets or Services. From time to time, there may be serious cases of breach of this EULA by an Asset or Service. In that situation, you may be required to remove such Asset from any computer or other equipment under your control and that you agree to comply promptly with such requirement.

8. LIABILITY

8.1. You agree on demand to indemnify and hold harmless YoYo Group and its officers, directors, employees and agents (and keep them indemnified and held harmless) from and against any and all damages, claims, suits, actions, judgments and costs (including legal costs) and expenses whatsoever, including reasonable legal fees and costs, arising out of your use of the Assets or Services, including your downloading, installation or use of any Assets, or your material breach of this EULA..

8.2. You understand and agree that your use of Assets and Services is at your own risk and that they are provided “as is” and “as available” without warranty or representation of any kind. All warranties, representations and conditions of any kind relating to them are disclaimed, including without limitation any implied warranties of satisfactory quality, merchantability, fitness for purpose or non-infringement of third party rights. In addition, no warranty or representation is given that your use of them will be uninterrupted or secure or free from bugs or errors.

8.3. The maximum and total aggregate liability of the Publisher and of YoYo Games, its group of companies, employees and affiliates (“YoYo Group”) to you in connection with this EULA shall be equivalent to the sum of $100 (one hundred US dollars).

8.4. In no event will the Publisher or YoYo Group be liable to you for any loss of profits, charges or expenses, loss of data or any corruption or loss of information, or any loss of business opportunity, or any special, indirect, punitive, exemplary or consequential loss or damage or disruption of any kind, in any case, whether based on breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise whether or not the relevant party has been advised of the possibility of such damage. The foregoing limitations will survive and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose.

8.5. Without prejudice to the generality of the rest of this clause 8, the Publisher and YoYo Group disclaim any liability regarding or arising out of:

8.5.1 Any reliance by you on the existence, completeness or accuracy of any marketing or advertising materials regarding Assets or Services;

8.5.2 Any changes made to any Assets or Services; or

8.5.3 Any damage or harm or deletion or corruption that is in any way attributable to your use of Assets or Services.

8.6. Nothing in this clause 8 purports to limit or exclude any party’s liability: (i) for fraud, fraudulent misrepresentation or wilful misconduct; (ii) for death or personal injury caused by that party’s negligence; or (iii) to the extent otherwise not permitted by law.

9. GENERAL LEGAL TERMS

9.1. No waiver. No failure or delay by a party to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

9.2. Impact of enforceability finding. If any court or competent authority finds that any provision of this EULA (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this EULA shall not be affected. If any invalid, unenforceable or illegal provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

9.3. Third parties. No person other than YoYo Group or a party to this EULA shall have any rights (whether under the United Kingdom’s Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this EULA.

9.4. No partnership or agency. Nothing in this EULA or in any document referred to in it or in any arrangement contemplated by it shall create a partnership, joint venture, agency or employment between the parties.

9.5. Entire EULA. This EULA contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior EULAs, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this EULA, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this EULA. Please remember, when reviewing this section, that you had had the opportunity at the start of this EULA to raise any queries and propose any amendments to its terms.

9.6. Export restrictions. It is your responsibility to comply with any import or export laws or regulations that may apply to your Assets on the Marketplace.

9.7. Assignment. The rights granted in this EULA may not be assigned or transferred by you, nor can you sub-contract or delegate your responsibilities under this EULA, without our prior written approval. The rights granted in this EULA may be assigned or transferred by us without your prior approval and we may also delegate or sub-contract our responsibilities or obligations under this EULA without your approval.

10. GOVERNING LAW AND JURISDICTION

You and we agree that this EULA shall be governed by and interpreted according to the laws of England and that any dispute regarding this EULA shall be heard by the courts of England.

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