DEVELOPER TERMS OF USE
DEVELOPER TERMS OF USE
Developer Terms and Conditions of Service
GAMEGO is happy to be working with you. These Developer Terms and Conditions of Service define the relationship between Gamego LLC. (“GAMEGO”) and you, the person registering for developer services or the organization or entity that has authorized you to register for developer services (in either case, “Company”). By clicking “I Agreed and Accepted” at the end of this agreement, and in creating a developer account, Company agrees that (i) he, she, or it has read, understands, agrees, and accepts these Developer Terms and Conditions of Service and agrees to be bound by these Terms and Conditions of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference (collectively, the “Agreement”); and (ii) if Company is an individual, is at least eighteen (18) years old. If Company does not agree to be bound by this Agreement, Company must not create a developer account nor use the Monetization Services (as defined below) in any way, and Company must check the button indicating non-acceptance. The Monetization Services are offered to Company conditioned on Company’s acceptance without modification of this Agreement. The date of Company’s acceptance of these Developer Terms and Conditions of Service is the “Effective Date” of the Agreement.
GAMEGO may modify the Agreement at any time by posting such modifications to the GAMEGO website (https://gamego.fun/terms) and Company’s account homepage. Modifications will be effective either upon such posting, or, if GAMEGO informs Company by email, when GAMEGO sends that email. Changes will not apply retroactively and generally will become effective 14 days after they are posted or, if emailed, at the time GAMEGO sends that email. If Company does not agree to any modified terms in the Agreement, Company must terminate this Agreement and stop using the Monetization Services.
BACKGROUND
GAMEGO designs and provides online, real-money, tournament-based competitions (“Competitions”) to developers who wish to enable users of their gaming applications to participate in such Competitions. Company has developed a game (“Game”) and wishes to modify such Game to enable the end users who register for such Game (“Users”) to participate in Competitions. GAMEGO is willing to license its software developer kit (together with all content thereof, and all updates, enhancements, modifications, and derivative works thereof, including updates, upgrades or error corrections, the “SDK”) to Company to allow Company to modify its Game to enable Users to participate in Competitions, and to establish and maintain Competitions that are specific to the Game, all in accordance with this Agreement. GAMEGO and Company agree to the following:
1.1. Services. Upon deployment of the Modified Game (defined in Section 2) in a live production environment and subject to the terms and conditions of this Agreement, GAMEGO shall (I) establish and manage Competitions through its proprietary online, hosted monetization platform (“Monetization Platform”) by creating Game tournaments, facilitating User-entry into Competitions, managing and hosting User’s Competition accounts, collecting User entry fees, distributing User payouts, resolving User disputes pertaining to his/her participation in Competitions, and providing all tiers of customer support for User inquiries related to the Competitions (but not related to the Game) and (ii) provide Company with access to reporting data that details activity under such Competitions, including the number of tournaments played, User actions, and related revenue (“Competition Data”) (provision of the Monetization Platform and the Competition Data are collectively referred to as “Monetization Services”). GAMEGO may modify, enhance, update or provide appropriate replacements for Monetization Services or any element thereof at any time, and remove functionalities or features of the Monetization Services at any time, and GAMEGO may suspend or stop providing Monetization Services altogether.
1.2. SDK License. GAMEGO grants to Company during the Term a limited, non-exclusive and non-transferable license to install, run and copy the SDK solely for the limited purpose of modifying the Game to enable GAMEGO to provide Monetization Services with respect to such Game. This license does not include the right to reproduce the SDK, the Monetization Platform or the Monetization Services, or to sublicense, resell, or distribute the foregoing. Company shall not allow any third party to access the Monetization Services. Company shall not itself and shall not allow any third party to (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, user interface techniques or algorithms, file formats or programming or interoperability interfaces of the Monetization Services, the SDK or any portion thereof, (ii) remove any product identification, copyright or other notices, or (iii) modify the Monetization Services or the SDK or incorporate the Monetization Services or SDK into or with other software or services or make derivative works thereof, or (iv) take any action that would cause the Monetization Services or the SDK to be placed in the public domain. All rights not expressly granted to Company herein are expressly reserved by GAMEGO, and nothing in this Agreement will be deemed to grant, by implication or estoppel, a license under any of GAMEGO’s or its licensors’ existing or future rights in or to the SDK, Monetization Platform or Competition Data.
1.3. Suspension. Company may suspend its User’s access to and/or participation in a Game’s Competitions at any time in its sole discretion and upon notice to GAMEGO. GAMEGO may suspend or terminate provision of Monetization Services or part thereof (including without limitation provision of Competitions) at any time in its sole discretion upon notice to Company. Company may display Advertisements preceding, following, or during any virtual currency tournament-based competitions that do not include a real money entry fee. GAMEGO may immediately suspend Monetization Services or part thereof in the event that Company displays any content that promotes or references a third-party product or service or any hyperlinked content (collectively, “Advertisements”) preceding, immediately following, or during any Competition.
1.4. Promotion. GAMEGO and the entities that participate in GAMEGO’s affiliate program (“Affiliates”) may use Company’s name, trademarks and logos solely for the purpose of indicating that Company is a client of GAMEGO in GAMEGO and its Affiliates’ advertising, marketing or other promotional materials, and GAMEGO and its Affiliates may identify the Company and the Game as part of GAMEGO’s network.
1.5. User Information. As a condition to access to Competitions, each User shall be required to read and agree to the User Terms and Conditions of Service provided by GAMEGO from time to time (“Terms of Use”). GAMEGO may suspend or terminate any User’s access to a Competition, in GAMEGO’s sole discretion. GAMEGO may collect and store personally identifiable information from Users in providing Monetization Services, in which case GAMEGO will comply with all applicable laws and its then-current privacy policy (see https://skillz.com/privacy-policy). GAMEGO may collect anonymous aggregated and/or statistical data reflecting Company’s and Users’ use of Monetization Services and may use such data for tracking, reporting and other activities in connection with GAMEGO’s business. GAMEGO will not (I) sell personally identifiable User data to any third party, nor (ii) aggregate or present User data in a form or manner that would permit a third party to identify any individual’s personal information or identify the data as associated with Company or the Game. GAMEGO will endeavor to resolve User disputes regarding participation in Competitions. If there is a dispute between Company and a User apart from Monetization Services, however, GAMEGO is under no obligation to become involved, and Company will manage such dispute or disagreement directly. Company will not make any claims against GAMEGO with respect to Company’s User dealings.
1.6. Exclusivity. From the Effective Date through the later of either (i) the first anniversary of the Effective Date (even if such anniversary occurs after termination of this Agreement); or (ii) ninety (90) days after termination or expiration of this Agreement, Company shall not enter into any agreement with any third party that provides services similar to the Monetization Services or Monetization Platform, nor will Company offer to customers any in-Game competition functionality similar to the Monetization Services or Monetization Platform.
1.7 Restricted Use. To maintain User trust, Company and Company’s affiliates and their respective officers, directors, managers, partners, employees, and agents may not enter tournament-based competitions against Users in the Modified Game.
Company shall modify and upload the Game(s) through the SDK. GAMEGO may review each Modified Game and determine, in GAMEGO’s sole discretion, if the Modified Game is eligible for the Monetization Services. Company represents and warrants that it owns or has all necessary rights to the Game and its content and components (“Content”) in order to allow both parties to perform this Agreement. Company represents and warrants that the Game and Content shall not contain, or contain links to, content which is unlawful, libelous, defamatory, or contrary to public policy.
Company shall provide GAMEGO with access to Company’s Game information and data to enable GAMEGO to perform Monetization Services. Company is responsible for ensuring all Game information is accurate and acknowledges that GAMEGO may rely upon such information without investigation, and is not responsible for any inaccuracies therein, or for GAMEGO’s reliance upon Company’s instructions. Company shall notify GAMEGO immediately if Company receives complaints related to the Monetization Services. If any error results from incorrect input supplied by Company, Company shall be responsible for discovering and reporting such error to GAMEGO and supplying all information necessary to correct such error at the earliest possible time.
“Confidential Information” means this Agreement, and all confidential or proprietary information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) hereunder, including information which is orally or visually disclosed to the Receiving Party. The Receiving Party shall: (a) not use any of the Disclosing Party’s Confidential Information for any purpose except in performance of its rights and obligations hereunder; (b) disclose the Disclosing Party’s Confidential Information only to its employees or contractors who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Section; and (c) treat all of the Disclosing Party’s Confidential Information with the same degree of care as it accords its own Confidential Information of a similar nature, but in no case less than reasonable care. The forgoing obligations shall continue for a period of five (5) years following termination of this Agreement. The Receiving Party shall have no obligation with respect to information of the Disclosing Party which (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party as evidenced by the Receiving Party’s contemporaneous written records; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement or wrongful act by the Receiving Party; or (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order of a court or government agency having jurisdiction, provided that the Receiving Party provides prior written notice to the Disclosing Party of such obligation and the opportunity to oppose such disclosure. Upon written demand of the Disclosing Party, the Receiving Party shall cease using the Disclosing Party’s Confidential Information and return the Confidential Information and all copies, notes or extracts thereof in the Receiving Party’s possession to the Disclosing Party within seven (7) days of receipt of notice.
MONETIZATION SERVICES, COMPETITION DATA AND COMPETITIONS ARE MADE AVAILABLE “AS IS” AND WITHOUT WARRANTY. GAMEGO MAKES NO REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCTS, SERVICES, INFORMATION OR TECHNOLOGY PROVIDED OR MADE AVAILABLE HEREUNDER, INCLUDING WITHOUT LIMITATION, NETWORK FAILURES, THIRD-PARTY PRODUCTS AND SERVICES, SOFTWARE PROGRAMS, AND OUTPUT OR RESULTS OF THE MONETIZATION SERVICES. GAMEGO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. GAMEGO DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
GAMEGO is not responsible or liable for any damage, loss, or injury resulting from, relating to or arising out of (1) use, access, or attempted use or access of Services, Digital Assets, the Software or the Website; (2) downloading any information from the Software, Services or Website; and/or (3) violations of these Terms by other users. GAMEGO has no responsibility to enforce these terms for the benefit of any user.
Some states do not allow the disclaimer of implied warranties; as such the foregoing disclaimer may not apply to you in its entirety.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (1) GAMEGO’’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF EITHER (A) THE FEES PAID AND PAYABLE BY GAMEGO TO COMPANY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE COMPANY’S FIRST CAUSE OF ACTION ARISING HEREUNDER, or (B) $1,000; AND (2) EXCEPT FOR DAMAGES CAUSED BY A BREACH OF SECTION 1.6 OR SECTION 5, for INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND AMOUNTS OWED BY A PARTY PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS), ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY WERE OTHERWISE FORESEEABLE.
7.1. By Company. Company shall defend, hold harmless and indemnify GAMEGO, its officers, directors, employees, agents, representatives and Affiliates from and against any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing persons or entities, and pay all related third party liabilities, damages, judgments, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) to the extent arising out of or relating to Company’s breach of Section 1.6 and/or Content.
7.2. By GAMEGO. GAMEGO shall defend, indemnify, and hold Company, its officers, directors, employees, agents, representatives and Affiliates harmless from and against any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing persons or entities, and pay all related third party liabilities, damages, judgments, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) to the extent arising out of or relating to a third-party claim that the Monetization Platform or SDK infringes or misappropriate such third party intellectual property right. GAMEGO shall have no obligation under this Section with respect to any claim based upon (i) Content; (ii) modification of the SDK by Company; (iii) the combination, operation, or use of the SDK with non-GAMEGO software program(s) or data; or (iii) use of the SDK or Monetization Platform other than in compliance with this Agreement. If any portion of the SDK or Monetization Platform, in the opinion of GAMEGO, is likely to or does become the subject of a claim of infringement or misappropriation, GAMEGO may, at its sole option and expense: (x) modify the SDK or Monetization Platform (as applicable) to be non-infringing, provided that such modification does not materially diminish the terms of usage of the Monetization Platform; (y) obtain for Company a right to continue using the SDK or Monetization Platform at no additional charge; or (z) terminate this Agreement upon notice to Company. This Section represents GAMEGO’s sole liability, and Company’s sole and exclusive remedy, regarding infringement or misappropriation of intellectual property rights.
7.3. Process. The indemnified party shall promptly notify the indemnifying party in writing of any claim covered by this Section. The indemnified party shall give the indemnifying party sole control over the defense and/or settlement of any such claim, except that the indemnifying party shall not agree to any settlement or compromise that (1) would require the indemnified party to make any payments, admit liability, or bear any obligations, or (2) does not include an unconditional release of the indemnified party, unless the indemnifying party obtains the indemnified party’s prior written approval. The indemnified party shall give the indemnifying Party reasonable assistance and cooperation in such defense at the indemnifying party’s expense.
7.4. Other Claims. If any U.S. governmental or regulatory agency, or any consumer resident within the U.S., brings any claim, suit or proceeding against Company alleging that the Monetization Platform (excluding the Game and Content) in the form provided by GAMEGO violates applicable laws, rules or regulations, then GAMEGO, at its own expense, shall defend (or at its option settle) such claim, suit or proceeding, and shall pay any final and non-appealable fine, penalty or judgment entered or settlement against the Company thereon; provided, however, that (a) GAMEGO shall not be responsible for any compromise or settlement made without its prior consent; and (b) GAMEGO shall have no such obligation unless Company gives GAMEGO prompt notice of the claim, the right to control and direct the investigation, preparation, defense and settlement of the claim, and full cooperation (at GAMEGO’s expense), in any such investigation, preparation, defense and/or settlement.
This Agreement shall have an initial term of one (1) year from the Effective Date (“Initial Term”) and shall automatically renew for periods of six months thereafter (each a “Renewal Term”, together with the Initial Term, the “Term”) unless either party provides forty-five (45) days written notice of its intent to terminate the Agreement prior to the expiration of any Initial Term or Renewal Term, in which case this Agreement will terminate upon expiration of the then-current Initial Term or Renewal Term, as applicable. This Agreement may be terminated by either party’s convenience upon thirty (30) days written notice from the other party. This Agreement may be terminated by a party if the other party materially breaches any provision hereof and does not cure such breach within thirty (30) days of receipt of notice describing such breach. Sections 1.6, 6, 7, 8, 9 and 10 and this sentence shall survive termination of this Agreement, as well as any other obligations of the parties that contemplate performance by a party following such termination. Termination of this Agreement shall automatically terminate all licenses granted in this Agreement. Upon termination of this Agreement, Company will return or destroy all materials regarding the Monetization Services and Monetization Platform in its possession or control, including deleting all references to GAMEGO on its website and in marketing materials.
Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither GAMEGO nor Company shall hold itself out as the agent of the other, except as set forth in this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by prepaid first class mail (certified or registered). Notices to GAMEGO shall be sent to GAMEGO LLC., 120 South Broadway Nyack, NY 10960, and notices to Company shall be sent to the name and physical address provided on the account page of Company’s profile or, if no physical address is submitted, then to the email address provided on the account page. Any amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. This Agreement shall be interpreted under the laws of the Commonwealth of Massachusetts without regard to conflict of laws principles dictating another states’ laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. This Agreement may not be assigned by Company without the prior written consent by GAMEGO. This Agreement shall be binding on permitted successors and assigns. This Agreement and its Appendix constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. All rights and remedies, whether conferred hereunder, or by any other instrument or law, unless otherwise expressly stated, will be cumulative and may be exercised singularly or concurrently. The failure of any party to enforce any of the provisions hereof will not be construed to be a waiver of the right of such party thereafter to enforce such provisions. If one or more provisions in this Agreement are ruled entirely or partly invalid or unenforceable by any court or governmental authority of competent jurisdiction, then the validity and enforceability of all provisions not ruled to be invalid or unenforceable shall remain unaffected. EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
