YoYo Games User Agreement
Last updated: 23 December 2020
ABOUT THIS DOCUMENT
This document explains the legal terms and conditions that apply when you use GameMaker, the YYG Platforms and any content or services available via them (as explained below).
OTHER LEGAL DOCUMENTS
We have various other legal documents which apply additional rules to different aspects of our services, all of which are hereby incorporated by reference into this User Agreement:
- b) IP Rights Policy: this sets out what to do if you think someone is infringing your intellectual property rights.
- c) GMC Guidelines: this sets out additional guidelines for our GameMaker Community forums.
- d) Brand Usage Guidelines: this sets out when you are and are not allowed to use our YYG branding.
- e) Publisher Agreement: this sets out the terms on which you may be able to distribute products and services via the YYG Platforms.
- f) Gift Voucher Agreements: these set out special rules regarding gift vouchers and are comprised of the YoYo Games Voucher Purchaser Agreement and YoYo Games Voucher Recipient Agreement.
This document will work better if we explain what we mean when we use certain words or phrases:
"Customer": means any person, company or other legal entity that uses YYG Property (also referred to throughout as "you").
"Customer Content": means any content that Customers upload, post, share or transmit to or through the YYG Platforms including without limitation any text, videos, photographs, screenshots, images and links.
"Educational Institution": means a school or other formal institution of learning, licensed under applicable law to teach.
"GameMaker": means the proprietary computer software program known as 'GameMaker' from YoYo Games, including: (i) any and all constituent elements of the same (including its code, tools, data, scripts, technologies, software libraries etc); and (ii) any upgrades, patches, fixes, improvements or additional content, in each case including all Intellectual Property Rights in the same.
"Intellectual Property Rights": means any and all copyright, trade marks, service marks, trade dress, brand names, logos, goodwill, get up, trade, business or domain names, design rights, database rights, patents, rights in inventions, know-how, trade secrets and confidential information, rights in databases, rights in computer software (including source code and object code), moral rights, author rights, rental and lending rights, publicity rights, performance rights, synchronisation rights, mechanical rights, publishing, rental, lending and transmission rights and other intellectual property and exploitation rights of a similar or corresponding character which may now or in the future subsist in any part of the world, in all cases whether or not registered or registrable including all granted applications and all applications for registration, division, continuation, reissuance, renewals, extensions, restorations and reversions regarding any of the same.
"Publisher": means a person, company or other legal entity that creates or publishes any Publisher Property.
"Publisher Property": means third-party products or services created by Publishers using GameMaker which can be licensed or accessed via the YYG Platforms and/or other third party platforms. This can include (but is not limited to): (i) software created to facilitate the development of interactive entertainment products; (ii) content (such as graphics, sounds, videos, music, text, screenshots and images) which are intended to be integrated with interactive entertainment products; and/or (iii) services (such as graphic design or audio engineering) offered to Customers.
"User Agreement": means this document and any documents that form part of it or are related to it, as updated by YoYo Games from time to time.
"YoYo Games": that's us. We are YoYo Games Limited (company number 05260718) of Ground Floor, Mid-City Place, 71 High Holborn, London WC1V 6DA, UK (also "we", "us", and "our").
"YYG Content": means official first-party products or services provided by YYG which can be licensed or accessed via the YYG Platforms. This can include (but is not limited to): (i) software created to facilitate the development of interactive entertainment products; (ii) content (such as graphics, sounds, videos, music, text, screenshots and images) which are intended to be integrated with interactive entertainment products; and/or (iii) services (such as graphic design or audio engineering) offered to Customers, but specifically excludes GameMaker, Publisher Property and Customer Content.
"YYG Platforms": means any YoYo Games platforms and websites (including the GameMaker Showcase, GameMaker Learn, GameMaker Marketplace and GameMaker Community features) as updated, replaced or expanded from time to time but excluding the YYG Content and GameMaker.
"YYG Property": means: (i) YYG Platforms; (ii) YYG Content; (iii) GameMaker; and (iv) any other YoYo Games products, services, intellectual property and materials of any kind, in each case including all Intellectual Property Rights in and updates and modifications to the same.
1. ACCEPTING THIS USER AGREEMENT
- 1.1. Acceptance of this User Agreement. This User Agreement is a legally binding contract between Customers (that's you) and YoYo Games (that's us) regarding your use of GameMaker and other YYG Property and any content, functionality, products and services offered on or accessed via them. Please review it carefully. You are welcome to contact us at help.yoyogames.com if you have any questions or comments about this User Agreement, but in any event your continuing usage of any of the above will demonstrate your approval of this User Agreement.
- 1.2. Access for Adults Only or With Adult Approval. Legally, you must be at least 13 years old to use the YYG Property and Publisher Property. If you are between 13 and 18 (or whatever is the local age of majority in your home territory), please ask your parent or guardian to review and approve this User Agreement and to supervise your use of the YYG Property and Publisher Property. Some YYG Property and Publisher Property may have age ratings, which will be displayed when you purchase and/or download them. Please note that there are special rules for Educational Institutions detailed in sections 3.11 (Educational Subscriptions) - 3.13 (Compliance and Privacy) below.
2. PRE-RELEASE ACCESS
- 2.1. We may make parts of the YYG Property available as a pre-release/alpha/beta version(s) from time to time. This means that it would be released with some or most of its features, but it would not be complete and would still be subject to testing/further development - therefore it may still contain bugs or errors. It is likely to therefore need patching and updating too. The pre-release period will last until we decide to end it. We do not make any promises about (or accept any liability for) any such pre-release version's contents, what it does, how it does it, how well it does it or about future updates, patches or subsequent versions - you must accept it 'as is'.
3. ACCESSING AND USING THE YYG PROPERTY AND PUBLISHER PROPERTY
YYG PLATFORMS AND YYG CONTENT
- 3.2. Use of YYG Platforms. You are granted a non-exclusive, non-transferable, revocable, limited, worldwide and royalty-free licence to use the YYG Platforms for authorised purposes, including to browse, locate, access and use YYG Content and Publisher Property. Some content may be made available to you for free while other content may be licensed for money. You must access the YYG Platforms solely through authorised means and must not attempt to access the YYG Platforms through any other means, in particular not through automated means like scripts or crawlers or similar technology.
- 3.3. Use of YYG Content. Where you license YYG Content from the GameMaker Marketplace, YoYo Games grants to you a non-exclusive, non-transferable, revocable, limited, worldwide licence to use such YYG Content for its intended purpose only, which will vary depending on the type of YYG Content, subject to your full compliance with the terms of this User Agreement and payment of all applicable fees. For example, for YYG assets (e.g. sprites, extensions, skins and demos) you are allowed to include these as embedded components of digital games and associated marketing (which you may choose to distribute for free or for money - that's up to you), but for YYG tutorials you are only allowed to use these for your personal educational use.
- 3.4. GameMaker Community Guidelines. When accessing or using the GameMaker Community you must also comply with the GMC Guidelines at all times.
- 3.5. Gift Vouchers. The purchase and redemption of Gift Vouchers are subject to the terms of the Gift Voucher Agreements.
- 3.6. GameMaker Subscriptions. Customers may license various subscriptions for GameMaker, as further detailed at https://www.yoyogames.com/get. Different subscriptions have different functionality and it is up to you to ensure you pick the right subscription for your particular needs. YoYo Games grants to you a non-exclusive, non-transferable, revocable, limited, worldwide licence for the licence duration specified at the time of purchase to: (i) install GameMaker for your personal use on up to three devices in order to develop and publish Publisher Property (e.g. assets and games); and (ii) distribute the runtime portion of GameMaker in object code format only as an integrated and inseparable part of your Publisher Property to third parties to whom you license your Publisher Property, subject in each case to your full compliance with the terms of this User Agreement and payment of all applicable fees. If you would like to discuss a multi-user arrangement please contact email@example.com first. There are special rules for Educational Institutions detailed below.
- 3.7. Exporting Content. If you hold the appropriate level of GameMaker licence, you may export your Publisher Property to applicable third party platforms such as iOS and Ubuntu as permitted by us (further details can be found at www.yoyogames.com). You agree that any such exporting is at your own risk and may be subject to additional terms and conditions depending on the applicable third party platform, which we suggest you read carefully before exporting any content. In no circumstances are you permitted to export a third party's content or export your own content via a third party's GameMaker licence.
- 3.8. Free Trials. We may occasionally offer limited time free trial subscriptions for GameMaker ("Free Trials") which will be subject to additional limitations and restrictions (notified to you on the relevant YYG website) compared to regular GameMaker subscriptions. At a minimum, your access to Free Trials will always be subject to the following additional restrictions: (i) you may only build content locally and will not be able to generate executables (i.e. you should not share any content you make with others); and (ii) you may not commercialise any content created using a Free Trial (which includes not exporting your content to third party platforms or the GameMaker Marketplace) without first licensing an appropriate paid GameMaker subscription.
- 3.9. Publisher Property Licence. When you 'buy' Publisher Property, the Publisher grants to you a non-exclusive and worldwide licence over the Publisher Property to use it via authorised means for its intended and authorised purposes only. For third party assets (e.g. sprites, extensions, skins and demos) this will normally mean that you are allowed to include these as embedded components of digital games and associated marketing, but you should check any additional terms imposed via a Publisher's end user agreement ("Publisher EULA"). You are therefore acquiring a licence over Publisher Property, not buying it.
- 3.10. Responsibility for Publisher Property. The following provisions will apply regardless of what is set out in a Publisher EULA:
- (i) Publishers are solely responsible for how their Publisher Property operates and how it is displayed and marketed via the YYG Platforms or otherwise. We take no responsibility or liability for Publisher Property or how it operates or is displayed or marketed, what it does or does not contain or how it performs. Any warranties or representations regarding the Publisher Property are the Publisher's sole responsibility. The Publisher is solely responsible in particular for: (a) quality and product liability claims; (b) any claim that the Publisher Property fails to comply with any applicable legal or regulatory requirements; and (c) any claims under consumer protection or other laws.
- (ii) All customer support, disputes, queries or other matters regarding Publisher Property are the responsibility of the applicable Publisher and not YoYo Games.
- (iii) The Publisher, not YoYo Games, is responsible for ensuring that the Publisher Property does not infringe any third party Intellectual Property Rights and for dealing with any claim, issue or dispute about the same.
- (iv) If you have any complaints or issues with Publisher Property, the Publisher must use good faith endeavours to resolve them with you.
- 3.11. Educational Subscriptions. Various educational subscriptions for GameMaker are available to Educational Institutions, as further detailed at https://www.yoyogames.com/education. Different subscriptions have different functionality and it is up to each Educational Institution to ensure it picks the right subscriptions for its particular needs. In the process of opening a YYG Platforms account, an authorised representative of the Educational Institution (e.g. a. teacher) (the "Authorised Representative"), shall be required to complete the educational application form on behalf of the Educational Institution and in doing so that Authorised Representative represents and warrants that he/she/they have authority and have obtained all approvals and authorisations necessary to bind the Educational Institution to this User Agreement. If verified and approved by YoYo Games, the Educational Institution may purchase an educational GameMaker subscription and the Authorised Representative shall be permitted to operate the Educational Institution's education account.
- 3.12. Educational Licences. Where an approved Educational Institution purchases a GameMaker subscription, YoYo Games grants to that Educational Institution a non-exclusive, non-transferable, revocable, limited, worldwide and royalty-free licence for the licence duration specified at the time of purchase to use GameMaker for the sole purpose of: (i) allowing that Educational Institution's students to develop and publish Publisher Property (e.g. assets and games); and (ii) distributing the runtime portion of GameMaker in object code format only as an integrated and inseparable part of such Publisher Property to third parties to whom such Publisher Property is licensed (the "Educational License"), subject in each case to the Educational Institution's compliance (together with the compliance of its Authorised Representative and its students) with the terms and conditions of this User Agreement and payment of all applicable subscription fees. An Educational Institution must not operate GameMaker concurrently on more working stations than permitted by its Educational Licence.
- 3.14. Sub-licensing and Reselling. Sub-licensing and reselling of GameMaker subscriptions and Educational Licenses are not permitted under this User Agreement. If you would like to discuss this further, please contact us at firstname.lastname@example.org first.
- 3.15. Monitoring. We do not accept any obligation to monitor, screen, review, flag, filter, moderate or remove any Customer Content, Publisher Property or other content from the YYG Platforms though we reserve the right to undertake such actions if necessary.
- 3.16. Updates. From time to time, the YYG Property or Publisher Property which is software may be subject to updates (such as bug fixes, patches, new versions and enhancements). You can set in GameMaker whether to download such updates automatically or manually, but please note that if you turn off automatic updates then YYG Property and/or Publisher Property may no longer work properly (or at all). Please note we may remove any YYG Content and/or Publisher Property which no longer works with the YYG Platforms. YoYo Games may at its sole discretion and from time to time change, add or remove features and functionality of the YYG Property without any notice to you. YoYo Games reserves the right to discontinue some or all of the features of the YYG Property at any time at its sole discretion (including the provision of software updates). You acknowledge and agree that YoYo Games will not be liable to you or to any third party for any modification, suspension or discontinuance of the YYG Property. If you are dissatisfied with any changes to the YYG Property, then your sole option is to discontinue or terminate your use of the YYG Property as described herein.
- 3.17. Compliance. You are solely responsible for your own use of the YYG Property and for any breach of your obligations under this User Agreement. You are responsible for compliance with all local laws, regulation and industry practice when accessing and using the YYG Property, Publisher Property and Customer Content.
- 3.18. Ratings. You may be able to rate and review YYG Content and Publisher Property via the YYG Platforms. Please be honest and constructive in your ratings and bear in mind that you are responsible for your rating and any comments you make.
- 3.19. Third Party Links. You might get links from us or third parties to third party websites or content through the YYG Platforms. Your use of them is your responsibility - we cannot promise they will work, what they will be like or if they are free.
4. CUSTOMER CONTENT
5. PAYMENTS AND REFUNDS
6. PROHIBITED ACTIONS
You must follow the below rules regarding all YYG Property, Customer Content and Publisher Property:
- (i) Only use them for any personal or commercial purposes authorised under this User Agreement.
- (ii) Do not copy, modify, merge, distribute, translate, rent, lend, lease, reverse engineer, decompile, disassemble or create derivative works of: (i) Publisher Property (unless specifically agreed otherwise with the relevant Publisher); or (ii) the YYG Property.
- (iii) Do not hack, harm, grief or misuse them or use any viruses or other harmful software in connection with them.
- (iv) Do not create or use exploits, automation software (aka 'bots') or other software or do anything else to give you an unfair advantage regarding them (or try to circumvent or harm software meant to stop these things).
- (v) Do not interfere with them or their network software or other software including via tunneling, code injection, modifying or changing the software, using any other software together with them, through protocol emulation or through creation or use of private servers regarding them.
- (vi) Do not use them to access, copy, transfer, transcode or retransmit content in breach of any laws or third party rights.
- (vii) Do not remove, obscure or alter YoYo Games' or any third party's copyright, trade mark or other proprietary notices or documentation regarding them, nor use any YoYo Games or other trademarks for your own purposes other than as explicitly permitted in the Brand Usage Guidelines.
- (viii) Do not do or say anything which is or may be considered threatening, abusive, obscene, racist, xenophobic, sexist, defamatory, pornographic, sexually explicit or otherwise offensive or illegal. This includes masked words (---), acronyms and abbreviations.
- (ix) Do not submit personal information of other persons without their consent.
- (x) Do not use the YYG Property for commercial product promotions, off-topic messages or political purposes; no spam, chain letters, pyramid schemes or fraudulent or deceptive messages; no false claims of affiliation with any third party.
7. INTELLECTUAL PROPERTY AND OWNERSHIP
- 7.1. Publisher Property. Each Publisher is the owner or licensor of its Publisher Property and all Intellectual Property Rights in it.
- 7.2. Ownership of YYG Property. We are the sole and exclusive owner of the YYG Property and all Intellectual Property Rights in it. All rights not expressly licensed or granted to you under this User Agreement are expressly reserved to us. YYG Property is licensed not sold.
- 7.3. Educational Institution Content. As between YoYo Games and an Educational Institution, the Educational Institution is the owner or licensor of any content created under an Educational Institutional Licence. Educational Institutions are solely responsibility for addressing ownership and intellectual property matters as between itself and its students.
- 7.4. Customer Content. You retain ownership of any rights you may have in your Customer Content.
- 7.5. Feedback. You are welcome to give us feedback and suggestions to improve the YYG Property ("Feedback") - in such case you can contact us at help.yoyogames.com. We appreciate your Feedback, but we may choose to use, not use or accept it at our sole discretion. In any event and regardless of how it is communicated to us, YYG will be the sole and exclusive owner of all Feedback you provide to us and we may at our discretion review, keep and/or use all Feedback in any way, commercial or otherwise, without any obligations or liability to you, financial or otherwise. By submitting any Feedback you assign to us absolutely with full title guarantee all right, title and interest you have in the Feedback and agree not to assert any moral, personal, publicity or other equivalent rights anywhere in the world in relation to the Feedback, including without limitation the right to be identified, the right of integrity and the right against false attribution.
- 7.6. Third Party Software. The YYG Platforms incorporate and/or contain third party software (the "Third Party Software"), which is subject to and provided in accordance with certain terms and conditions that are in addition to and/or may vary from the terms set forth in this Agreement. Such terms are included or referenced in, from time to time, the applicable Third Party Software licence available at https://www.yoyogames.com/legal/thirdpartysoftware (collectively, the "Third Party Software Terms"). By accepting this User Agreement: (i) you acknowledge that any representations and warranties granted by YoYo Games in this User Agreement do not apply to Third Party Software; and (ii) you undertake, represent and warrant that you will, and will ensure that any third party acting on your behalf: (a) comply with such Third Party Software Terms; and (b) include all applicable Third Party Software Terms in your own Publisher Property as appropriate and as required by the Third Party Software Terms.
- 7.7. Content Removal. We reserve the right to remove Customer Content and Publisher Property from the YYG Platforms temporarily or permanently for any reason, in our sole discretion, including but not limited to where: (i) we are requested to do so by its Publisher; (ii) we are required by a competent law enforcement authority; (iii) this is uploaded by a 'repeat infringer' (i.e. any Customer that has received multiple takedown notices against him/her/them); or (iv) we are notified or become aware that the Customer Content or Publisher Property (in whole or in part):
- a) breaches the Intellectual Property Rights or any other rights of YoYo Games or any third party;
- b) breaches any provisions of this User Agreement or our other rules, including in particular the prohibited actions outlined in section 6 (Prohibited Actions) above and our GMC Guidelines;
- c) breaches any applicable law or is subject to an injunction;
- d) is being distributed by its Publisher improperly or illegally;
- e) may create liability for or damage the public image, reputation or goodwill of YoYo Games;
- f) is of inadequate quality;
- g) contains any virus, malware, or other harmful software or may have an adverse impact on YoYo Games and/or YYG Property; or
- h) breaches this User Agreement or any other relevant legal document.
- 7.8. Brand Usage Guidelines. You agree to comply with the Brand Usage Guidelines (as updated by YoYo Games from time to time) at all times regarding your use of any YoYo Games branding.
8. TERM AND TERMINATION
- 8.1. Start of User Agreement. This User Agreement starts when you confirm your agreement to it or start using any of the YYG Property and will end once either you or we terminate it, as we explain below.
- 8.2. Your Termination Rights. You may terminate this User Agreement at any time by ceasing all use of the YYG Property at any time.
- 8.3. Our Termination Rights. We may restrict, suspend or terminate this User Agreement and your access to all or any part of the YYG Property and/or Publisher Property at any time without prior notice or liability if: (i) you commit a breach of your obligations or any other term under this User Agreement or violate the rights of any third party intellectual property owner; (ii) if you are an individual, you become bankrupt; (iii) if you are another legal entity, you become insolvent (including being unable to pay your debts as they fall due and/or 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; (iv) we decide not to provide the YYG Property anymore (see below); (v) you act in any way that may be considered threatening, abusive, obscene, racist, xenophobic, sexist, defamatory, or otherwise offensive or illegal towards any member of the YoYo Games staff; (vi) we delete your YoYo Games account in response to a data deletion request from you; or (vii) we delete your YoYo Games account due to sustained periods of inactivity, provided that we will use reasonable efforts to contact you via the contact details you have provided to us prior to terminating your YoYo Games account under this ground.
- 8.4. Effect of Termination. If this User Agreement terminates for any reason then it will cease immediately to have effect (apart from any sections that are necessary for our enforcement of any legal rights and remedies against you). This means that you will no longer have access to the YYG Property and Publisher Property.
- 8.5. Force Majeure. Neither party shall be liable for any failure to fulfil its obligations under this User 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 User 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 section 8.5 (Force Majeure), "Force Majeure" means any cause preventing a party from performing any or all of its obligations that 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), 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.
- 8.6. Ceasing to provide the YYG Property or Publisher Property. If we decide to cease to provide the YYG Property, then you will be notified as soon as reasonably possible. If for any reason Publisher Property that you have validly licensed is taken down from the YYG Platforms, we encourage Publishers to notify you and ensure that the relevant Publisher Property will remain available to valid existing Customers for a period of 30 days (but subject to our ultimate discretion and legal obligations as to whether they can be made available in this way or not). Following that period, the Publisher Property (and/or if appropriate the relevant YYG Property) will no longer be available unless we notify you otherwise.
- The following provisions apply to the fullest extent permitted by law:
- 9.1. Publisher Property and Customer Content. YoYo Games, our group of companies, our employees and our affiliates ("YoYo Group") has no responsibility or liability regarding the Publisher Property or Customer Content and is not liable in particular for any losses, damage, harm, costs, expenses, claims, disputes or proceedings regarding them. Use of Publisher Property or Customer Content is at your own risk and is provided "as is" and "as available" without warranty or representation of any kind. YoYo Group disclaims all warranties, representations and conditions of any kind relating to the Publisher Property and Customer Content, including without limitation any implied warranties of satisfactory quality, merchantability, fitness for purpose or non-infringement of third party rights. In addition, YoYo Group does not warrant or represent that your use of the Publisher Property or Customer Content will be uninterrupted or secure or free from bugs or errors.
- 9.2. Limitation of Liability. Subject to section 9.1 (Publisher Property and Customer Content) above, the maximum and total aggregate liability of the YoYo Group to you in connection with this User Agreement (including in relation to the YYG Property) shall be an amount equal to the net revenue actually received from you (if any) during the preceding calendar year in which the relevant issues occurred. 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 FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS USER AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Nothing in this User Agreement purports to limit or exclude either party's liability: (i) for fraud, fraudulent misrepresentation or willful misconduct; (ii) for death or personal injury caused by that party's negligence; or (iii) to the extent otherwise not permitted by applicable law.
- 9.3. Indemnity. 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, judgements and costs (including legal fees and costs) and expenses whatsoever arising out of or relating to: (i) your use of the YYG Property, Gift Vouchers, Customer Content or Publisher Property; and/or (ii) your material breach of this User Agreement. If claims are brought against us, then you will cooperate fully with us and we reserve the right to take over their defence. You will not settle any such claims without our prior written consent.
- 9.4. Equitable Relief. You agree that any loss, damage or harm you suffer is not irreparable or sufficient, and other remedies will be adequate, such that you are not entitled to injunctive or other equitable relief against us.
- 9.5. Usage at Your Risk; No Warranty. You understand and agree that your use of the YYG Property is at your own risk and that it is provided "as is" and "as available" without warranty or representation of any kind. To the extent permitted by applicable law, we disclaim all warranties, representations and conditions of any kind relating to the YYG Property, including without limitation any implied warranties of satisfactory quality, merchantability, fitness for purpose, title, non-infringement of third party rights and any warranties that may arise from course of dealing or course of performance or usage of trade. In addition, we do not warrant or represent that your use of the YYG Property will be uninterrupted or secure or free from bugs or errors. Your use of the YYG Property and any assets, information or other material obtained via them is at your own discretion and risk. For the avoidance of doubt, nothing in this Agreement limits, excludes or modifies the statutory consumer guarantees or any other implied warranties provided by applicable law.
10. CHANGES TO THIS USER AGREEMENT
- We may change this User Agreement if we consider it necessary (for example to reflect changes in the YYG Property or legal developments). If so, we will make the revised version available online and make reasonable efforts to inform you of changes. It will become legally binding on you once we post it online. If you do not agree to the new version, you must stop using the YYG Property completely - in order to make the YYG Property work properly we need to have everyone using this under the same rules instead of different people having different rules.
11. GOVERNING LAW
- 11.1. If you are resident in the European Union and elsewhere in the world (but not the USA):
- 11.2. If you are resident in the USA:
You and we agree that your use of the YYG Property and Publisher Property, and this User Agreement, and any issues arising out of them, will be governed by and interpreted according to the laws of England and any dispute regarding it will be exclusively under the jurisdiction of the courts of England. In any legal claim under this User Agreement, the side which wins will be entitled to its legal fees and expenses. This does not exclude any mandatorily applicable rules or remedies which would be available to you in a legal claim brought under the law of your EU Member State of residence.
You and we agree that your use of the YYG Property and Publisher Property, and this User Agreement, and any issues arising out of them, will be deemed to be entered into in San Diego County, California and governed by and interpreted according to the laws of the State of California, USA (and, if applicable, US Federal law) without regard to choice of law principles. Any legal claim by you against YoYo Games, to the extent not covered by the Dispute Resolution and Binding Arbitration language below, will be made exclusively in state or federal court located in San Diego County, California, 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. Moreover, you waive any rights to argue that the state and federal courts in San Diego County, California are an improper venue. In any legal claim under this User Agreement, the side who wins will be entitled to its legal fees and expenses.
12. DISPUTE RESOLUTION AND BINDING ARBITRATION
- 12.1. If you have concerns or issues with us, we hope we can resolve them quickly and amicably - you can contact us at help.yoyogames.com. However, we recognise that occasionally there might be legal disputes which are not so easily resolved. In this section we explain what happens if there is a legal dispute.
- 12.2. Informal dispute resolution: we and you both agree to make reasonable and good faith efforts to resolve any dispute between us informally. Normally we would suggest that this dispute resolution period lasts 30 days unless exceptional circumstances exist. If it is not resolved during this time, the next steps depend on where you live. If you are resident in the European Union, you may be entitled to submit a complaint through the Online Dispute Resolution Platform operated by the European Commission, details of which can be found at ec.europa.eu/consumers/odr/.
- 12.3. Dispute resolution next steps: if you live in the European Union or elsewhere in the world (but not the USA): you and we have the legal right to commence legal claims against each other if we consider it necessary. If you bring a claim against YoYo Games, you should address it to email@example.com.
- 12.4. Dispute resolution next steps: if you live in the USA:
- (i) General. In the interest of resolving disputes between you and YoYo Games in the most expedient and cost effective manner, you and YoYo Games agree that any dispute arising out of or in any way related to this User Agreement or your use of the YYG Property or Publisher Property will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this User Agreement or your use of the YYG Property or Publisher Property, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this User Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS USER AGREEMENT, YOU AND YOYO GAMES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS USER AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- (ii) Exceptions. Notwithstanding section 12.4(i) above, nothing in this User Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- (iii) Arbitrator. Any arbitration between you and YoYo Games will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this User Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting YoYo Games. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
- (iv) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice") or, if an address is not available to such party, to the email address of such party as made available on or through the YYG Platforms. YoYo Games' address for Notice is: River Court, 5 West Victoria Dock Road, Dundee, DD1 3JT, Scotland, for the attention of the General Manager. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or YoYo Games may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or YoYo Games must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by YoYo Games prior to selection of an arbitrator, YoYo Games will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by YoYo Games in settlement of the dispute prior to the arbitrator's award; or (3) $15,000.
- (v) Fees. If you commence arbitration in accordance with this User Agreement, YoYo Games will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Diego County, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse YoYo Games for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- (vi) No Class Actions. YOU AND YOYO GAMES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and YoYo Games agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- (vii) Modifications to this Arbitration Provision. Except as otherwise provided in this User Agreement, if YoYo Games makes any future change to this arbitration provision, other than a change to YoYo Games' address for Notice, you may reject the change by sending YoYo Games written notice within 30 days of the change to YoYo Games' address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and YoYo Games.
- (viii) Enforceability. If section 12.4(vi) above is found to be unenforceable or if the entirety of this section 12.4 is found to be unenforceable, then the entirety of this section 12.4 will be null and void.