Developer Terms and Conditions:
The following terms and conditions shall be deemed incorporated by reference into each insertion order (an "Insertion Order") entered into between UrTurn.com LLC (“Bodega”) and the developer identified below ("Developer"). These terms and conditions and the applicable Insertion Order shall be collectively known as the "Agreement."
1. Introduction. Developer will deliver their games’ virtual goods (“Goods”) as selected by Developer through our online developer load-in (the "Games") as listing templates to Bodega’s marketplace(s) (the "Site") for the benefit of Bodega.
2. Games Specifications; Implementation. Developer agrees to deliver all Games in accordance with the Agreement, including any placement requirements and technical specifications provided by Bodega to enable proper display of such Games on a reasonably balanced delivery schedule. Any exceptions must be approved by Bodega in writing. Developer will be solely responsible for any and all costs Developer incurs for the delivery of the Games in accordance with such specifications and for any programming related to the same which Developer elects to undertake.
3. Terms of Payment. Bodega shall pay Developer a share of Net Trading Revenue for their Game trades on the Site, due and payable within fifteen (15) days after the end of each calendar month; provided that amounts of less than two hundred and fifty dollars ($250.00) will be held until amounts due equal or exceed two hundred and fifty dollars ($250.00). Bodega's standard revenue share at the time the Game is running will apply. Developer understands and agrees that any revenue share set forth on an Insertion Order is an estimate only, and that the actual revenue share paid to Developer may vary. "Net Advertising Revenue" means gross revenues billed for Games less deductions for fraud, chargebacks, refunds, credit card processing fees, uncollected amounts, agency fees and referral fees. Developer shall be solely responsible for the payment of, and shall pay when due and indemnify Bodega against, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Developer under this Agreement (except for taxes assessed on Bodega's net income).
4. Fraud. Bodega will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Games provided by Developer, as reasonably determined by Bodega, provided that Bodega provides reasonable documentation to Developer with respect thereto.
5. Reporting. Developer will provide prompt electronic or written confirmation to Bodega that Developer has initiated delivery of Games. Developer will provide electronic or written reports to Bodega on a monthly basis, summarizing the parameters specified in the Insertion Order (e.g., creative execution, content area, Actions, etc.).
6. Content. Developer agrees not to submit any Game to Bodega that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene. Developer may also request that Bodega block Users, virtual objects or limit quantities of virtual objects from a list of specified as such and attached as an appendix to the Insertion Order, which list may be updated by Developer only upon Bodega's prior written approval. Bodega will use commercially reasonable efforts to block Games from Blocked Domains from the collection of Games provided to Developer for display at the Site.
7. Compliance with Laws. Developer agrees that it will deliver the Games in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Developer's country of residence. Developer will not, will not agree to, and will not authorize or encourage any third party to (a) interfere or attempt to interfere with the proper working of the Bodega Service or prevent others from using the Bodega Service; or (b) use the Bodega Service for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Bodega's sole discretion, and may subject Developer to state and federal penalties and other legal consequences. Bodega reserves the right, but will have no obligation, to review Developer's display of Games and use of the Bodega Service in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
8. Representations and Warranties. Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
9. Indemnification. Each party agrees to indemnify and hold the other party and its affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys' fees, arising out of any third party claims resulting from the breach of the representations, warranties and covenants made by such party herein. The indemnifying party reserves the right, at the indemnifying party's expense', to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnified party agrees to cooperate with the indemnifying party's ' defense of such claims.
10. Disclaimers; No Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, BODEGA MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. BODEGA DOES NOT WARRANT THE RESULTS OF USE OF THE BODEGA SERVICE, INCLUDING, WITHOUT LIMITATION, THAT DEVELOPER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS) HEREUNDER.
11. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL BODEGA OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF BODEGA OR A BODEGA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASES OF BREACHES OF SECTION 13, IN NO EVENT WILL BODEGA'S OR ITS AFFILIATES' TOTAL LIABILITY TO DEVELOPER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID OR PAYABLE TO DEVELOPER FOR GAMES ACTUALLY DELIVERED BY DEVELOPER PURSUANT TO THE INSERTION ORDER TO WHICH THE CLAIM RELATES.
12. Ownership. Developer acknowledges that Bodega will provide third-party Games using its Bodega Service for display and auction on the Site pursuant to this Agreement. Developer agrees that it will use any data (including any usage data and compilations thereof), information or software provided by Bodega to Developer only for the purpose of providing Games for Bodega on the Site as set forth in this Agreement. Bodega will own and retain all rights, title, and interest in and to the Bodega Service (except for any licensed content and third-party Games included therein), including all data (including any usage data and compilations thereof), information and software related thereto. Developer acknowledges that the software, information and data related to the Bodega Service (including, without limitation, any usage data or compilations thereof) are protected by Bodega copyrights and may contain trade secrets or other intellectual property owned by Bodega. Developer agrees not to copy, alter, modify, or create derivative works of any such data, information or software or the Bodega Service or otherwise use the Bodega Service or any such data, information or software in any way that violates the use restrictions contained in this Agreement. Bodega does not grant to Developer any license, express or implied, to the intellectual property of Bodega or its licensors.
13. Confidentiality. "Confidential Information" shall mean (a) the Games, prior to publication; (b) the existence or content of the Insertion Order; (c) any data (including any usage data and compilations thereof), information or software relating to the Bodega Service; and/or (d) any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." During and after the term of this Agreement, neither party will use for any purpose, or disclose to any third party, any Confidential Information of the other party except as specifically permitted herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party's Confidential Information; (b) has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
14. Term; Termination. The term of this Agreement will be one (1) year from the date that Developer's application is accepted by Bodega. Bodega may terminate this Agreement at any time for any reason or for no reason upon seven (7) days' prior written notice to Developer. In addition, in the event of a material breach by one party, the non-breaching party may terminate this Agreement immediately without prior notice or cure period. In the event of any termination, Bodega will remain liable for any amount due for Games actually delivered prior to the effective date of termination or breach of this Agreement, whichever is sooner, and such obligation to pay shall survive any termination of this Agreement.
15. Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Developer, but may be assigned by Bodega to an entity that succeeds to all or substantially all of Bodega's business or assets. Bodega and Developer are independent contractors, and neither Bodega nor Developer is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between Bodega and Developer, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. Any dispute hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to principles of conflicts of law. Developer agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for Washtenaw County, Michigan, and Developer hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.