Developer Terms and Conditions
BuySeriousGames.com, a company incorporated in Coventry under the Companies Acts (with registered number 6536470) and having its registered office at The Serious Games Institute, Cheetah Road, Coventry, CV1 2TL (“the Principal”); has provided the following Terms and Conditions for Developers, or Suppliers, to the BuySeriousGames.com (BSG) ecommerce site.
IT IS AGREED as follows:
1. APPOINTMENT
1.1. The Developer hereby appoints the Principal on a non-exclusive basis to promote and sell Units through BSG on the terms of this Agreement and the Developer hereby accepts the appointment on these terms.
1.2. All sales of Units by the Principal on behalf of the Developer shall be at the prices set by the developer per product.
1.3. The Developer shall not be entitled to bind The Principal or otherwise hold itself out as having authority to act on behalf of the Principal.
2. PRINCPAL COMMITTMENT
BSG is a service designed to bring maximum exposure to Serious Games products and services and provide a focal selling point for Buyers to purchase the appropriate product/service from a Developer. As such, BSG has an integrated marketing campaign.
2.1. The Principal hereby agrees to commit to the following in order to ensure maximum advertising of BSG and the Developers products.
2.1.1. Attending and promoting BSG at Events including exhibitions where accessible
2.1.2. The production and distribution of marketing material through events
2.1.3. Monthly newsletters including news releases and promotions of the month to all those registered within BSG and the wider BSG contact list
2.1.4. Updates on social media websites including Twitter, LinkedIn, and Facebook including BSG monthly newsletter and promotions
2.1.5. Updates on blogs including EducateIT, Serious Games Jam and LinkedIN societies including BSG monthly newsletter and promotions
2.1.6. Advertise and update BSG details on training and educational websites.
2.1.7. Any other forum, venue or portal which are on or offline will also be accessed and utilised
3. PRICING
3.1. For each Unit sold or granted to a Buyer where the payment is to be received by the Principal, the Principal will retain a commission on a sliding scale, detailed below:
3.1.1. 20% on the first £25,000 of a product total cost (excluding VAT)
3.1.2. And in addition to 3.1.1 an additional 10% of a product total cost above £25,001 (excluding VAT)
3.2. For each Unit sold there will be an additional administrative fee of 3.4% + 0.20p included to be paid by the Developer.
3.3. Value Added Tax on the fee will be paid by the Principal to the Developer whereever VAT is applicable (VAT must be specified in the price description).
3.4. The Principal shall pay to the Developer the fee plus any applicable Value Added Tax on the fee within 28 days of receipt of payment in respect of the Units from the Buyer.
3.5. Where applicable the Developer will declare to the Principal if the Product is eligible for VAT exemption, dependant on the usage of the Product and if the Buyer is a VAT exempt eligible body.
3.6. With each transaction of a product sold through BSG it will include an additional administrative cost, on a slide scale, payable by the Buyer and will be the following:
3.6.1. 3.4% + 0.20p of total purchase up to £1500
3.6.2. 2.9% + 0.20p of total purchase from £1500 - £6000
3.6.3. 2.4% + 0.20p of total purchase from £6000 - £15000
3.6.4. 1.9% + 0.20p of total purchase from £15000 - £55000
3.6.5. 1.4% + 0.20p of total purchase above £55000
3.7. The Developer shall collate sales information from BSG and invoice BSG (FAO: Finance @ registered address) and the Finance manager will check, approve and pay the monies due.
3.8. The Developer agrees to respond to the customer within 24 hours of receiving notifcation of the order and send the product (either by post or email) within 48 (business) hours of receiving the order notification.
3.9. The Developer must specify where postage and packaging is required to send a physical product. The cost must be detailed in the product information section.
4. PROPRIETARY RIGHTS
4.1. The Principal hereby agrees that the Software is and shall continue to be a proprietary asset of the Developer and that all rights, title and interest in the Software are vested and shall remain vested to/in the Developer.
4.2. The Parties acknowledge that the proprietary assets disclosed to the Principal and/or the Buyers under the terms of this Agreement and any purchase agreement and/or disclosed by The Developer to the Principal and/or the Buyer at any time, represent valuable assets and shall remain valuable assets only so long as their dissemination remains controlled and limited to persons authorised to use such proprietary assets in accordance with this Agreement.
4.3. The Principal acknowledges that the proprietary assets to be furnished under this Agreement are the exclusive property of The Developer with all copyright in the Software and warrants that it shall not allow any of its partners, employees, or any other person, firm or corporation, to tamper with or to attempt to learn or modify or copy or disseminate the proprietary by any means (except as allowed in this Agreement). The Principal shall immediately inform the Developer of any known or suspected infringement of the proprietary assets coming to its attention.
4.4. The Developer grants to the Principal, for the term of this Agreement, a non-exclusive and non-transferable licence to use any trademarks, trade names and other intellectual or proprietary rights of the Developer for the purpose of marketing and selling the Game or the Software.
4.5. The Developer grants to the Principal, for the term of this Agreement, a non-exclusive and non-transferable license to use, market, demonstrate, publicly perform and display the Software, in object code form, to Buyers within the territory for the purpose of marketing and selling the Game or the Software.
4.6. The Developer agrees to provide an aftercare support and maintenance agreement to the Buyer in relation to the product purchased in relation to the Developers standard aftercare and maintenance support on products. Faulty or damaged products must be resolved by the Developer within the given 28 days standard clause in which the Buyer has to notify the developer. The Buyer has 28 days in order to refund a product. If after the 28 days, the resolution must be made between the Developer and the Buyer. The Principal will not refund after the 28 day cut off point, and will not partake in maintenance eof the product.
5. CONFIDENTIALITY
5.1. “Confidential Information” means:
5.1.1. the specific terms and conditions of this Agreement;
5.1.2. the Game, any documentation provided therewith, other software, documentation or methodologies, information, data, drawings, benchmark tests, specifications, trade secrets, object code, source codes and machine-readable copies of the software (including, without limitation, any software provided by The Developer as part of a support policy and source code), client and prospective client lists, client and prospective client proprietary information, marketing plans and project plans, and any other proprietary information, supplied by either Party to the Principal , in paper or electronic form, and marked as “confidential information” or with another marking of similar import; and
5.1.3. all information, in whatever form provided, that in light of the circumstances of disclosure or the nature of the information itself, or the combination thereof, would put a reasonable recipient on notice of the disclosing Parties expectation that such information is to be treated as confidential; including all items expressly labelled as “confidential information” in any other agreement between the Parties whether executed prior to or after the date of this Agreement.
5.2. Notwithstanding the foregoing, “Confidential Information” shall not include any information that is:
5.2.1. publicly available;
5.2.2. obtained from a third party who the recipient believes is legally entitled to make such disclosure;
5.2.3. independently developed by the other Party without reference to Confidential Information; or
5.2.4. known to the recipient prior to its receipt hereunder.
5.3. Each Party acknowledges that its Confidential Information may constitute valuable trade secrets and each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions and purpose of this Agreement, and will not during the term hereof or for three years thereafter disclose the same, directly or indirectly, to any third Party without the other Party’s prior written consent.
5.4. Each Party agrees:
5.4.1. to hold the Confidential Information in confidence (using at least the precautions the Party employs with respect to its own confidential materials of a similar nature) from unauthorised use and disclosure, but in no event less than reasonable precautions; and
5.4.2. not to divulge the Confidential Information or any information derived there from to any third person.
5.5. However, neither Party shall be liable for any disclosure to the extent it is required by a court of competent jurisdiction, administrative agency or governmental body, or by law, rule or regulation, or by applicable regulatory or professional standards, or is in connection with any judicial or other proceeding involving the Developer or a Buyer and the recipient (or any officers, directors, partners, principals or employees of the recipient) (whether or not such proceeding involves any third parties) relating to the recipient’s services for a client or customer or this Agreement.
6. TERMINATION OF AGREEMENT
6.1. Notwithstanding any provisions contained herein, this Agreement may be terminated by the mutual written consent of both Parties.
6.2. This Agreement may be terminated with immediate effect by either Party upon written notification if the other Party is in material breach of the terms of this Agreement, and such breach, if capable of being cured, is not cured within fifteen days upon receipt of a written notification from the Party not at fault specifying such breach.
6.3. This Agreement may be terminated by either Party immediately if the other Party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors, files or has filed against it by a third Party any petition under any Bankruptcy Act, or an application for a receiver of either Party is made by anyone and such petition or application is not resolved in favour of such Party within 60 days after such event taking place.
6.4. Termination of this Agreement shall not (save as provided herein) relieve either Party of any obligation the other amounts due as a result of the transactions occurring prior to termination.
6.5. Within 10 days after this Agreement has been terminated, the Principal shall return to the Developer all proprietary assets and all Confidential Information relating thereto and shall certify to the Developer in writing that through its best efforts and to the best of its knowledge all originals, duplicates and copies of all such proprietary assets furnished there under or held by the Principal have either been returned to the Developer or destroyed, provided that (and save in the case where this Agreement is terminated by reason of infringement by the Developer of the proprietary assets) the Developer shall be entitled to retain, subject to the restrictions contained in this Agreement, any such proprietary assets actually required for the performance by it of its obligations under maintenance agreements existing at the time of termination, and provided further that the foregoing provisions concerning return or destruction of the proprietary assets shall apply upon termination of such outstanding maintenance agreements. The provisions of this clause shall not apply to Buyers for which the royalty has already been paid to the Principal.
6.6. Upon expiry of termination of this Agreement, the Principal shall forthwith discontinue use of any and all copyright, trademarks, trade names and other intellectual or proprietary rights, used, embodied in or in connection with the Products (including related documents) save in relation to maintenance agreements outstanding at termination when the use of such copyright, trademarks, trade names and other rights. The provisions of this clause shall not apply to Buyers for which the royalty were already paid to the Principal.
6.7. In the event that the Commercial Developers (Council Directive) Regulations 1993 (as amended) are held to apply to the appointment of the Developer, the Parties agree that Regulations 17(3)-(4) shall have effect.
7. PUBLICITY
7.1. Neither Party will issue a news release, public announcement, advertisement, or other form of publicity concerning its efforts in connection with this Agreement without the prior approval of the other Party.
8. NON-SOLICITATION
8.1. Neither Party shall knowingly endeavour to solicit or entice away any partner, principal, employee, consultant or director (an “employee”) of the other who has been directly and substantively engaged in the performance of this Agreement, during the term of this Agreement or for a period of 12 months following termination or expiration thereof, nor knowingly employ or assist in procuring the employment by any other person, firm or corporation of any such employee.
8.2. Where an ex-employee of either Party becomes free of any covenants which may have survived the contract or relationship of employment, either Party may facilitate the employment of such a person.
8.3. This provision shall not restrict the right of either Party to solicit or recruit generally in the media, and shall not prohibit either Party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party.
8.4. Neither Party shall be in breach of this provision if those responsible for the solicitation, hiring or retention of the other Party’s employees were not aware of the prohibition contained in this provision; personnel of each Party who are directly involved in this Agreement shall be conclusively deemed to know of the prohibition. The provisions of this clause 8 shall survive the termination of this Agreement for the period set forth in the first sentence of this clause 8.
9. ENTIRE AGREEMENT
9.1. This is the entire agreement between the Parties, and it supersedes any prior oral or written agreements, commitments, understandings, or communications with respect to this subject.
10. LIMITATIONS
10.1. Neither Party may bring a claim or action, regardless of form, arising out of or related to this Agreement more than two years after the cause of action accrues.
10.2. In no event shall The Principal be liable for any indirect, special, incidental or consequential damages of any nature whatsoever, or any loss of profit sustained by the Developer or the Buyer, even if they have been advised if the possibility if such damages, including, but not limited to, damages arising from the loss of use of the Software, loss of data, or loss of profits.
11. FORCE MAJEURE
11.1. Neither Party shall be liable to the other for any breach or non-performance of this Agreement for any reason beyond its reasonable control including (without limitation) acts of terror, war, strikes or action by any government agency. If such an event arises the Parties shall, as soon as practical, meet to consider the action to be taken to deal with the situation and no steps shall be taken by either Party to terminate this Agreement for a period of at least 60 days following the occurrence or commencement of the event in question.
12. NOTICES
12.1. Any notice required under this Agreement shall be posted by first class mail, postage prepaid, to the address of the receiving Party given above, or to such other address as may be given by written notice.
12.2. Notice may also be given by courier or fax if confirmation of receipt can be established. Such notice shall be deemed to have been served in the case of fax on the next business day following the day of dispatch and if by post, 10 days following the date of posting.
13. GOVERNING LAW AND JURISDICTION
13.1. This Agreement shall be governed by and construed in accordance with the law of England and the Parties prorogate the exclusive jurisdiction of the English courts.