Marketplace Creator Terms and Conditions
This Agreement, by and between Tipsy Schemers LLC and Seller, is effective as of the Effective Date set forth in the Order Form. Each of Tipsy Schemers LLC and Seller may be referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms not defined herein shall have the meaning set forth in the Order Form.
BACKGROUND
Tipsy Schemers LLC provides a role playing game platform (the “Role Platform”), including a marketplace (the “Marketplace”) where creators of role playing games can market and sell their respective games and related digital content to members of Tipsy Schemers LLC’s online community of game enthusiasts (each a “Customer”). Seller is creator and/or owner one or more role playing games identified in the Order Form (the “Game(s)”), including related rules, images, text, materials and digital content provided by Seller in connection with the Game (collectively, “Seller Content”). Seller and Tipsy Schemers LLC desire to work together to make Seller’s Game(s) available for potential Customers to purchase and through the Marketplace and play on the Role Platform, in accordance with the terms and conditions set forth in this Agreement.
The Parties hereby agree as follows:
1. Marketplace Services; Licenses.
1.1. Marketplace Services. Tipsy Schemers LLC will use commercially reasonable efforts to market and promote the Games through the Marketplace, and to create and maintain on the Role Platform a custom game room for each of Seller’s Games (each a “Game Room”). If specified in an executed Order Form, Tipsy Schemers LLC will also create and maintain additional character sheets, skinned visual themes matching the respective Game, and/or additional or supplemental gameplay materials (collectively “Developed Content”). Developed Content shall be owned by Seller as Seller Content as set forth in Section 1.3. When a Customer places an order for a Game on the Marketplace, Tipsy Schemers LLC will process and collect payment for such order from Customer, and provide such Customer with access to the Game, Game Room, and Developed Content, as applicable.
1.2. License Grants.
(a) By Seller. Seller hereby grants to Tipsy Schemers LLC a limited, non-exclusive, non-transferable (except as permitted in Section 9.4 below) license: (i) to market, promote, sublicense, sell, use, display and reproduce the Game(s) and associated Seller Content (including without limitation all Developed Content), through the Marketplace solely for the purposes of selling or sublicensing use of the Game(s) to Customers under this Agreement; (ii) to create Developed Content and other derivative works of such Games, provided that such Developed Content and other derivative works are original works of authorship of Tipsy Schemers LLC; and (iii) to use Seller’s name, logo, and other trademarks of Seller (the “Seller Marks”), and any associated marketing materials or collateral provided by Seller, to market and promote the Game(s) and the Marketplace, including on Tipsy Schemers LLC’s website and the Role Platform and in press releases and other promotional materials. Seller hereby grants each Customer who purchases a Game through the Marketplace a perpetual, non-terminable, nonexclusive, fully paid up license to use such Game and associated Seller Content.
(b) By Tipsy Schemers LLC. Tipsy Schemers LLC hereby grants to Seller a limited, non-exclusive, non-transferable, license: (i) to access and use the Marketplace as reasonably necessary to facilitate Sales of the Game(s) and otherwise fulfill its obligations under this Agreement, and (ii) to use Tipsy Schemers LLC’s name, logo and other trademarks of Role (the “Role Marks”) to market and promote the Game(s) and the Marketplace, including on Seller’s website and in press releases and other promotional materials.
1.3. Intellectual Property Ownership. As between Seller and Tipsy Schemers LLC, the Game(s), Seller Content (including Developed Content), Seller Marks, and all worldwide Intellectual Property Rights in each of the foregoing, are the property of Seller. To the extent Tipsy Schemers LLC creates any Developed Content on behalf of Seller pursuant to an executed Order Form, Tipsy Schemers LLC hereby assigns to Seller all Intellectual Property Rights in and to such Developed Content. As between Seller and Tipsy Schemers LLC, the Role Platform, the Marketplace, and the Role Marks, and all related technology and all worldwide Intellectual Property Rights in the foregoing, are the property of Tipsy Schemers LLC. As used herein, “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark, service mark, trade dress and similar rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
2. Restrictions; Obligations.
In connection with using or accessing the Marketplace, Seller will not: (a) fail to provide, deliver or support Games sold through the Marketplace; (b) intentionally provide false, inaccurate, misleading, deceptive, defamatory, or libelous content; (c) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the Marketplace for any purpose; (d) disassemble, de-compile or otherwise reverse engineer the Marketplace or otherwise attempt to learn the source code or algorithms underlying the Marketplace; (e) circumvent any technical measures Tipsy Schemers LLC uses to provide the Marketplace; (f) infringe or misappropriate any Intellectual Property Rights that belong to third parties or provide content that is not owned by Seller; or (g) develop or directly or indirectly commercialize any products or services that compete with the Marketplace.
3. Fees and Payment
3.1. Process. Unless otherwise set forth in an appliable Order Form, (a) Tipsy Schemers LLC shall directly collect from and process Customers’ payments (through a third party payment processor) for Games sold at the Tipsy Schemers LLC list price or other price agreed-upon by the Parties; (b) Tipsy Schemers LLC will retain twenty five percent (25%) of the amounts collected from Customers for sales of the Game(s) and related Seller Content for processing and Role Platform fees (the “Role Share”), and will transmit the balance to Seller monthly, within 30 days of the end of each applicable month. The Role Share and all Game purchases are nonrefundable, except at sole the discretion or Tipsy Schemers LLC in connection with a refund to a Customer in connection with a defective product. If Tipsy Schemers LLC provides a Customer refund or chargeback, Tipsy Schemers LLC will refund Seller the Role Share.
3.2. Taxes. Each Party will be responsible for its own tax liability and the payment of all taxes, and any related penalties and interest, arising from the payments to such Party under this Agreement.
4. Confidentiality.
“Confidential Information” means, whether or not labeled “confidential” and whether in written, oral, visual, electronic or other form, any and all non-public technical, proprietary, financial, strategic, commercial or business information, development and marketing plans, strategies, financial information, Customer Data, and all information of third parties that the disclosing Party has an obligation to keep confidential. The Party receiving information (the “Recipient”) will use any Confidential Information of the other Party (the “Disclosing Party”) solely to exercise its rights or perform its obligations under this Agreement and will treat the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event with less than a reasonable degree of care. The Recipient will not disclose or make available to any third party, any of the Disclosing Party’s Confidential Information, without the prior written consent of the Disclosing Party. Confidential Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. In the event that the Recipient is required by law, regulation or court order to disclose any Confidential Information, the Recipient will give the Disclosing Party prompt notice thereof so that the Disclosing Party may seek an appropriate protective order to obtain confidential treatment for such disclosed information. In addition, the Recipient will (x) take all reasonable actions to obtain confidential treatment for any disclosed Confidential Information; (y) reasonably cooperate with the Disclosing Party in its efforts to seek such a protective order; and (z) limit such disclosure of the Disclosing Party’s Confidential Information to the fullest extent permitted under applicable laws. Upon written request by the Disclosing Party, the Recipient will promptly return to the Disclosing Party and/or destroy, at the Disclosing Party’s option, all Confidential Information of the Disclosing Party in the possession or control of the Recipient.
5. Representations and Warranties
5.1. By Both Parties. Each Party warrants that: (i) it has full power and authority to enter into and perform this Agreement; (ii) it will comply with all applicable law in performance of its obligations under this Agreement; and (iii) and the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement.
5.2. By Seller. Seller represents and warrants that: (i) it has all necessary rights and licenses to enter into this Agreement and to sell or license the Game(s) through the Marketplace; and (ii) the sale, licensing and/or use of the Game(s) in accordance with this Agreement will not violate the Intellectual Property Rights of any third party.
5.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE ROLE PLATFORM, DEVELOPED CONTENT AND RELATED SERVICES (COLLECTIVELY, “SERVICES”) ARE PROVIDED "AS IS" AND TIPSY SCHEMERS LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TIPSY SCHEMERS LLC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
6. Indemnification.
6.1. Seller shall defend and indemnify Tipsy Schemers LLC and its parent, subsidiaries and affiliates, and successors and assigns, and each of their officers, directors, employees, contractors and agents (“Role Indemnified Parties”) from and against any third party suit, claim, or proceeding brought against any Role Indemnified Party based on (i) a breach of Seller’s obligations under this Agreement or (ii) an allegation that the Games or any part thereof infringe, misappropriate, or otherwise violate any third party’s rights, including any Intellectual Property Rights (each of (i) and (ii), an “Indemnified Claim”).
6.2. Tipsy Schemers LLC shall notify Seller of an Indemnified Claim as soon as practicable. Seller shall not settle any Indemnified Claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise, or consent: (i) includes an unconditional release of all Role Indemnified Parties from all liability arising out of such Indemnified Claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of any Role Indemnified Parties; and (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains, or interferes with the business of any Role Indemnified Parties. Tipsy Schemers LLC reserves the right to participate in the defense of any Indemnified Claim with counsel of its own choosing.
7. Limitation of Liability
EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY UNDER SECTION 4 OR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, (A) NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.; AND (B) IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF ROLE SHARE RECEIVED BY TIPSY SCHEMERS LLC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.
8. Term and Termination
8.1. Term. Unless earlier terminated pursuant to this Section 9, the term of this Agreement will begin on the Effective Date and will expire at the end of the Term set forth in the Order Form.
8.2. Termination for Material Breach. This Agreement may be terminated by either Party for any or no reason upon fifteen (15) days written notice to the other Party. Further, either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if such other Party materially breaches any provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching Party.
8.3. Effects of Termination.
(a) Payment. Upon termination or expiration of this Agreement for any reason, any amounts owed to the Parties under this Agreement before such termination or expiration will be immediately due and payable, all license rights granted in this Agreement will immediately terminate, and each Party shall continue to maintain the confidentiality of the other Party’s Confidential Information and shall return or destroy all tangible embodiments of the same.
(b) Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, intellectual property rights, rights to payment, confidentiality obligations, warranty disclaimer, indemnification, and limitations of liability.
9. General
9.1. Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Both Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California.
9.2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.3. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.4. No Assignment. Seller will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Tipsy Schemers LLC, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
9.5. Independent Contractors. The Parties to this Agreement are independent contractors, and nothing contained in this Agreement shall be construed as creating or implying a joint venture, partnership, agency, or employment relationship between the Parties or their respective employees and contractors. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
9.6. Entire Agreement; Precedence. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by each Party. In the event of a conflict between the body of this Agreement and the terms of an Order Form to this Agreement, the terms of the Order Form will control.