GameJacket Terms of Service

GameJacket Limited ("GJ")

Terms of Service

Introduction

1. These terms and conditions (“terms”) constitute agreement applying to all dealings between GameJacket Limited (Company No 6407679) whose registered office is at 2nd Floor, The Lexicon, 10-12 Mount Street, Manchester M2 5NT (“GJ”) and you in respect of the Service (as defined below) creating a legally binding agreement. Your use of any or part of the Service shall in the absence of any express agreement be deemed to constitute your agreement to these terms.
2. Service means the service provided by GJ whereby you upload an online game developed and/or owned by you to a server operated by or on behalf GJ, whereupon GJ will provide you with a custom GameJacket .swf file which permits your game file and adverts and/or advertising methods at the discretion of GJ and/or a relevant advertiser, to be loaded into it dynamically. Your unique GameJacket .swf file will remain on such GJ server and thereafter the game will be capable of being downloaded by you and or any other party from such server.
3. GJ Technology means all software and other technology owned or used by GJ in providing the Service including without limitation anything that is used to protect any end user of the relevant game and/or to deliver the audience profiling and/or to serve advertising to end users and/or the website tools of GJ.
4. GJ may at anytime and at its sole discretion modify, delete, suspend or stop using any or part of the Service and/or the GJ Technology without any liability to you.
5. The Service will only be available to you if you use Adobe Flash technology in respect of the game.
6. If you supply more than one game, a separate agreement will apply in respect of each game and these terms shall apply to each such agreement.

Warranties

7. GJ will use warrants to you that it will provide the Service and its other obligations under these terms with reasonable skill and care.
8. You represent and warrant to GJ that:
• You are over 18 years of age;
• You own or have the legal right to use for the purposes of the Services and the GJ Technology all rights and title including without limitation all intellectual property in and to the relevant game;
• Your use of the Service and/or the GJ Technology and/or GJ’s continued use of the Service and/or the GJ Technology in respect of the relevant game shall not infringe the rights including without limitation the intellectual property rights of any third party;
• You own or otherwise have access to the source code of the relevant game;
• No game shall at any time contain anything that might be reasonably considered to cause offence to members of the public generally and/or to any particular person or classes of society or otherwise contradict moral rights or public decency standards

Accounts

9. On registering for the Service you will be required to provide a username and password of your choice. You shall keep this information confidential and not disclose the same to any third parties. You will immediately notify GJ upon you becoming aware that any such disclosure has been made.

Intellectual Property

10. You shall retain all ownership in the relevant game that you may when the game is uploaded to GJ provided that you hereby grant GJ with all appropriate licences (including without limitation relating to intellectual property) necessary to deliver the Services and/or the GJ Technology in respect of the relevant game.
11. All relevant games shall at all times comply with GJ’s editorial policy applicable from time to time.
12. All intellectual property including without limitation all trademarks (including without limitation the name GameJacket) and copyright in or relating to the Services and/or the GJ Technology shall belong to GJ or other third parties and you shall have no right whatsoever whether by licence or otherwise to use or modify in anyway whatsoever any right any of the same (except as may be expressly decided by GJ in its sole discretion) in the provision of the Services and/or the use of the Services by you or any advertiser in accordance with these terms and in particular you shall have no right to reverse engineer or adapt in anyway the application that delivers the advertising and/or the profiling and/or the serving of the game’s files.

Length of Agreement

13. This agreement shall continue until the earlier of:
• you terminating the agreement by deleting the relevant game from public access;
• GJ terminating this agreement by giving you reasonable notice
• GJ terminating this agreement in writing to you without any period of notice (unless GJ decides otherwise in its absolute discretion) if
1. you or any party for whom you are responsible commits or it is reasonably apparent is likely to commit a material breach of this agreement;
2. you become insolvent, have an administrator or receiver or trustee in bankruptcy appointed over all or any part of your assets or if you suffer any other form of insolvency event in any jurisdiction;
3. GJ becomes insolvent, has an administrator or receiver appointed over any or all of its assets or if it suffers and other form of insolvency event in jurisdiction.
14. On termination of this agreement for any reason the right and obligations of each party under these terms shall immediately terminate except those under clauses [12,13,14,15].

Advertising

15. You grant GJ the unrestricted right to use the Services and the GJ Technology for the purposes of inserting advertising of any nature or any form of audience profiling techniques from time to time (together “Advertising”) within or around the use of the relevant game.
16. GJ shall have sole discretion to choose which advertiser or market research company is entitled to use the Advertising and any content relating thereto within the relevant game.
17. You shall not and so far as you are able procure that third parties shall not in any way whatsoever delete, change, suspend, or otherwise interfere with any Advertising within or around a relevant game.
18. You shall not provide any advertising within a relevant game that does not interfere with or otherwise competes with any of the Services and/or the GJ Technology.
19. GJ provides no representation and/or guarantee and/or gives any other form of commitment to you in respect of the amount and/or type of Advertising that may be used within or around the relevant game and/or in respect of any revenue that may be generated from such use of Advertising within the relevant game.

Payment

20. GJ intends to produce revenue from valid revenue-generating advertising impressions, clicks, or transactions displayed and confirmed in the relevant game (together “Ads”) in a way that GJ shall determine for the commercial benefit of you and GJ.
21. You shall receive a payment equal to 50% of the net profit [reasonable costs] before tax that GJ makes from the number of Ads in the relevant game in every calendar month during which the Services and/or the GJ Technology are used in connection with the game (“Royalty”).
22. You shall also be entitled to apply to GJ at anytime for a royalty advance payment of us$1,000 (“Royalty Advance”) in respect of a relevant game. If you do apply for this and GJ believes in its discretion that the game meets the relevant criteria as GJ shall apply from time to time, then GJ shall be granted the exclusive licence from you to use the game for the purposes of the Services and the GJ Technology such that you shall not give any similar rights to any other party or publish or otherwise make the game accessible to the general public through any media whatsoever except as GJ shall decide.
23. If after the period of 6 months from when the exclusivity started the amount of Royalty due and payable to you in respect of that period is less than us$1,000 then GJ’s exclusivity shall no longer apply. However, you will not be required to repay the Royalty Advance.
24. All payments shall be made to you in United States dollars via PayPal or any other payment mechanism that GJ asks you to connect with. Alternatively, GJ may pay you via a cheque or other form of electronic payment to your bank. All payments will be made to you within 90 days of the end of the relevant calendar month. For ease of administration no payment will be made if the amount of Royalty is less than us$100 and any such amount shall be rolled forward and paid in the next month where the Royalty exceeds us$100.

Remedies

25. In addition to any other right GJ may have to terminate this agreement you shall indemnify GJ for any and all losses it may suffer including without limitation loss of profits or any other form of consequential losses in each case whether of a direct or indirect nature arising from any breach of these terms by you.
26. Except as expressly set out in these terms all warranties, terms and conditions whether oral or written, express or implied by law, custom, course of dealings or otherwise including without limitation in relation to the provision or access to any of the Services are hereby excluded.
27. Neither GJ or you excludes or restricts its liability for death or personal injury resulting from its own negligence.
28. GJ shall not be liable to you in contract, tort (including without limitation negligence, misrepresentation or negligent misrepresentation or breach of any statutory duty) or otherwise for:
• Any loss of profit, business, goodwill, contract, revenue, anticipated business or savings in each case whether of a direct or indirect nature;
• Any loss of or damage to or corruption of any relevant game or software or other data;
• Any special or consequential loss or damage of any nature whatsoever in each case whether of a direct or indirect nature.
29. Subject to clauses 21 and 22 the maximum aggregate liability of GJ to you in contract, tort (including without limitation negligence, misrepresentation or negligent misrepresentation or breach of any statutory duty) or otherwise shall be limited £50,000 for any one or series of claims whether or not related to the same incident.
30. In addition to any of the above remedies GJ shall be entitled to suspend any of the Services and/or the use of the GJ Technology in respect of the relevant game if there has been or GJ reasonably suspects you have breached any provision of this agreement.
31. None of the above shall restrict GJ’s rights to seek injunctive or other form of equitable relief in respect of any matter whatsoever.

General

32. This agreement and any valid variation constitute the entire agreement and understanding between you and GJ and supersedes any previous agreement between you relating to the subject matter of this agreement. Each of GJ and you acknowledges and agrees that in entering into this agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this agreement. Nothing in this clause shall operate to limit or exclude any liability for fraud.
33. GJ shall have the right to set off against any payments due and payable to you under this agreement or otherwise any amounts due and payable or any genuine estimate of such amount where any matter has not been agreed or determined by you to GJ under any account whatsoever including without limitation in respect of a breach by you of this agreement.
34. The failure to exercise or delay in exercising a right or remedy provided by this agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
35. A waiver of a breach of any of the terms of this agreement or of a default under this agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this agreement.
36. If GJ is prevented or delayed in the performance of any of its obligations under this agreement by force majeure, being any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party including without limitation any act or omission of any advertiser or broadband or internet provider, GJ shall have no liability to you in respect of any delay in performance or any non-performance of any obligation under this agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to force majeure.
37. You shall not be entitled to assign or sub-contract any or all of its rights, benefits or obligations under this agreement. GJ shall be entitled at its sole discretion to assign or sub-contract any or all of its rights, benefits or obligations under this agreement.
38. If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this agreement which shall remain in full force and effect.
39. Any notice or other communication given under this agreement shall be given to you by GJ via the email address you provide when you open an account with GJ. All email messages shall (subject to confirmation of that email being sent) be deemed received on the day it was sent.
40. Any notice or other communication given under this agreement to GJ by you shall be in writing and sent by prepaid delivery post or prepaid international airmail GJ’s registered office marked for the attention of the managing director. Delivery will be when received by GJ at that address.
41. GJ shall be entitled to vary or delete any provision of this agreement provided it does not place any obligation on you than is greater than set out in this agreement or is not to your material detriment and provided GJ gives you reasonable notice in respect of such change. You shall not be entitled to make any change to this agreement without the express prior written agreement of GJ or expressly agreed by GJ in an email.
42. Nothing in this agreement is intended to or shall operate to create a partnership or create the relationship of employer and employee between GJ and you. You shall have no authority to act in the name or on behalf of or otherwise to bind GJ in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
43. A person who is not a party to this agreement (other than a director of GJ) has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this agreement.
44. This agreement shall be governed by English law and any dispute or claim under or in respect of this agreement shall be subject to the exclusive jurisdiction of the English courts.