GXC EULA AND PUBLISHER AGREEMENT
Last updated: September 27th 2021
ABOUT THIS DOCUMENT
This document explains the terms and conditions that apply when you use or publish your products and the GXC platform.
OTHER LEGAL DOCUMENTS
We have various other legal documents which apply additional rules to different aspects of our services, all of which are hereby incorporated by reference into this Agreement:
- a) GXC Service Specific Terms : this sets out the terms on which you may use the GXC Platform.
- b) Opera General Terms of Service: this set out the general terms and conditions for Opera Norway
- Customer Content: means any content that Customers upload, post, share or transmit to or through the GXC Platforms including without limitation any text, videos, photographs, screenshots, images and links.
- GameMaker Studio: means the tool used to create and upload games for GXC.
- GXC: means the service for the users, which allows them to find and play games.
- GXC DevCloud: means the service for the publishers, which allows them to publish their GameMaker Studio games to be part of GXC.
- GXC Property: means (i) GXC Platforms; (ii) GXC Content; (iII) any other GXC products, services, intellectual property and materials of any kind, in each case including all Intellectual Property Rights in and updates and modifications to the same.
- Publisher Property: means third-party products or services created by Publishers using GameMaker which can be licensed or accessed via the YYG Platforms and/or other third party platforms including GXC.
GXC is a platform which allows publishers to distribute their GameMaker Studio games, which will allow users to find and play them directly in their Opera GX browser. Publishers will be able to use GXC DevCloud to create and configure their games, set up challenges for the games, and even create/manage their own studio together with their friends. Users will be able to play the games and participate in challenges to compete amongst their friends.
Users and Publishers
Users. If you register an account to participate and play challenges from GXC, you agree to be bound to the terms of this Agreement as a platform user (“User”). Users affirm that they are over the age of 13, as the Service is not intended for children under 13 or an adult in your home territory.
Publisher. If you register an account to distribute, or publish games or other content on GXC DevCloud, you agree to be bound to the terms of this Agreement as a platform publisher (“Publisher”). Publishers affirm that they are either more than 13 years of age or an adult in their home territory, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement.
Accessing and using GXC property and publisher property
GXC aims to create a safe environment for users of the site and service. This requires a community that is built on goodwill and responsible behavior by its members. The posting of content or other actions that, in the Company’s sole discretion, degrades the experience of others may result in account termination without prior notice. Prohibited actions include but are not limited to:
- Do not copy, modify, merge, distribute, translate, rent, lend, lease, reverse engineer, decompile, disassemble or create derivative works of: (i) Publisher Property (unless specifically agreed otherwise with the relevant Publisher); or (ii) the GXC Property.
- Do not hack, harm, grief or misuse them or use any viruses or other harmful software in connection with the GXC service.
- Do not create or use exploits, automation software (aka 'bots') or other software or do anything else to give you an unfair advantage regarding using the GXC service (or try to circumvent or harm software meant to stop these things).
- Do not interfere with the GXC service or their network software or other software including via tunneling, 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 the GXC service
- Do not use the GXC service to access, copy, transfer, transcode or retransmit content in breach of any laws or third party rights.
- Do not remove, obscure or alter GXC's or any third party's copyright, trade mark or other proprietary notices or documentation regarding them, nor use any GXC or other trademarks for your own purposes.
- Do not do or say anything which is or may be considered threatening, abusive, obscene, racist, xenophobic, sexist, defamatory, pornographic, sexually explicit or otherwise offensive or illegal.
- Do not submit personal information of other persons without their consent.
- Do not use the GXC Property for commercial product promotions, off-topic messages or political purposes; no spam, chain letters, pyramid schemes or fraudulent or deceptive messages; no false claims of affiliation with any third party.
Publisher content. Publishers are solely responsible for the content they upload and distribute on the Service. Publishers affirm, represent, and warrant that they own or have the rights, licenses, permissions and consents necessary to publish, duplicate, and distribute the submitted content. By submitting content to the Service for distribution, publishers also grant a license to Opera for all patent, trademark, trade secret, copyright or other proprietary rights in and to the Content for publication on the Service, pursuant to these Terms. Opera does not endorse copyright infringing activities or other intellectual property infringing activities and violations of the law may result in the removal of content if Opera is notified of such violations. Removal and termination of accounts may occur without prior notice.
Publishers retain all ownership rights to the submitted content, and by submitting content to the Service, publishers hereby grant the following: \
- To Opera, a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Service, including without limitation for promoting, redistributing in any and all media formats. If you choose to remove your content from the Service, this license shall terminate within a commercially reasonable time after you remove your content from the Service.
- To Users, a non-exclusive, perpetual license to access the content and to use, display and perform such content as permitted through the functionality of the Service. Users shall retain a license to this content even after the content is removed from the Service.
User Generated Content. The service provides interfaces and tools for Users and Publishers to generate content and make it available to other users, including ratings, profile images, highscores, and others ("User Generated Content" or "UGC"). By uploading or creating such UGC, you grant Opera the worldwide, non-exclusive, perpetual, royalty free license to use, reproduce, create derivative works, display, perform and distribute for the UGC.
- Monitoring. We have no duty to pre-screen User Customer Content, but we have the right to refuse to post, edit, or deliver Customer Content. We reserve the right to remove Customer Content for any reason, but we are not responsible for any failure or delay in removing such material. We reserve the right to block any user’s access to any content at our sole discretion.
- Updates. From time to time, the GXC Property or Publisher Property may be subject to updates (such as bug fixes, patches, new versions and enhancements). GXC may at its sole discretion and from time to time change, add or remove features and functionality of the GXC Property without any notice to you. GXC reserves the right to discontinue some or all of the features of the GXC Property at any time at its sole discretion (including the provision of software updates). You acknowledge and agree that GXC will not be liable to you or to any third party for any modification, suspension or discontinuance of the GXC Property. If you are dissatisfied with any changes to the GXC Property, then your sole option is to discontinue or terminate your use of the GXC Property as described herein.
- Compliance. You are solely responsible for your own use of the GXC Property and for any breach of your obligations under this User Agreement. You are responsible for compliance with all local laws, regulation and industry practice when accessing and using the GXC Property, Publisher Property and Customer Content.
- Ratings and reporting. You may be able to rate and report GXC Content and Publisher Property via the GXC Platforms. Please be honest and constructive in your reporting and bear in mind that you are responsible for your report and any comments you make.
- Third Party Links. You might get links from us or third parties to third party websites or content through the GXC Platform. Your use of them is your responsibility - we cannot promise they will work, what they will be like or if they are free.
INTELLECTUAL PROPERTY AND OWNERSHIP
- Publisher Property. Each Publisher is the owner or licensor of its Publisher Property and all Intellectual Property Rights in it.
- Ownership of GXC Property. We are the sole and exclusive owner of the GXC Property and all Intellectual Property Rights in it. All rights not expressly licensed or granted to you under this Agreement are expressly reserved to us.
- Customer Content. You retain ownership of any rights you may have in your Customer Content.
- Content Removal. We reserve the right to remove Customer Content and Publisher Property from the GXC Platform temporarily or permanently for any reason, in our sole discretion, including but not limited to where: (i) we are requested to do so by its Publisher; (ii) we are required by a competent law enforcement authority; (iii) this is uploaded by a 'repeat infringer' (i.e. any Customer that has received multiple takedown notices against him/her/them); or (iv) we are notified or become aware that the Customer Content or Publisher Property (in whole or in part):
- a) breaches the Intellectual Property Rights or any other rights of GXC or any third party;
- b) breaches any provisions of this Agreement or our other rules, including in particular the prohibited actions outlined in section X (Prohibited Actions) above;
- c) breaches any applicable law or is subject to an injunction;
- d) is being distributed by its Publisher improperly or illegally;
- e) may create liability for or damage the public image, reputation or goodwill of GXC;
- f) is of inadequate quality;
- g) contains any virus, malware, or other harmful software or may have an adverse impact on GXC and/or GXC Property; or
- h) breaches this User Agreement or any other relevant legal document.
- If you believe that any Customer Content or Publisher Property violates your Intellectual Property Rights, please refer to GameMaker Studio IP Rights Policy. If you believe that any Customer Content or Publisher Property violates any of the other rules above, please contact us at email@example.com.
TERM AND TERMINATION
- Start of User Agreement. This Agreement starts when you confirm your agreement to it or start using any of the GXC Property and will end once either you or we terminate it, as we explain below.
- Your Termination Rights. You may terminate this User Agreement at any time by ceasing all use of the GXC Property at any time.
- Our Termination Rights. We may restrict, suspend or terminate this User Agreement and your access to all or any part of the GXC Property and/or Publisher Property 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; (iv) we decide not to provide the GXC Property anymore (see below); (v) you act in any way that may be considered threatening, abusive, obscene, racist, xenophobic, sexist, defamatory, or otherwise offensive or illegal towards any member of the Opera Software staff; (vi) we delete your GXC account in response to a data deletion request from you; or (vii) we delete your Opera account due to sustained periods of inactivity, (viii) you are found to misuse any GXC Property and licences provided including on a free trail basis in any way.
- 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 GXC Property and Publisher Property.
- 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 section 8.5 (Force Majeure), "Force Majeure" means any cause preventing a party from performing any or all of its obligations that arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including strikes, 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.
- Ceasing to provide the GXC Property or Publisher Property. If we decide to cease to provide the GXC Property, 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 GXC 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 GXC Property) will no longer be available unless we notify you otherwise.
END OF GXC PLATFORM
If for any reason we decide to cease to provide the GXC Platform (or any part of them), then: (i) we will notify you as soon as is reasonably possible; and (ii) the Publisher Property will remain available to existing Customers for a period of 30 days to access (unless we decide differently, including to require a longer or shorter period); and (iii) following that period, ordinarily, the Publisher Property (and if relevant the relevant GXC Platform) will no longer be available unless we notify you otherwise, and this Agreement will terminate.
- In this Agreement, “Confidential Information” means this Agreement and any commercial or technical information in whatever form that is disclosed by one party to the other party and which would be regarded as confidential by a reasonable business person; all business, statistical, financial, marketing and personnel information; customer or supplier details, know-how, designs, trade secrets or software of the disclosing party or any member of its group or any information that is marked as “Confidential”.
- Neither party shall disclose Confidential Information to any third party and shall only release the Confidential Information to those of its directors, officers or employees who need to know it strictly for the purpose of exercising or performing that party’s rights and obligations under this Agreement (the “Purpose”). Each receiving party shall treat Confidential Information with the same degree of care and apply no lesser security measures than it affords to its own Confidential Information. The receiving party warrants that these measures provide adequate protection against unauthorised disclosure, copying or use. The receiving party shall make no commercial use of the Confidential Information, except for the Purpose.
- Confidential Information may be disclosed if and to the extent:
- (i) it is required by law, court order or other authority of competent jurisdiction or any regulatory or government authority to which the receiving party is subject, but in each case, only to the extent required and for the purpose of such disclosure and provided that the disclosing party is promptly informed of the disclosure;
- (ii) the receiving party reasonably considers it necessary to disclose the information to its professional advisers, auditors or bankers provided that it does so on terms protecting the information;
- (iii) the information has entered the public domain through no fault of the receiving party;
- (iv) the information was previously disclosed to the receiving party without any obligation of non-disclosure; or
- (v) the disclosing party has given its consent in writing.
- copies or reproductions of Confidential Information shall not be made except to the extent reasonably necessary for the Purpose, and all copies made shall be dated and shall be the property of the disclosing party.
- This clause (Confidentiality) is supplemental to and does not replace any Non-Disclosure Agreement between you and us. In the event of any inconsistency or dispute between such a Non-Disclosure Agreement and this Agreement, this Agreement will prevail.
REPRESENTATIONS AND WARRANTIES
- Mutual representations and warranties. We represent and warrant to each other that each of us have the power and authority to enter into this Agreement and fully perform all obligations in this Agreement.
- Your representations and warranties. You represent and warrant the following:
- (i) you own or validly license your Publisher Property and all Intellectual Property Rights necessary to grant us the rights and licences set out in this Agreement. If you use third-party materials in the Publisher Property, you represent and warrant that you have the right to distribute those third-party materials and have complied with any terms or restrictions;
- (ii) Your Publisher Property does not violate the privacy rights, publicity rights, contract rights, Intellectual Property Rights or any other rights of any person;
- (iii) Your Publisher Property will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties and you agree to pay all monies owing to any person as a result of posting your Publisher Property on the GXC Platforms;
- (iv) Your Publisher Property will at all times comply with the terms of this Agreement and the User Agreement (in particular the rules outlined in section X (Prohibited Actions) of the Agreement); and
- (v) you will use your Publisher Property and the GXC Platform only for purposes that are expressly permitted by this Agreement and by any applicable laws, regulation or industry practice.
- No other warranties. Your use of the GXC Platform is at your own risk and the GXC Platform is provided ‘as is’ and ‘as available’ without warranty or representation of any kind. We disclaim all warranties, representations and conditions of any kind relating to the GXC Platform, including without limitation any implied warranties of satisfactory quality, merchantability, fitness for purpose, title, non-infringement of third party rights and any warranties that may arise from course of dealing or course of performance or usage of trade. In addition, we do not warrant or represent that your use of the GXC Platform will be uninterrupted or secure or free from bugs or errors. Your use of the GXC Platform and any assets, information or other material obtained via them is at your own discretion and risk.
LIMITATION OF LIABILITY
- The maximum and total aggregate liability of GXC our group of companies, our employees and our affiliates (“Opera Group”) to you in connection with this Agreement shall be an amount equal to all revenue actually paid by YoYo Group to you (if any) during the preceding calendar year in which the relevant issues occurred. In no event will Opera Group be liable to you for any loss of profits, charges or expenses, loss of data or any corruption or loss of information or any loss of business opportunity or any special, indirect, punitive, exemplary or consequential loss or damage or disruption of any kind, in any case, whether based on breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise whether or not the relevant party has been advised of the possibility of such damage. The forgoing limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Nothing in this Agreement purports to limit or exclude either party’s liability for: (i) fraud, fraudulent misrepresentation or wilful misconduct; or (ii) for death or personal injury caused by that party’s negligence; or (iii) to the extent otherwise not permitted by law.
- Equitable Relief. You agree that any loss, damage or harm you suffer is not irreparable or sufficient, and other remedies will be adequate, such that you are not entitled to injunctive or other equitable relief against us.
You agree on demand to indemnify and hold harmless Opera Group and its officers, directors, employees and agents (and keep them indemnified and held harmless) from and against any and all damages, claims, suits, actions, judgments, costs (including legal costs) and expenses whatsoever, including reasonable legal fees and costs, arising out of: (i) your Publisher Property; (ii) any use by you of Intellectual Property Rights or Confidential Information belonging to Opera Group that has not been expressly authorised by Opera Group pursuant to this Agreement; (iii) any actual or alleged infringement by you of third-party Intellectual Property Rights, misuse of Confidential Information or breach of any Third Party Software Terms; and/or (iv) any alleged or actual breach by you of this Agreement. You shall promptly notify us as soon as you become aware of any third-party claims against you regarding the above, following which we may elect for you to undertake and conduct the defence of any such claim at your expense and (to the extent practicable) in our or your name at our discretion. You will make no attempt to settle any such claim in whole or in part without our express prior written consent.
CHANGES TO THIS AGREEMENT
We may change this Agreement if we think it necessary (for example to reflect changes in the GXC Platform or legal developments). If so, we will make the revised version available online within the GXC Platform and we will make reasonable efforts to inform you of the changes. It will become legally binding on you once we post it online. If you do not agree to the new version, you must stop using the GXC Platforms.
(i) This Agreement is a commercial bargain agreed on an arms’ length basis following negotiation by the parties. Each party has had the opportunity for legal advice prior to executing this Agreement. (ii) This Agreement does not create any exclusive relationship between the parties nor any partnership, joint venture, employment or agency between them. (iii) No failure or delay by a party to exercise any right under this Agreement or at law will be a waiver of that right. (iv) No assignment, novation or transfer of this Agreement is possible by Publisher without GXC’ prior written consent. (v) Only a party to this Agreement, as well as members of the YoYo Group, can enforce it (whether under the UK’s Contracts (Rights of Third Parties) Act 1999 or otherwise). (vi) If any part of this Agreement is found to be invalid or unenforceable, that will not affect the rest of the Agreement. (vii) This Agreement can be executed in multiple counterparts. (viii) Any notices under this Agreement must be in English and sent by email, for the Publisher to its account email address and for GXC to firstname.lastname@example.org. This Agreement and its accompanying GXC legal documents constitute the whole agreement between the parties and supersedes all previous agreements between them regarding its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this Agreement will limit any liability for fraud. (x) Each party is responsible for its own costs regarding this Agreement. (xi) The parties agrees that the UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement. (xii) This Agreement and any dispute, claim or matter (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England will have exclusive jurisdiction over any dispute, claim or matter (whether contractual or non-contractual) that arises out of or in connection with this Agreement or its subject matter or formation. Each party waives, to the fullest extent permitted by applicable law, any objection to such choice of exclusive governing law and jurisdiction and any claim that any such action or proceedings brought in such court has been brought in an inconvenient forum.