YoYo Games Publisher Agreement

Last updated: 04 June 2019

ABOUT THIS DOCUMENT

Hello! This document explains the terms and conditions that apply when you sell your products and services via YoYo Games’ platforms.

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 Agreement:

  • a) User Agreement: this sets out the terms on which you may use GameMaker and the YYG Platforms.
  • b) Privacy Policy: this sets out how we collect and protect your information.
  • c) IP Rights Policy: this sets out what to do if you think someone is infringing your intellectual property rights.
  • d) Brand Usage Guidelines: this sets out when you are and are not allowed to use our YYG branding.

DEFINITIONS

This document will work better if we explain what we mean when we use certain words or phrases:

"Agreement": means this document and any documents that form part of it or are related to it, as updated from time to time.

"Customer": means any person, company or other legal entity that licenses Publisher Property via the YYG Platforms.

"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 you. It covers any person, company or other legal entity that has accepted this Agreement (whether directly or indirectly via an authorised person).

"Publisher Property": means products or services 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.

"YoYo Games": that’s us. We are YoYo Games Limited (company number 05260718) of Fourth Floor, 61 Southwark Street, London, SE1 0HL, UK (also ‘we’, ‘us’, and ‘our’).

"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 GameMaker.

1. ACCEPTING THIS USER AGREEMENT

  • 1.1. Binding agreement. This Agreement is a legally binding contract between us and you regarding your distribution of Publisher Property using the YYG Platforms, so you will need to agree to this Agreement before you can publish on the YYG Platforms. Please review it carefully. You are welcome to contact us at help.yoyogames.com if you have any questions or comments about the Agreement, but in any event your continuing usage of YYG Platforms will demonstrate your approval of this Agreement.
  • 1.2. Access for adults only. To accept this Agreement and publish on the YYG Platforms, you must have reached the local age of majority in your home territory.

2. PRE-RELEASE ACCESS

  • 2.1. We may make any YYG Platform (or parts of it) 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 PLATFORMS

  • 3.1. Accessing YYG Platforms. In order to access certain YYG Platforms, you may need to have a YYG Platforms account. In addition, some aspects of the YYG Platforms (e.g. if you want to distribute your Publisher Property via the Marketplace) may require you to apply for additional account access which will require you to provide certain details (e.g. your name, address and if required your GameMaker licence details), have any appropriate level of GameMaker licence and be in good standing with YoYo Games. If so, this requirement will be notified to you in advance by the relevant YYG Platform. Your application might be considered by our Customer Support Team and if approved you will be notified by email. We reserve the right to accept or reject applications at our sole discretion. Any personal information provided to us about you will be held and processed under the terms of our Privacy Policy.
  • 3.2. Uploading Publisher Property. If your account application is approved, you can upload Publisher Property using the YYG Platforms upload process. You are responsible for how the Publisher Property operates and how it is displayed and marketed on the YYG Platforms, including compliance with the User Agreement and any other applicable documents, rules or guidance. In particular, we expect you to provide minimum levels of detail regarding what the Publisher Property is, what it does, what technical requirements it has and what security permissions (if any) are required for it to function properly (as detailed in the upload process). We also expect the marketing of the Publisher Property to be accurate and not misleading (for example, any screenshot should match the actual content of the Publisher Property). Finally, we expect Publisher Property to be of satisfactory and merchantable quality, reasonably fit for purpose and in full compliance with any applicable consumer protection laws. We may (but are not obliged to) carry out virus checks and other basic technical checks on Publisher Property. Where we become aware of Publisher Property which is not uploaded, described or marketed properly or is otherwise not in compliance with these requirements or other applicable laws, this may at our discretion be flagged and taken down if necessary.
  • 3.3. Ratings and reviews. Customers will be able to rate and review Publisher Property on the YYG Platforms. These ratings will be a factor in how the relevant Publisher Property appears in the YYG Platforms: 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 placement include your history and past performance on the YYG Platforms. You will not have the ability to amend your ratings.
  • 3.4. Updates. We encourage, but do not require, you to keep your Publisher Property which is software updated and to create new patches and other content over time and to distribute such updates/patches/content for free via the YYG Platforms. We reserve the right to remove any Publisher Property which no longer works with the YYG Platforms from the YYG Platforms.
  • 3.5. Responsibility for Publisher Property. You understand and agree that we are not responsible or liable for Publisher Property in any way, whether within or outside the YYG Platforms. This includes (without limitation) any unauthorised use of your Publisher Property as well as any distribution, sales or other use of Publisher Property from third-party locations (including pirate and peer-to-peer download websites).
  • 3.6. Exporting to other platforms and third party content. If you hold the appropriate level of GameMaker licence, you may export your content to third party platforms such as iOS and Ubuntu as permitted by us (further details can be found at https://www.yoyogames.com/gamemaker). 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.

4. FINANCIAL TERMS

    You must follow the below rules regarding all Publisher Property and the YYG Platforms:
  • 4.1. Business models. Unless we state otherwise regarding specific YYG Platforms, then you can distribute Publisher Property for free on the YYG Platforms, or you can charge a fee for it – it’s up to you. If you do decide to charge a fee, then it will be in US Dollars (USD). We have a series of price points you can choose from – currently, that includes the price points of USD 1 (which is the minimal price point), 2, 3, 4 and so on. We are not responsible for any currency or conversion costs or issues. Customers will be able to pay for Publisher Property using the YYG Platforms via PayPal or the services of our designated payment processor(s), as we may decide and update from time to time.
  • 4.2. Other forms of monetisation. If you decide to distribute Publisher Property for free, then you cannot have an alternative or enhanced edition outside of the YYG Platforms for which you do charge money. Nor can you directly or indirectly mention, request or accept donations for Publisher Property.
  • 4.3. Revenue calculation. If any Publisher Property is licensed for money, then once gross revenue has been actually received from Customers in relation to the Publisher Property (“Gross Revenue”), we will deduct: (i) any applicable VAT or other consumption or sales taxes (see below) due in the Customer’s country; (ii) Customer returns, refunds or charge backs; and (iii) bank transfer and/or conversion fees (if applicable) (“Deductions”). Once the Deductions are deducted from Gross Revenue, the resultant revenue is split 70% to you and 30% to us.
  • 4.4. Payment terms. Any revenue due to you will be displayed to you via your YYG account. We will use reasonable efforts to make any revenue payments due to you 60 days following the last day of the first month in which you have earned revenue of at least $100. We reserve the right to change this payment period on written notice to you (for example, if we encounter difficulties with PayPal which means 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. If in any monthly period your balance is less than $100, we will hold it until a month when it exceeds that amount. If you have a balance of less than $100 for more than eight consecutive months, we will pay you the balance. We will not pay you any interest on any sums we hold for you under this section.
  • 4.5. 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 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, we will pay you the balance. We will not pay you any interest on any sums we hold for you under this section.
  • 4.6. Tax compliance. You are ultimately responsible for the payment of any VAT or other taxes regarding licensing of your Publisher Property on the YYG Platforms. However, if you are registered for VAT (or their regional equivalent) and you provide us with the necessary details during your YYG Platforms setup process, then unless otherwise stated we will charge Customers VAT (or their regional equivalent) on your behalf and provide you with details of the amount charged and paid. We provide this service to make things easier for you and other Publishers, but, again, ultimately tax compliance is your responsibility.
  • 4.7. Withholding tax. Some countries have tax treaties that 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 onto, or pay to a tax authority, withholding sums from revenue otherwise due to you. If so, we will notify you. We will provide reasonable assistance but ultimately it is your responsibility to deal with any withholding tax issues.

5. PROHIBITED ACTIONS

  • 5.1. Conduct. You must follow the rules outlined in section 6 (Prohibited Actions) of the User Agreement regarding all Publisher Property and the YYG Platforms.

6. CUSTOMERS

  • 6.1. Customer care generally. You are solely and exclusively responsible for your relationship with Customers of your Publisher Property, including in relation to maintaining, servicing, updating and supporting the Publisher Property. You may not refer to us as being involved with your Publisher Property nor refer to us in any other way (including to suggest that we are in any way liable or responsible for your Publisher Property) except as permitted in this Agreement. You are solely and exclusively responsible for any Customer queries, complaints, disputes or other issues regarding your Publisher Property. Please ensure that you make your contact information reasonably accessible to Customers. We are only responsible for any Customer matters relating directly to the YYG Platforms.
  • 6.2. Customer Licences. When a Customer validly obtains access to Publisher Property via the YYG Platforms, you agree to automatically and immediately grant that Customer a non-exclusive, perpetual and worldwide licence over that Publisher Property to use it via authorised means for its intended and authorised purposes. At a minimum this must allow Customers to include that Publisher Property as embedded components of digital games and associated marketing, but you may allow additional uses by providing your own End User Licence Agreement (“EULA”) if you choose to do so.
  • 6.3. EULA. If you decide to provide your own EULA, your EULA must be between the Customer and you and explain clearly what Customer can and cannot do with Publisher Property, provided that at a minimum this must allow the use detailed in section 6.2 (Customer Licences) above. We will have no responsibility or liability for any breach of the EULA or misuse of Publisher Property by a Customer, a third party or you and you must not seek to pass any liabilty or responsibility for Publisher Property or otherwise to YoYo Games. Any such EULA must not materially conflict with this Agreement or the User Agreement. You must comply with any laws applying to the Publisher Property and you cannot limit your liability regarding them beyond what applicable law permits.
  • 6.4. Refunds. If a Customer makes a refund request regarding your Publisher Property, we will review that request and make a decision at our sole discretion regarding whether a return/refund/other remedy should be offered to that Customer. If any refunds/returns are granted, the appropriate amount will be deducted from your current and/or future YYG account balance and the Customer will lose all rights to the relevant Publisher Property. We are not however responsible or liable for ensuring that the Customer deletes any local copies of, or ceases to use, the relevant Publisher Property.

7. DATA PRIVACY

  • 7.1. Your privacy. Please see our Privacy Policy (which may be updated from time to time) for details regarding our usage and protection of personal information in relation to the YYG Platforms.
  • 7.2. Customer privacy. You are responsible for protecting the data privacy and legal rights of Customers when they are accessing or using your Publisher Property. If appropriate, you must provide them with a legally adequate privacy policy/notice which must be no less protective than our Privacy Policy. You can only use the information you collect for the limited purposes authorised by Customers and in a secure and legally compliant manner. We are not responsible or liable in any way for any of these matters or for ensuring that you comply with applicable data privacy laws. When you publish your Publisher Property on a third party platform (for example, iOS) we may collect certain non-personally identifiable metrics and analytics from your Customers (for example, how long they use the product for) in order to improve our products and services – you must appropriately inform your customers (via your privacy policy, EULA or otherwise) that we do this.

8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

  • 8.1. Ownership of Publisher Property. As between us and you, you own or validly license your Publisher Property and all Intellectual Property Rights in it. You grant us a non-exclusive, transferable, worldwide and royalty-free licence over: (i) relevant Publisher Property; (ii) your name, brand and logo; and (iii) any Intellectual Property Rights in any of them, so that we can copy, modify, use, create derivative works from, transmit, publish, sell and distribute them as appropriate for the purposes of: making the Publisher Property available via the YYG Platforms; marketing the Publisher Property and the YYG Platforms; and for our own internal and technical arrangements regarding making available the Publisher Property and YYG Platforms.
  • 8.2. Ownership of YYG Platforms. We are the sole and exclusive owner of the YYG Platforms and all Intellectual Property Rights in them, including without limitation their name, trademarks and logos. We grant you a non-exclusive, revocable, worldwide and royalty-free licence to use and access the YYG Platforms for the purpose of distributing your Publisher Property in accordance with this Agreement and the User Agreement. All rights not expressly licensed or granted to you in the YYG Platforms are expressly reserved to us.
  • 8.3. Open source software. You represent and warrant to us that any open source software of any kind contained in your Publisher Property will be properly licensed from the relevant person(s) and that you have full ability to use that open source software. You are solely responsible for making sure that you comply with any licence terms or other requirements as part of your use of that open source software (for example, including proper disclosure and/or attributions regarding such software).
  • 8.4. 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 license available at https://www.yoyogames.com/legal/thirdpartysoftware (collectively, the “Third Party Software Terms”). By accepting this Agreement: (i) you acknowledge that any representations and warranties set forth herein 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 will: (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.
  • 8.5. Takedown requests by you. Subject to section 8.7 (Customer Remedies) below, if you wish to remove your Publisher Property from the YYG Platforms this is your responsibility and you are responsible for any consequences (including to Customers) arising from your decision to do this. We encourage, but do not require, you to provide Customers with 30 days’ notice in advance before removing the Publisher Property from the YYG Platforms.
  • 8.6. Other takedown requests. Subject to section 8.7 (Customer Remedies) below, we reserve the right (but are not obliged) to monitor the Publisher Property and related materials on the YYG Platforms, which we can take down temporarily or permanently without any liability, if we become aware that any Publisher Property fails to comply with the requirements of section 7.7 (Content Removal) of the User Agreement. We may also remove Publisher Property from the YYG Platforms as further detailed in our IP Rights Policy.
  • 8.7. Customer remedies. If Publisher Property is taken down from the YYG Platforms for any reason within 1 (one) year of it being uploaded to the YYG Platforms, then we reserve the right to issue, or to require you to issue, a full refund to Customers at your cost.
  • 8.8. 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.

9. TERM AND TERMINATION OF THIS AGREEMENT

  • 9.1. Start date. This Agreement starts when you approve it, and it will end once either you or we terminate it, as we explain further in the rest of this section.
  • 9.2. Your termination rights. You may terminate this Agreement by ceasing to use the YYG Platforms and removing your Publisher Property from the YYG Platforms.
  • 9.3. Our termination rights. We may terminate this Agreement at any time immediately upon written notice to you if: (i) you commit a breach of your obligations or warranties or any other term under this Agreement (or any number of individual breaches which in our reasonable view amounts to a material breach) and, if the breach is capable of remedy, you fail to remedy it during the period of 30 (thirty) days starting on the date of receipt of notice from us requiring it to be remedied; (ii) you become bankrupt or 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; (iii) we decide not to provide the YYG Platforms any more (see clause 10 (End of YYG Platforms) below); (iv) 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; (v) we delete your YoYo Games account in response to a data deletion request from you; or (vi) 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.
  • 9.4. Effect of termination on Agreement. If this Agreement terminates for any reason, then this Agreement will cease immediately to have effect (apart from any sections that are necessary for enforcement of any existing legal rights and remedies) and each party shall return all property of the other party to that party, except as required otherwise in this Agreement.
  • 9.5. Impact of termination on Publisher Property. After termination of this Agreement, and unless we agree otherwise with you, your Publisher Property: (i) will as soon as reasonably practicable be made unavailable for any Customers to use for the first time; (ii) will remain available to existing Customers for a period of 30 days to access them (unless we decide otherwise, including to require a longer or shorter period); and (iii) will be retained by us in order to fulfil any existing obligations to Customers with any necessary licence rights for that purpose.
  • 9.6. 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 9.6 (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, lockouts 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 subcontractors), industrial action by employees of any providers of electrical power, failure of technical facilities, fire, flood, or storm or default of suppliers or subcontractors).

10. END OF YYG PLATFORMS

    If for any reason we decide to cease to provide the YYG Platforms (or any part of them), then: (i) we will notify you as soon as is reasonably possible; and (ii) the Publisher Property will remain available to existing Customers for a period of 30 days to download and access (unless we decide differently, including to require a longer or shorter period); and (iii) following that period, ordinarily, the Publisher Property (and if relevant the relevant YYG Platforms) will no longer be available unless we notify you otherwise, and this Agreement will terminate.

11. CONFIDENTIALITY

  • 11.1. In this Agreement, “Confidential Information” means this Agreement and any commercial or technical information in whatever form that 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”.
  • 11.2. 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. The receiving party shall make no commercial use of the Confidential Information, except for the Purpose.
  • 11.3. Confidential Information may be disclosed if and to the extent:
    • (i) 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;
    • (ii) 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;
    • (iii) the information has entered the public domain through no fault of the receiving party;
    • (iv) the information was previously disclosed to the receiving party without any obligation of non-disclosure; or
    • (v) the disclosing party has given its consent in writing.
  • 11.4. Without prejudice to the generality of clause 11.2, 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.
  • 11.5. This clause 11 (Confidentiality) 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.

12. REPRESENTATIONS AND WARRANTIES

  • 12.1. Mutual representations and warranties. We represent and warrant to each other that each of us have the power and authority to enter into this Agreement and fully perform all obligations in this Agreement.
  • 12.2. Your representations and warranties. You represent and warrant the following:
    • (i) you own or validly license your Publisher Property 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 Publisher Property, you represent and warrant that you have the right to distribute those third-party materials and have complied with any terms or restrictions;
    • (ii) Your Publisher Property does not violate the privacy rights, publicity rights, contract rights, Intellectual Property Rights or any other rights of any person;
    • (iii) Your Publisher Property will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties and you agree to pay all monies owing to any person as a result of posting your Publisher Property on the YYG Platforms;
    • (iv) Your Publisher Property will at all times comply with the terms of this Agreement and the User Agreement (in particular the rules outlined in section 6 (Prohibited Actions) of the User Agreement); and
    • (v) you will use your Publisher Property and the YYG Platforms only for purposes that are expressly permitted by this Agreement and by any applicable laws, regulation or industry practice.
  • 12.3. No other warranties. Your use of the YYG Platforms is at your own risk and the YYG Platforms are 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 YYG Platforms, 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 Platforms will be uninterrupted or secure or free from bugs or errors. Your use of the YYG Platforms and any assets, information or other material obtained via them is at your own discretion and risk.

13. LIMITATION OF LIABILITY

  • 13.1. The maximum and total aggregate liability of 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 all revenue actually paid by YoYo Group to 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 forgoing limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Nothing in this Agreement 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.
  • 13.2. 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.

14. INDEMNIFICATION

    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, costs (including legal costs) and expenses whatsoever, including reasonable legal fees and costs, arising out of: (i) your Publisher Property; (ii) any use by you of Intellectual Property Rights or Confidential Information belonging to YoYo Group that has not been expressly authorised by YoYo Group pursuant to this Agreement; (iii) any actual or alleged infringement by you of third-party Intellectual Property Rights, misuse of Confidential Information or breach of any Third Party Software Terms; and/or (iv) any alleged or actual breach by you of this Agreement. You shall promptly notify us as soon as you become aware of any third-party claims against you regarding the 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.

15. CHANGES TO THIS AGREEMENT

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

16. GENERAL

    (i) This Agreement is a commercial bargain agreed on an arms’ length basis following negotiation by the parties. Each party has had the opportunity for legal advice prior to executing this Agreement. (ii) This Agreement does not create any exclusive relationship between the parties nor any partnership, joint venture, employment or agency between them. (iii) No failure or delay by a party to exercise any right under this Agreement or at law will be a waiver of that right. (iv) No assignment, novation or transfer of this Agreement is possible by Publisher without YoYo Games’ prior written consent. (v) Only a party to this Agreement, as well as members of the YoYo Group, can enforce it (whether under the UK’s Contracts (Rights of Third Parties) Act 1999 or otherwise). (vi) If any part of this Agreement is found to be invalid or unenforceable, that will not affect the rest of the Agreement. (vii) This Agreement can be executed in multiple counterparts. (viii) Any notices under this Agreement must be in English and sent by email, for the Publisher to its account email address and for YoYo Games to help.yoyogames.com. (ix) This Agreement and its accompanying YoYo Games legal documents constitute the whole agreement between the parties and supersedes all previous agreements between them regarding its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this Agreement will limit any liability for fraud. (x) Each party is responsible for its own costs regarding this Agreement. (xi) The parties agrees that the UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement. (xii) This Agreement and any dispute, claim or matter (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England will have exclusive jurisdiction over any dispute, claim or matter (whether contractual or non-contractual) that arises out of or in connection with this Agreement or its subject matter or formation. Each party waives, to the fullest extent permitted by applicable law, any objection to such choice of exclusive governing law and jurisdiction and any claim that any such action or proceedings brought in such court has been brought in an inconvenient forum.