means all information of a secret or proprietary nature disclosed to You by GameSparks in relation to the business of GameSparks including but not limited to the Licensed Software Platform and any proprietary rights and information contain therein.
means the documentation provided by GameSparks to customers relating to the Licensed Software Platform including any documentation related to integrations between the Licensed Software Platform and Your Licensee Content.
means any individual or entity that: (a) accesses or uses Licensee Content; or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services under their own account with us, rather than under Your account.
means Game Sparks Technologies Limited, a limited company in the Republic of Ireland, and all current and future subsidiaries of Game Sparks Technologies Limited.
“Licensed Software Platform”
means GameSparks’ software stack for hosting connected game functionality, comprising (a) all software program(s) running on GameSparks’ infrastructure and (b) all software delivered to You to support integration with the Licensed Software Platform (otherwise referred to as “the SDKs”).
means your games, applications, software or other content that is being integrated with the Licensed Software Platform and made available to the general public.
means the production servers of the Licensed Software Platform that You will publish Licensee Content to when making it available to the general public.
means Monthly Active Users, the total number of unique End Users of Licensee Content in any given month who cause consumption of the Services.
means where you are advised by GameSparks to make a change to Your configuration of the Licensed Software Platform in order to mitigate any adverse impact of the Licensee Content on the Licensed Software Platform.
means the development and test element of the Licensed Software Platform that You will use to create and configure the Licensee Content.
means the provision of the functionality of the Licensed Software Platform to You and any services provided by GameSparks to You in connection with the Licensed Software Platform.
means the internet site at the domain www.gamesparks.com or any other site operated by GameSparks.
means the person who registers to use the Services, and, where context permits, includes any entity on whose behalf that person registers to use the Services (irrespective of whether a personal or business email address is used to complete the registration). “Your” has corresponding meaning.
2. Grant of Licence
- GameSparks grants You the right to access and use the Licensed Software Platform solely for Your internal business purposes for the duration of this Agreement. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. Documentation may be copied and used as reasonably necessary in connection with Your authorized use of the Licensed Software Platform.
- You may not: (a) modify, adapt, decompile, disassemble, or reverse engineer any component of the Licensed Software Platform; (b) create derivative works based on any component of the Licensed Software Platform; (c) allow any third party to use or have access to any component of the Licensed Software Platform or Documentation (whether via sublicense, lease, resale or otherwise); or (d) access or use the Services in a way intended to avoid incurring fees or exceeding use limits. Any copy of any component of the Licensed Software Platform or Documentation made by You, including any partial copy, is the property of GameSparks. You will include on each such copy all copyright, trademarks, and other proprietary rights notices included by GameSparks on the originals.
3. Proprietary Rights
- You acknowledge and agree that: (a) the Licensed Software Platform and Documentation are the property of GameSparks or its licensors and not Yours; and (b) You will use the Licensed Software Platform and Documentation only under the terms and conditions described herein.
- You acknowledge that the Licensed Software and Documentation contain valuable proprietary information and trade secrets of GameSparks and that You shall take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Licensed Software Platform. Without limiting the foregoing You agree: (a) to take with respect to the Licensed Software Platform and Documentation at least those measures that You take to protect Your own confidential information; and (b) that the Licensed Software Platform and Documentation may not be disclosed, reproduced, summarized, distributed or used except as necessary to exercise the license granted hereunder.
- You are not obligated to provide feedback or suggested improvements to the Service to us (“Feedback”), however, if you do provide Feedback to us or our affiliates, we may use that Feedback without restriction.
- In consideration for use of the Services, You shall pay to GameSparks the fees (the “Fees”) set out in the fee schedule on the Pricing page of the Website (at http://www.gamesparks.com/pricing/), or in a bespoke commercial agreement you enter into with us, using the payment methods we support. GameSparks may change the fee schedule on the Pricing page from time to time by posting an update to the Website, effective no less than 30 days from posting. The Fees will be invoiced monthly to the Licensee billing information You provide to GameSparks, and are payable within 30 days of invoice. GameSparks may bill You more frequently for fees accrued if GameSparks suspects that Your account is fraudulent or at risk of non-payment. All amounts payable by You under this Agreement will be paid to GameSparks without setoff or counterclaim, and without any deduction or withholding.
- Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. GameSparks may charge and you will pay applicable Indirect Taxes that GameSparks is legally obligated or allowed to collect from you. You will provide such information to GameSparks as reasonably required to determine whether GameSparks is obligated to collect Indirect Taxes from you. GameSparks will not collect, and you will not pay, any Indirect Tax for which you furnish GameSparks a properly completed exemption certificate or a direct payment permit certificate for which you may claim an available exemption from such Indirect Tax. All payments made by you to GameSparks under this Agreement will be made free and clear of any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, you will pay such additional amounts as are necessary so that the net amount received by GameSparks is equal to the amount then due and payable under this Agreement. GameSparks will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes, sales and transactions taxes, and gross tax receipts.
5. Live, Preview and Limitations
- You may only publish Licensee Content to Live if: (a) You subscribe to a tier of the Services entitled to publish to Live as set out on the Pricing page of the Website, and GameSparks has validated your billing information; or (b) You have agreed a bespoke commercial agreement with GameSparks.
- You may only use Preview for testing and development purposes, and may not publish Licensee Content to Live, or otherwise use it to make Licensee Content available to the general public.
- Use of the Services is subject to the GameSparks Usage Limits and Fair Use Policy at http://www.gamesparks.com/fair-usage-policy/, which may be updated from time to time.
- As a licensee of the Services you are entitled to use of the GameSparks forums and tutorials, and to the support services for the tier of the Services you subscribe to as set out on the Pricing page of the Website, or in a bespoke commercial agreement you enter into with us. GameSparks may update the support services from time to time by posting an update to the Website.
- This Agreement incorporates the GameSparks Data Processing Addendum (“DPA”), which is available on the Website at http://www.gamesparks.com/dpa/, when the General Data Protection Regulation (GDPR) applies to your use of the Services to process Customer Data (as defined in the DPA).
8. Term and termination
- The licence granted under this Agreement for the Licensed Software Platform enters into force starting from moment of registration and it shall be perpetual unless terminated.
- GameSparks, at its sole discretion, may suspend or terminate this Agreement with immediate effect if:
- GameSparks suspects that You are endangering the Licensed Software Platform, the Licensee Content of any other customer, or your use of the Services are fraudulent or could subject us, our affiliates, or any third party to liability;
- if your billing information is invalid; or
- You commit any material breach of Your obligations under this Agreement which, in the case of a breach capable of remedy, is not remedied within fourteen (14) days of the date of service of a written notice specifying the breach and requiring it to be remedied;
- You hold any meeting with or propose to enter into or have proposed to it any arrangement or composition with your creditors (including any voluntary arrangement as described in the Insolvency Act 1986), You have a receiver, administrator or other encumbrancer take possession of or appointed over or have any distress, execution or other process levied or enforced (and not discharged within seven (7) days) upon the whole or substantially all of Your assets, or You cease to carry on business or become unable to pay Your debts within the meaning of Section 123 of the Insolvency Act 1986;
- You have or may become incapable of performing Your obligations under this Agreement;
- Our rights to software or other technology we use to provide the Licensed Software Platform expires, terminates or requires us to change the Licensed Software Platform; or
- Such action is required to comply with the law or a request of a governmental entity.
- This Agreement, and the licence granted in this Agreement, may be terminated by GameSparks after ten (10) days’ written notice upon the occurrence of one or more of the following:
- upon Your attempt to reverse engineer the Licensed Software Platform or in any other way to use of the Licensed Software Platform in a manner inconsistent with Section 2 above;
- upon your failure to pay any amount due to GameSparks hereunder at the time such amount is due or within ten (10) days after written notice; or
- upon any other breach by You of Your material obligations under this Agreement or any other agreement with GameSparks relating to the Licensed Software Platform.
- Either party may terminate this Agreement for any reason by giving the other party thirty (30) days’ written notice.
- Should this Agreement be terminated, You agree to return or certify to the destruction of all copies of the Licensed Software Platform (including the SDKs) and Documentation in your possession, and all amounts owed by You under this Agreement shall be immediately due and payable. All rights and licenses grants to You hereunder shall immediately terminate upon any termination or expiration of this Agreement.
- The terms set out in Sections 3, 9, 10(2), 10(3), 10(4), 11(5) and 13 survive termination, cancellation, or expiration of this Agreement.
- GameSparks can delete Licensee Content from Preview and Live if there is no activity for 6 months, where activity is defined as any connections to Preview or Live or any changes made to the game configuration.
- You undertake, for the duration of this agreement and thereafter, to keep secret any Confidential Information received or which could be gained in the process of performing the Agreement and not to use it for any purpose other than the performance of Your obligations under this Agreement.
- Your obligations of confidentiality and non-use shall not apply to any information or data which:
- becomes public knowledge otherwise than as result of any act or default by You;
- is public knowledge at the time of its receipt by You;
- is required to be disclosed by law to any governmental or other authority or regulatory body provided that where practicable the requirement to disclose is first notified to GameSparks in order that GameSparks may first exhaust any rights of appeal it may have against such requirement.
- You may disclose Confidential Information to your:
- directors or employees or any members of your group that need to have access to it for the purpose of the Agreement; and/or
- professional advisers subject to appropriate conditions of confidentiality.
- You shall ensure that any of Your directors, employees and advisers shall comply with the obligations of confidentiality contained in this Section.
10. Warranty and liability
- GameSparks warrants to and undertakes with You that:
- GameSparks will use its reasonable efforts to provide the Services with reasonable care and skill, in accordance with the terms of this Agreement; and
- GameSparks has full right of power and authority to enter into this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. GAMESPARKS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GAMESPARKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
- GAMESPARKS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ITS NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR OMISSIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH GAMESPARKS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, GAMESPARKS CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, GAMESPARKS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
- YOU AGREE THAT GAMESPARKS’ LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY YOU TO GAMESPARKS FOR YOUR USE OF THE SERVICES. IN NO EVENT WILL GAMESPARKS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF DATA OR ANY OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE DOCUMENTATION, EVEN IF GAMESPARKS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY.
11. Your obligations and warranties
- You represent, warrant and undertake that, at all times during the term of this Agreement:
- You own the Intellectual Property Rights in the Licensee Content and are fully entitled to use the same for the purposes envisaged by this Agreement;
- the Licensee Content does not contain a virus, worm, Trojan horse or other harmful code;
- the Licensee Content does not breach any of the guidelines made available on the devices and related stores in which it will be released;
- the Licensee Content is not unlawful, threatening, abusive, harmful, malicious, obscene, pornographic, malicious, profane, libellous, defamatory under the laws of any jurisdiction where the Licensee Content can be accessed; and
- You have the necessary data protection and privacy agreements in place with your End Users.
- You undertake that if GameSparks makes a Performance Recommendation you will implement the change within 5 working days, unless we grant an extension in writing. If You have not made the change within this timeframe we reserve the right to block the individual problem script and/or move the Licensee Content to a quarantine cluster that limits impact on our other customers. There may be other delinquent games or apps on this quarantine cluster.
- In the event that You are in breach of any of Your obligations under this Agreement, then:
- GameSparks cannot be held responsible should there be any resultant failure in the Services as a direct or indirect result thereof;
- GameSparks may terminate or suspend support in relation to the Services without prejudice to any pre-existing right and obligations of either party.
- You represent, warrant and undertake that:
- You have and shall have during the Term the legal right and authority, and you have obtained all necessary third-party clearances, rights and licenses, to place and use and have used any of its equipment as contemplated under this Agreement;
- You will use the Services only for lawful purposes and in accordance with this Agreement; and
- You will provide all such assistance, facilities and information to GameSparks as GameSparks may reasonably require in order for it to carry out its obligations under this Agreement;
- You hereby indemnify and hold harmless GameSparks in respect of any expenses, losses, liabilities or damages which arise as direct or indirect consequences of your use of the Service, any breach of this Agreement including the representations, undertakings or warranties given by You under this Section 11, Licensee Content, or any dispute between you and any End User.
- You will be deemed to have taken any action you permit or facilitate any person to take related to your use of the Services. You are responsible for End Users’ use of the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with them are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Licensee Content and the Services by such End User. We do not provide any support or services to End Users.
- You are responsible for properly configuring and using the Licensed Software Platform and otherwise taking reasonable steps to prevent security breaches and secure and backup Licensee Content.
- You are responsible for maintaining the confidentiality of any passwords which are required to access the Licensed Software Platform and are solely responsible for any damage caused by any such unauthorised access.