Terms & Conditions Updated 26 June 2014

About this document

Hello and thanks for deciding to sell your products through the GameMaker: Marketplace (which we’ll call the “Marketplace” as shorthand). This document is a contract between you and us (YoYo Games Limited) explaining how your product will be sold to consumers using the Marketplace.


1. DEFINITIONS

This document will work a lot easier if we explain what we mean when we use certain words or phrases in it, so here we go:

"Agreement": This Marketplace Publisher Agreement and any appendices/schedules that go with it.
“Assets": this means software and other things sold via the Marketplace. This includes: (i) software created to facilitate the development of interactive entertainment products; or (ii) content (like graphics, sounds, music, text, or other assets) which are intended to be integrated with interactive entertainment products. “Confidential Information” means this Agreement and any commercial or technical information in whatever form which is disclosed by one party to the other party and which would be regarded as confidential by a reasonable business person, all business, statistical, financial, marketing and personnel information, customer or supplier details, know-how, designs, trade secrets or software of the disclosing party or any member of its group or any information that is marked as “Confidential”. "Customer": this means any person or company or other legal entity who wants to license Assets from the Marketplace. “Intellectual Property Rights” means any registered or unregistered intellectual property rights in any part of the world, including any patents and any application therefor, trade marks, service marks, know how, brand names, logos, design rights, database rights, copyright, domain names, goodwill and all similar intellectual property rights wherever and howsoever subsisting, whether or not registered or registrable including all granted applications and all applications for registration in respect of any of the same. "Publisher": this means you! We explain at section 4 how you become a Publisher. Any person, company or other legal entity who has accepted this Agreement by clicking and who is registered and approved by the Marketplace to distribute Assets in accordance with the terms of this Agreement. "Party" or "Parties": this means either or both of us (YoYo Games) and you (a Publisher).

"YoYo Games": that’s us. We are YoYo Games Limited (company number 05260718) of River Court, 5 West Victoria Dock Road, Dundee, United Kingdom.

2. ACCEPTING THE AGREEMENT

2.1. This Agreement is a legally binding contract between us and you regarding your distribution of your Assets using the Marketplace. Before you can use the Marketplace, we will need you to show your acceptance of this Agreement by you (or an authorised person on your behalf) [ticking the box that hyperlinks to this Agreement as part of your Marketplace setup process] . Please review it carefully and if necessary take professional advice on its meaning. Please contact us at marketplace@yoyogames.com if you have any questions or if you wish to propose any amendments to this Agreement, since once it comes into force it will be legally binding upon you and us. In any event, your continuing usage of the Marketplace or any Assets from it will be taken as your approval of this Agreement.

2.2. Access for adults only or with adult approval. To accept this Agreement or use Assets, you must also 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, then you can accept this Agreement and distribute Assets on the Marketplace only with a parent’s or guardian’s approval. We reserve the right to refuse to permit minors to distribute Assets on the Marketplaces at our discretion.

3. BETA ACCESS

3.1. The Marketplace is initially released as a “beta” version. That means that it is released with most of its features but it is not complete, it is still being tested and it may contain bugs or errors. It may not contain all of its features and it is likely to be patched or updated too. The beta test period will last until we decide to end it.

3.2. While the Marketplace is in beta, we don't make any promises about (or accept any liability for): the contents of the Marketplace, what it does, how it does it, how well it does it, or about future updates, patches or subsequent versions of the Marketplace. Please accept the Marketplace 'as is'.

4. ACCESS TO THE MARKETPLACE

4.1. In order to access the Marketplace, you will need to apply for a Marketplace account and provide certain details (including your name, address and GameMaker: Studio licence details). Your application will then be considered by our Customer Support Team and you will be notified by email of its decision.

4.2. You own your Assets and all Intellectual Property Rights in them, even if you sell them via the Marketplace.

4.3. However, in order to sell the Assets on the Marketplace we need some limited legal rights from you. Therefore, we ask you to grant us a nonexclusive, worldwide, and royalty-free license over (i) your Assets; (ii) your name, brand or logo; and (iii) and any Intellectual Property Rights in any of them, so that we can copy, distribute, modify, display, use and create derivative works from them for the purposes of: making the Assets available for sale on the Marketplace; marketing the Marketplace; and for our own internal and technical arrangements regarding making the Marketplace available to Customers.

4.4. You confirm that we are the sole and exclusive owner of the Marketplace and GameMaker: Studio and all Intellectual Property Rights in them, including without limitation their name, trademarks and logos.

5. UPLOADING ASSETS

5.1. You can upload Assets using the Marketplace upload process. You are responsible for how the Asset is displayed and marketed on the Marketplace, including compliance with the Marketplace – Submission Guidelines and the Marketplace Terms of Service . In particular, we expect you to provide at least a minimum amount of detail regarding what the Asset is, what it does, what technical requirement it has and what security permissions are required for it to function properly. We also expect the marketing of the Asset to be reasonably accurate and not misleading (for example, any screenshot should match the actual content of an Asset). Assets which are not uploaded, described or marketed properly may be queried or even rejected by us if we consider it necessary.

5.2. Once an Asset has been uploaded, it will be reviewed by our Customer Support Team who will carry out technical and other checks on the Asset in accordance with our Review Guidelines .

5.3. You must ensure that you own or have properly licensed any Assets or other material submitted to the Marketplace and all Intellectual Property Rights in them.

5.4. You agree that your Assets, and the Assets of third parties, on the Marketplace are the responsibility of you or their respective owners and we accept no responsibility or liability regarding them.

6. ASSET RATING SYSTEM AND ASSET PLACEMENT

6.1. Once Customers have licensed Assets, they will be able to rate them on the Marketplace. These Asset ratings will be a factor in how your Assets appear in the Marketplace: the better the reviews, generally speaking the better the placement (though we reserve the right to amend placements if we consider it necessary). Other factors in Asset placement include your history and past performance on the Marketplace. You will not have the ability to amend or reply to Asset ratings.

7. CUSTOMERS

7.1. Basic Customer rights. When a Customer ‘purchases’ an Asset on the Marketplace they must receive from you the necessary licence rights to download and use the Asset in conjunction with GameMaker: Studio. Further details are set out in the standard Marketplace End User Licence Agreement (“EULA”) which will apply by default between you and Customers. As that document explains, you may instead elect to use an alternative EULA to the Marketplace EULA. In any event, the EULA is solely between the Customer and you and we have no responsibility or liability for any breach of the EULA by a Customer, you or a third party.

7.2. For Customers who resident in the European Union. Customers have the ability to return Assets for a refund within 14 days of their acquisition of an Asset in the Marketplace. However, that right is lost as soon as Customers begin to use the Asset. Customers will also benefit from legally required warranties regarding the quality and use of the Assets (depending on their national consumer protection laws), which in appropriate circumstances only Customers may use to claim a return or refund.

7.3. For customers who are resident outside of the European Union (including the USA). All licence acquisitions are final and Customers have no right of return or refund, nor are any warranties given by us regarding the quality and use of the Assets (again, depending on their national consumer protection laws).

7.4. If a Customer makes a refund/return request. We will review that request on behalf of you and us and make a decision at our discretion regarding whether a return/refund/other remedy should be offered to that Customer. We reserve the right to grant a remedy to the Customer if we consider it appropriate, regardless of the legal situation (any refunds/returns will be deducted from your Marketplace account balance). If so, the Customer will be required to delete/destroy all copies of the Asset(s) in question and all rights to it will cease. We will also inform you of the action taken and any refund given to the Customer (plus any payment processing fees) will be deducted from your Marketplace account balance with us.

7.5. Customer remedies following an Asset takedown. If an Asset is taken down from the Marketplace under section 12 of this Agreement (Takedowns) within 1 (one) year of it being uploaded to the Marketplace, then we reserve the right to require you to issue a full refund to the Customer (including any revenue received by us, which will be non-repayable to you). Alternatively, we may decide to issue refunds to affected Customers ourselves and deduct the costs from your Marketplace account balance.

7.6. Consumer support from you. Apart from refund/return requests, you are responsible for handling any Customer queries or complaints. Please ensure that you make your contact information reasonably accessible to Customers (including via the Marketplace).

8. FINANCIAL TERMS

8.1. Asset sale business models. You can distribute Assets for free on the Marketplace, or you can charge a fee for them – it’s totally up to you. If you do decide to charge a fee, then it will be in US Dollars (USD) (though we may be able to offer additional currencies if we consider it appropriate – if so, we’ll let you know). We have a series of price points you can choose from - currently that includes the price points of USD 1.99, 2.99, 3.99, 4.99 and so on. We are not responsible for any currency or conversion rates or issues. Customers will be able to pay for Assets using the Marketplace via PayPal or the services of our designated payment processor.

8.2. Other forms of monetisation. If you decide to distribute an Asset for free, then you cannot have an alternative or enhanced edition outside of the Marketplace for which you do charge money (because then you’d just be circumventing the Marketplace). Nor can you directly or indirectly mention, request or accept donations for Assets.

8.3. Revenue calculation. Once money has been received from Customers, this is what happens:

8.3.1. We deduct from the gross revenue:

8.3.1.1. Customer returns, refunds or chargebacks; 8.3.1.2. bank transfer fees (if applicable); and 8.3.1.3. any applicable VAT or other consumption or sales taxes (see XX below),

8.3.2. Then 70% (seventy percent) of the net revenue that’s left goes to you as a revenue share and 30% (thirty percent) of it goes to us.

8.4. Payment terms. Any revenue due to you will be displayed to you via a web page. We will use reasonable efforts to make any revenue payments due to you 60 (Sixty) days following the last day of the first month in which you have earned revenue of at least $100 (one hundred US Dollars). We reserve the right to change this payment period on written notice to you (for example, if we encounter difficulties with PayPal which mean that monies due to you are withheld for a period of time, then we may in turn need to lengthen the time period before you are paid). If we are paying you by PayPal, we need you to maintain a valid and open PayPal account.

8.5. Alternative payment methods to you. If we agree to make non-PayPal payments to you, then we can instead make payments by bank transfer to you. However, this will only apply for balances above $250 (two hundred and fifty US Dollars) and on a quarterly basis. If in any quarter your balance is less than that amount, we will hold it until a quarter when it exceeds that amount. If you have a balance of less than $250 for more than eight consecutive quarters to you, we will pay you the balance (less any bank transfer fees). We will not pay you any interest on any sums we hold for you under this section.

8.6. Tax compliance. You are ultimately responsible for the payment of all taxes, except VAT, regarding sales of your assets on the Marketplace.

8.7. Withholding tax. Some countries have tax treaties which require part of some kinds of revenue to be withheld for a period of time – this is called withholding tax. We may be required to hold on to, or pay to a tax authority, withholding sums from net revenue otherwise due to you. If so, we will notify you. Ultimately it is your responsibility to deal with any withholding tax issues.

8.8. No set off. Any amounts due from you to us under this Agreement shall be made in whole without any set off or deduction of any kind.

9. UPGRADES, PATCHES AND NEW CONTENT

We encourage, but do not require, you to keep your Assets updated and to create new patches and other content for them over time. If so, then we ask you to distribute any upgraded or updated version of an Asset for free from the Marketplace

10. PROHIBITED ACTIONS

10.1. Conduct. Please follow the following rules regarding Assets or the Marketplace:

10.2. No services or multi-licensing without approval. If your Asset involves the provision of any kind of services to Customers or if it requires a multi-licence arrangement, then you must contact us first because a different form of agreement will be required.

10.3. No use of YoYo Games property. Nothing in this Agreement gives you any rights over YoYo Games software, brand or logo, Intellectual Property Rights or other property, unless we agree with you otherwise in writing.

11. OPEN SOURCE SOFTWARE

You represent and warrant to us that any open source software of any kind contained in your Assets will be properly licensed from the relevant person(s) and that you have full ability to use that open source software in the Asset. You are responsible for making sure that you and the Marketplace comply with any licence terms or other requirements are required as part of your use of that open source software (for example, including proper attributions with the Asset).

12. ASSET TAKEDOWNS/IP INFRINGEMENT

12.1. Takedown requests by you. We will take an Asset down from the Marketplace as soon as reasonably possible after a written request from you. This will not affect: (i) any Customers who have already licensed and downloaded the Asset; (ii) your obligations to Customers who have already licensed and downloaded the Asset.

12.2. Takedown following legal request. We do not undertake any legal obligation to monitor the Assets or their content but we reserve the right to do so if necessary. However, we can take an Asset down temporarily or permanently if we are notified by you, another Publisher, or a third party, or if we otherwise become aware, that:

12.2.1. an Asset that you have uploaded to the Marketplace does not adhere to this Agreement, or any Marketplace Guidelines in force at any time; or 12.2.2. if it breaches any Intellectual Property Rights or other legal rights; or 12.2.3. if we consider it is of inadequate quality; 12.2.4. [it is flagged by the Marketplace community for any of the above or other reasons].

13. DATA PRIVACY AND COMMUNICATIONS TO OR ABOUT YOU

13.1. We are responsible for personal information which we collect from Customers, Publishers or the Marketplace in accordance with our privacy policy and for complying with applicable data privacy law. We may, at our discretion, provide aggregated and anonymised data to you about the performance of Assets.

13.2. We will be able to forward your name, address and other contact details to any third party that in our view reasonably claims that you do or may not have all necessary Intellectual Property Rights in your Assets being distributed on the Marketplace.

13.3. You will be asked when setting up Marketplace access to agree to receive regular email communications from us regarding the Marketplace. We hope you will find this useful, but it is not a requirement of you using the Marketplace.

14. CONFIDENTIALITY

14.1. Neither party shall disclose Confidential Information to any third party and shall only release the Confidential Information to those of its directors, officers or employees who need to know it strictly for the purpose of exercising or performing that party’s rights and obligations under this Agreement (the “Purpose”). Each receiving party shall treat Confidential Information with the same degree of care and apply no lesser security measures than it affords to its own confidential information. The receiving party warrants that these measures provide adequate protection against unauthorised disclosure, copying or use.

14.2. The receiving party shall make no commercial use of the Confidential Information, except for the Purpose.

14.3. Confidential Information may be disclosed if and to the extent:

14.3.1. it is required by law, court order or other authority of competent jurisdiction or any regulatory or government authority to which the receiving party is subject, but in each case only to the extent required and for the purpose of such disclosure and provided that the disclosing party is promptly informed of the disclosure; 14.3.2. the receiving party reasonably considers it necessary to disclose the information to its professional advisers, auditors or bankers provided that it does so on terms protecting the information; 14.3.3. the information has entered the public domain through no fault of the receiving party; 14.3.4. the information was previously disclosed to the receiving party without any obligation of non-disclosure; or 14.3.5. the disclosing party has given its consent in writing

14.4. Without prejudice to the generality of clause 14.3, copies or reproductions of Confidential Information shall not be made except to the extent reasonably necessary for the Purpose and all copies made shall be dated and shall be the property of the disclosing party. The receiving party shall keep accurate and up to date records of any copies or reproductions and a list of any of the Parties set out in clause 14.3.2 above.

14.5. This clause 14 is supplemental to and does not replace any Non-Disclosure Agreement between you and us. In the event of any inconsistency or dispute between such a Non-Disclosure Agreement and this Agreement, this Agreement will prevail.

15. REPRESENTATIONS AND WARRANTIES

15.1. Each of you and we warrant to the other that you/we have the power and authority to enter into this Agreement and fully perform all obligations in this Agreement.

15.2. You represent and warrant that you own your Assets and all Intellectual Property Rights necessary to grant us the rights and licences set out in this Agreement. If you use third-party materials in the Assets, you represent and warrant that you have the right to distribute those third-party materials and have complied with any terms or restrictions.

15.3. You represent and warrant that you will use your Assets and Marketplace only for purposes that are expressly permitted by this Agreement and by any applicable law, regulation or industry practice.

16. TERM AND TERMINATION OF THIS AGREEMENT

16.1. Start date. This Agreement starts when you confirm your agreement to it and it will end once either you or we terminate it, as we explain further in the rest of this section.

16.2. Your termination rights. You may terminate this Agreement by ceasing to use the Marketplace and/or removing your Assets from the Marketplace.

16.3. Our termination rights. We may terminate this Agreement at any time on written notice to you if: (i) you materially breach this Agreement; (ii) you become insolvent (including being unable to pay your debts as they fall due and/or that the value of your assets is less than the amount of your liabilities taking into account contingent and prospective liabilities), propose an individual, company or partnership voluntary arrangement, have a receiver, administrator or manager or trustee in bankruptcy appointed over the whole or any part of your business or assets; if any petition shall be presented in good faith, order shall be made or resolution passed for your winding up (except for the purpose of amalgamation or reconstruction), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers); if you shall otherwise propose or enter into any composition or arrangement with your creditors or any class of them or you cease or threaten to cease to carry on business; or (iii) we decide not to provide the Marketplace anymore (see clause 18 above).

17. CONSEQUENCES OF TERMINATION

17.1. Effect on Agreement. If this Agreement terminates for any reason then this Agreement will cease immediately to have effect (apart from any sections which are necessary for our enforcement of any legal rights and remedies against you).

17.2. Impact of termination on your Assets. After termination of this Agreement, your Assets:

17.2.1. will as soon as reasonably practicable be made unavailable for any Customers to license them for the first time;

17.2.2. will remain available to Customers who have already licensed those Assets for a period of 30 days to download and access them (but subject to our decision regarding whether the reason for termination should prevent this); and

17.2.3. will be retained by us in order to fulfil any obligations towards Customers that will survive the removal of an Asset from the Marketplace.

18. REMOVAL OF ASSETS AND END OF MARKETPALCE

18.1. If for any reason we decide to cease to provide the Marketplace, then:

18.1.1. We will notify you as soon as reasonably possible; and

18.1.2. Assets will remain available to customers who have already licensed those Assets for a period of 30 days to download and access them (but subject to our ultimate discretion and our legal obligations whether they can be made available in this way or not).

18.2. Following that period, ordinarily the Assets (and if relevant the Marketplace) will no longer be available unless we notify you otherwise and this Agreement will terminate under clause 16.3.

19. DISCLAIMER OF WARRANTIES AND REPRESENTATIONS

19.1. You agree for the purpose of this section and for the avoidance of any doubt that you are entering this Agreement in the course of a business (i.e. the sale of Assets on the Marketplace) and not as a consumer, having had the opportunity to negotiate these terms.

19.2. You understand and agree that your use of the Marketplace is at your own risk and that the Marketplace is provided "as is" and "as available" without warranty or representation of any kind. We disclaim all warranties, representations and conditions of any kind relating to the Marketplace, including without limitation any implied warranties of satisfactory quality, merchantability, fitness for purpose or non-infringement of third party rights.

19.3. Your use of the Marketplace and any assets, information or other material obtained via the Marketplace is at your own discretion and risk.

19.4. You understand and agree that we are not responsible or liable for any unauthorised use of your Assets outside the Marketplace. This includes (without limitation) any distribution, sales or other use of Assets from third party locations (including pirate and peer-to-peer download web sites).

20. LIMITATION OF LIABILITY

20.1. The maximum and total aggregate liability of us (YoYo Games), our group of companies, our employees and our affiliates (“YoYo Group”) to you in connection with this Agreement shall be an amount equal to the net revenue actually paid to you during the preceding calendar year in which the relevant issues occurred.

20.2. In no event will 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 forgoing limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

20.3. Nothing in this clause 20 purports to limit or exclude either party’s liability for (i) fraud, fraudulent misrepresentation or wilful misconduct; or (ii) for death or personal injury caused by that party’s negligence; or (iii) to the extent otherwise not permitted by law.

21. INDEMNIFICATION

21.1. 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

21.1.1. YoYo Group’s operation of the Marketplace (including the use and sale of any Assets);

21.1.2. any use by you of Intellectual Property Rights or Confidential Information belonging to YoYo Group which has not been expressly authorised by YoYo Group pursuant to this Agreement;

21.1.3. any actual or alleged infringement by you of third party Intellectual Property Rights or Confidential Information in connection with the Marketplace or Assets; and/or

21.1.4. any material breach by you of this Agreement.

21.2. You shall promptly notify us as soon as you becomes aware of any third party claims against you regarding clause 21.1 above, following which we may elect for you to undertake and conduct the defence of any such claim at your expense and (to the extent practicable) in our or your name at our discretion. You will make no attempt to settle any such claim in whole or in part without our express prior written consent.

22. CHANGES TO THIS AGREEMENT

22.1. We may change this Agreement if we think it necessary (for example to reflect changes in the Marketplace or legal developments). If so, we will make the revised available online at within the Marketplace and we will email you to inform you of the changes.

22.2. Once we change the Agreement, you will be asked to agree to the revised version within the Marketplace. Once you agree, the revised Agreement will be legally binding on both you and us.

22.3. If you do not agree to the revised Agreement but continue to use the Marketplace, then the revised Agreement will become binding on you a reasonable period of time afterwards (which we would normally consider to be 14 days).

22.4. If you do not agree to the revised Agreement at all, you are welcome to terminate it and to cease using the Marketplace.

23. OTHER LEGAL TERMS

23.1. Force Majeure. Neither party shall be liable for any failure to fulfil its obligations under this Agreement as a result of Force Majeure, and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If either party is prevented or delayed in the performance of its obligations under this Agreement by reason of Force Majeure, that party shall, as soon as reasonably possible, serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure. (In this clause, “Force Majeure” means: any cause preventing a party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including strikes, lock-outs or other industrial disputes (other than any such dispute involving the workforce of the party so prevented), nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage (excluding malicious damage involving the employees of the affected party or its sub-contractors), compliance with any law or governmental order, rule, regulation or direction, industrial action by employees of any providers of electrical power, failure of technical facilities, fire, flood, or storm or default of suppliers or sub-contractors).

23.2. No Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.

23.3. Variations. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

23.4. Impact of enforceability finding. If any court or competent authority finds that any provision of this Agreement (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 Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement 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.

23.5. Method of execution. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.

23.6. Third parties. No person other than YoYo Group or a party to this Agreement 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 Agreement.

23.7. Arms’ length negotiation. The parties acknowledge and agree that this Agreement has been entered into on an arm’s length basis, following negotiation and agreement to be subject to its terms.

23.8. No partnership or agency. Nothing in this Agreement or in any document referred to in it or in any arrangement contemplated by it shall create a partnership, joint venture or employment between the parties or render a party the agent of the other, nor shall a party hold itself out as such (whether by an oral or written representation or by any other conduct) and save as expressly provided in this Agreement neither party shall enter into or have authority to enter into any engagement, or make any representation or warranty on behalf of, or pledge the credit of, or otherwise bind or oblige the other party.

23.9. Entire agreement. This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this Agreement, 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 Agreement.

23.10. Export restrictions. It is your responsibility to comply with any export law or regulations which may apply to your Assets on the Marketplace.

23.11. Assignment. The rights granted in this Agreement may not be assigned or transferred by you, nor can you sub-contract or delegate your responsibilities under this Agreement, without our prior written approval. The rights granted in this Agreement 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 Agreement without your approval.

24. GOVERNING LAW AND JURISDICTION:

For users resident in the European Union and elsewhere in the world (but not the USA):

24.1. You and we agree that your use of the Marketplace and this Agreement shall be governed by and interpreted according to the laws of Scotland and that any dispute regarding this Agreement shall be heard exclusively by the courts of Scotland. In any legal claim under this Agreement, the side which wins will be entitled to its legal fees and expenses.

For users in the USA:

24.2. You and we agree that your use of the Marketplace, and this Agreement shall be governed by and interpreted according to the laws of the State of California, USA., and any dispute shall be dealt with under the law of /California. You and we agree that any legal claim by you against us will be made exclusively any state or federal court located in San Francisco, which will have subject matter jurisdiction regarding the dispute between you and us and therefore we both consent to the exclusive jurisdiction of those courts. In any legal claim under this Agreement, the side which wins will be entitled to its legal fees and expenses.

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