YoYo Games Platforms User Agreement
Last updated: 23/05/2018
ABOUT THIS DOCUMENT
This document explains the legal terms and conditions that apply when you use the YYG Platforms (as explained below).
OTHER LEGAL DOCUMENTS
This document will work better if we explain what we mean when we use certain words or phrases:
“Customer”: means any person or company or other legal entity that uses YYG Platforms (including you).
“Customer Content”: means any content that Customers upload, post or transmit to or through the YYG Platforms including, without limitation, any text, photographs and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret and copyright laws, and excludes any and all content provided through the YYG Platforms by YoYo Games.
“Publisher”: means the person (which includes any person, company or other legal entity) that publishes any Publisher Property. A Publisher may only be a person that reached the age of majority in his country of residence.
“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, music, text) which are intended to be integrated with interactive entertainment products; and/or (iii) services (such as graphic design or audio engineering) offered to Customers. Publisher Property includes Customer Content posted to the YYG Platforms by other Customers.
“Intellectual Property Rights”: means any and all copyright, trademarks, service marks, trade dress, brand names, and logos (and all goodwill embodied therein), 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, moral 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.
“User Agreement”: means this document and any documents that form part of it or are related to it, as updated from time to time.
“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, products or services from time to time including (but not limited to) GameMaker Studio 2, GameMaker: Studio, GameMaker: Marketplace and YoYo Games websites (including the YoYo Games GameMaker Community / forums), as updated, replaced or expanded from time to time.
1. ACCEPTING THIS USER AGREEMENT
- 1.1. Acceptance of 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 the YYG Platforms and Publisher Property accessed via them, including but not limited to your use of GameMaker, licensing of software products or services via the GameMaker: Player or GameMaker: Marketplace. Please review it carefully. You are welcome to contact us at https://help.yoyogames.com if you have any questions or comments about this User Agreement, but in any event your continuing usage of YYG Platforms will demonstrate your approval of this User Agreement.
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): the 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 THE YYG PLATFORMS
- 3.1. Access Requirements. In order to access certain YYG Platforms and obtain access to certain Publisher Property, you may need to open a YYG Platforms account, have an appropriate level of GameMaker license (which will be notified to you in relation to appropriate YYG Platforms) and be in good standing with YoYo Games. We may also implement verification and Digital Rights Management technology if we consider it necessary. You will need an Internet connection in order to access YYG Platforms and Publisher Property. System requirements for YYG Platforms and (where available) for Publisher Property will be provided on the applicable YYG website.
- 3.2. Use of YYG Platforms and Publisher Property. You are granted a revocable, limited, worldwide and royalty-free license to use the YYG Platforms for authorised purposes, including to browse, locate, access and use Publisher Property for use with YYG Platforms. Some Publisher Property may be created by YoYo Games and others may be created by third party Publishers. Some may be made available to you for free while others may be licensed for money. You must access the YYG Platforms solely through authorised means (e.g. via GameMaker or via our websites or other methods we may roll out over time) 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. Other Uses of Publisher Property. 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). In no circumstances are you permitted to, at the request of a third party, export that third party’s content. Nor can you request a third party who holds an appropriate level of GameMaker license to carry out such activities on your behalf.
- 3.4. Responsibility for Publisher Property. Publishers are responsible for how their Publisher Property is displayed and marketed via the YYG Platforms. We take no responsibility or liability for Publisher Property or how they are displayed or marketed, what they do or do not contain or how they perform. All such issues should be addressed further in the relevant EULA (which will be either the YoYo Games Platforms Default Publisher EULA or the relevant publisher’s own EULA, depending on which the relevant Publisher has chosen to apply) and in any event are a matter for you and the Publisher.
- 3.5. Your Responsibility. You are solely responsible for your own use of the YYG Platforms and for any breach of your obligations under this User Agreement.
- 3.6. Updates. From time to time, the YYG Platforms or Publisher Property which is software (“**Publisher Software**”) may be subject to updates (such as bug fixes, patches, new versions and enhancements). You can set in GameMaker whether to download updates to Publisher Software automatically or manually. Please note we may remove any Publisher Property which no longer works with the YYG Platforms from 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 Platforms without any notice to you. YoYo Games reserves the right to discontinue some or all of the features of the YYG Platforms 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 Platforms. If you are dissatisfied with any changes to the YYG Platforms, then your sole option is to discontinue or terminate your use of the YYG Platforms as described herein.
- 3.9. Compliance. You are responsible for compliance with all local laws, regulation and industry practice when accessing and using the YYG Platforms and any Publisher Property.
- 3.10. Ratings. You may be able to rate and review applicable 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 about the Publisher Property.
4. PROHIBITED ACTIONS
You must follow the below rules regarding all Publisher Property and the YYG Platforms:
- i. Only use them for any personal or commercial purposes authorised under this User Agreement.
- ii. Do not copy, modify, merge, distribute, translate, reverse engineer, decompile, disassemble or create derivative works of: (i) Publisher Property (unless specifically agreed otherwise with the relevant Publisher); or (ii) the YYG Platforms.
- 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 tunnelling, 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 do or say anything which is or may be considered racist, xenophobic, sexist, defamatory or otherwise offensive or illegal in connection with the YYG Platforms or Publisher Property.
5. INTELLECTUAL PROPERTY AND OWNERSHIP
- 5.1. Ownership of Publisher Property. Each Publisher is the owner or licensor of its Publisher Property and all Intellectual Property Rights in them. The relevant EULA (which will be either the YoYo Games Platforms Default Publisher EULA or the relevant publisher’s own EULA, depending on which the relevant Publisher has chosen to apply) will set out what rights you are granted in that Publisher Property. Publisher Property is licensed, not sold.
- 5.2. Ownership of YYG Platforms. We are the sole and exclusive owner of the YYG Platforms and all other YoYo Games products and services and all Intellectual Property Rights in them, including without limitation their name, trademarks and logos. All rights not expressly licensed or granted to you in the YYG Platforms are expressly reserved to us. YYG Platforms are licensed not sold. You may not distribute, sublicense, rent, lease or lend the whole or any part of the YYG Platforms.
- 5.3. Customer Content. YoYo Games offers Customers the ability to submit Customer Content to or transmit Customer Content through the YYG Platforms. YoYo Games does not pre-screen any Customer Content, but reserves the right to remove, disallow, block or delete any Customer Content in its sole discretion. YoYo Games does not guarantee the accuracy, integrity, appropriateness, availability or quality of any Customer Content, and under no circumstances will YoYo Games be liable in any way for any Customer Content. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR CUSTOMER CONTENT AND SUBMITTING YOUR CUSTOMER CONTENT TO THE YYG PLATFORMS DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS. By submitting Customer Content, you grant YoYo Games a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute (“Use”) your Customer Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed for the purposes of (i) advertising, marketing and promoting YoYo Games and the YYG Platforms; (ii) displaying and sharing your Customer Content to other Customers; and (iii) providing the YYG Platforms as authorized by this User Agreement.
- You further grant YoYo Games a royalty-free license to Use your user name, image and likeness to identify you as the source of any of your Customer Content. You must not post any Customer Content on or through the YYG Platforms or transmit to YoYo Games any Customer Content that you consider to be confidential or proprietary. Any Customer Content posted by you to or through the YYG Platforms or transmitted to YoYo Games will be considered non-confidential and non-proprietary, and treated as such by YoYo Games, and may be used by YoYo Games in accordance with this User Agreement without notice to you and without any liability to YoYo Games. For the avoidance of doubt, YoYo Games will not be liable for any unauthorized use of Customer Content by any Customer.
- You Must Have Rights to the Content You Post. You must not post any Customer Content to the YYG Platforms if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the Customer Content you intend to post to the YYG Platforms. You represent and warrant that: (i) you own the Customer Content posted by you on or through the YYG Platforms or otherwise have the right to grant the licenses set forth in this User Agreement; (ii) the posting and Use of your Customer Content on or through the YYG Platforms does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, including, but not limited to, the rights of any person visible in any of your Customer Content; (iii) the posting of your Customer Content on the YYG Platforms 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 (iv) the posting of your Customer Content on the YYG Platforms does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of posting your Customer Content on the YYG Platforms.
- By posting Customer Content to or through the YYG Platforms, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such Customer Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your Customer Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Customer Content you post to or through the YYG Platforms.
- Feedback. If you choose to contribute by sending YoYo Games or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to YoYo Games, you agree that:
- YoYo Games has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and YoYo Games is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant YoYo Games perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- 5.4. 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, in the applicable Third Party Software license (collectively, the “Third Party Software Terms”). By accepting this Agreement, (a) you acknowledge that the representations and warranties set forth herein do not apply to Third Party Software. YoYo Games will pass through to you, to the fullest extent possible, the warranties YoYo Games has received from the licensors as they relate to such Third Party Software, all subject to the applicable Third Party Software terms set under YoYo Games agreement with such third party software licensors; and (b) you undertake, represent and warrant, and you procure that any third party acting on your behalf: i) will comply with such Third Party Software Terms, and ii) will include all terms and conditions, obligations and disclaimers set out in the applicable Third Party Software Terms in your Publisher Property and in the EULA (as required under section 6.2 of this Agreement), in the form attached hereto and available at https://www.yoyogames.com/legal/thirdpartysoftware
- 5.5. No Monitoring. We do not accept any obligation to monitor, screen, review, flag, filter, moderate or remove any Publisher Property or other content from the YYG Platforms (though we reserve the right to undertake such actions if necessary).
- 5.6. Takedown Right. We reserve the right to remove Publisher Property from the YYG Platforms temporarily or permanently for any reason, in our sole discretion, including but not limited to, if we are (i) requested to do so by its Publisher; or (ii) required by a competent law enforcement authority; or (iii) notified or become aware that the Publisher Property or any part of it:
- 5.6.1. Breaches the Intellectual Property Rights or any other rights of us or any third party;
- 5.6.2. Breaches any applicable law or is subject to an injunction;
- 5.6.3. Is pornographic, inappropriate or otherwise breaches any of our rules;
- 5.6.4. Is being distributed by its Publisher improperly or illegally;
- 5.6.5. May create liability for YoYo Games;
- 5.6.6. Is of inadequate quality;
- 5.6.7. Contains any virus, malware, or other harmful software or may have an adverse impact on YoYo Games; or
- 5.6.8. Breaches this User Agreement or the relevant EULA or any other relevant legal document.
- If you have any concerns that any Publisher Property breaches any of these requirements, please contact us at https://help.yoyogames.com.
- 5.7. Ceasing to provide Publisher Property or YYG Platforms. If we decide to cease to provide the YYG Platforms, 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 Platforms) will no longer be available unless we notify you otherwise.
6. TERM AND TERMINATION
- 6.1. Start of User Agreement. This User Agreement starts when you confirm your agreement to it or start using the YYG Platforms and will end once either you or we terminate it, as we explain below.
- 6.2. Your Termination Rights. You may terminate this User Agreement by ceasing to use the YYG Platforms at any time.
- 6.3. Our Termination Rights. We may restrict, suspend or terminate this User Agreement and your access to all or any part of the YYG Platforms 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; or (iv) we decide not to provide the YYG Platforms anymore (see below). YoYo Games may further terminate this User agreement immediately for any other reason with or without notice to you, using the email address associated with your account credentials.
- 6.4. 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 Platforms or Publisher Property.
- 6.5. 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 clause, “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.)
7. LIABILITY. The following provisions apply to the fullest extent permitted by law:
- 7.1. Limitation of Liability. The maximum and total aggregate liability of us (YoYo Games), our group of companies, our employees and our affiliates (“YoYo Group”) to you in connection with this User Agreement 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.
- 7.2. 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 your use of the YYG Platforms, Vouchers or Publisher Property, including your material breach of this User Agreement.
- 7.3. Usage at Your Risk; No Warranty. You understand and agree that your use of the YYG Platforms is at your own risk and that it is provided “as is” and “as available” without warranty or representation of any kind. To the extend permitted by applicable law, 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 or non-infringement of third party rights. 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. 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.
8. CHANGES TO THIS USER AGREEMENT
- We may change this User Agreement if we consider it necessary (for example to reflect changes in the YYG Platforms or legal developments). If so, we will make the revised version available online and contact you to inform you of changes. You will be deemed to accept any changes to this User Agreement after the effective date of such changes by your continued use of the YYG Platforms. If you do not agree to the new version, you must stop using the YYG Platforms.
9. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
- 9.1. Respect of Third Party Rights. YoYo Games respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Customers to do the same. Infringing activity will not be tolerated on or through the YYG Platforms.
- 9.2. Repeat Infringer Policy. YoYo Games’s intellectual property policy is to (i) remove or disable access to material that YoYo Games believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the YYG Platforms; and (ii) remove any Customer Content or Feedback uploaded to the YYG Platforms by “repeat infringers.” YoYo Games considers a “repeat infringer” to be any Customer that has uploaded Customer Content or Feedback to or through the YYG Platform and for whom YoYo Games has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such content. YoYo Games has discretion, however, to terminate the account of any Customer after receipt of a single Notification of Claimed Infringement (as defined below) or upon YoYo Games’s own determination.
- 9.3. Procedure for Reporting Claimed Infringement. If you believe that any Customer Content made available on or through the YYG Platforms has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by YoYo Games with the Customer alleged to have infringed a right you own or control, and you hereby consent to YoYo Games making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit YoYo Games to locate the material;
- Information reasonably sufficient to permit YoYo Games to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- 9.4. Designated Agent Contact Information. YoYo Games’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
- Via Ticket: https://help.yoyogames.com
- Via U.S. Mail: Helpdesk Team, YoYo Games Ltd, River Court, 5 West Victoria Dock Road, Dundee, UK DD1 3JT
- 9.5. Counter Notification. If you receive a notification from YoYo Games that material made available by you on or through the YYG Platforms has been the subject of a Notification of Claimed Infringement, then you will have the right to provide YoYo Games with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to YoYo Games’s Designated Agent through one of the methods identified in Section 9.4 and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which YoYo Games may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.4 above or an agent of such person.
- 9.6. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- 9.7. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to YoYo Games in response to a Notification of Claimed Infringement, then YoYo Games will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that YoYo Games will replace the removed content or cease disabling access to it in 10 business days, and YoYo Games will replace the removed content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless YoYo Games’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the Customer from engaging in infringing activity relating to the material on YoYo Games’s system or network.
- 9.8. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
- [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [YoYo Games] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
- 17 U.S.C. § 512(f).
- 9.9. YoYo Games reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- (i) Each party will keep any confidential information of the other party confidential and secure and will not disclose or communicate it to any third party, except its professional representatives or advisers or as required by law. (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 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 Purchaser to its account email address and for YoYo Games to https://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) 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. You may also 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/.