These terms and conditions regulate the relationship between Sensing Emotions and Knowledge Group, SL (“Sekg” or “We/us”) located at Carrer Consell de Cent, 341, Principal Primera, 08007, Barcelona, Spain, with Tax ID B-66471665, and the developer or developer entity who signs up for a SEKG developer account (“Game Developers” or “Developer”). Hereinafter individually referred to as a “Party” and together as the “Parties’. They set out the responsibilities of the Parties for the use of the Sekg Services through the Developer account.
- “Account” means an account created by the Game Developer when signing up for the Services.
- “Confidential information” means any proprietary information, including without limitation non-public trade secrets, proprietary information, ideas, works of authorship (including confidential video games), know-how, data (including Gamer Data), processes and any other information or data related to the products and Services, a Party’s business and contractual relationships.
- “Dashboards” means customizable dashboard where aggregate and anonymised Gamers Data is made accessible to Game Developers.
- “Gamer Data” means any data and datasets based on the data that are collected from Gamers when playing the Games.
- “Gamer” means the natural person (having an account with Sekg) playing a Game and whose biometrics, behavioural reactions and/or impressions are recorded through the Sekg Services.
- “Games” means the video games provided by Game Developers for testing through the Sekg Services, identified in the applicable Service Order.
- “Intellectual Property Rights” means intellectual and industrial property rights, including but not limited to patent rights, copyrights, database rights, knowhow rights, and rights to trademarks, tradename.
- “Services” means the services provided by Sekg to Game Developers, which include without limitation facilitating access to Games to Gamers and creating reports available to Game Developers based on the Gamers Data through the Dashboard and other associated services.
- The Agreement incorporates these General Terms of Services, any Service Order completed through an online or offline process with Sekg, and any subsequent Service Order entered into by the Parties in relation to the Services. In the event of conflict, the terms of the then current Service Order shall prevail.
Licence and Scope
- As part of the Services, and subject to Developer’s compliance with this Agreement, Sekg grants Developer, during each Service Order term, a worldwide, non-exclusive, non-transferable and non-assignable right to access and use the Services, which includes without limitation access to the Dashboard and reports containing the Gamers Data. The Services shall be limited to use by or for the Developer identified in the Service Order, its affiliates and its employees, representatives and agents only.
- As conditions to this licence grant, Developer (and any person acting on its behalf) shall not (i) sell, rent, sublicense or lease access to the Services; (ii) remove, obscure or alter any proprietary notices associated with the Services, (iii) publish or make available to third parties the interface, graphics, design or functionalities of the Services ; nor (iv) use (or plan, encourage or help others to use) the Services for any purpose or in any manner that is prohibited by this Agreement or by applicable law. Developers who violate these rules may have their access and use of the Services suspended or terminated, at Sekg’s discretion.
Developer’s Rights and Obligations
- Upon registering for the Services for the first time, Developer shall create an Account, providing complete, accurate and up-to-date information. Upon acceptance of this Agreement by and registration of Developer, the Developer Account will be activated and Developer will be able to access and use the Services. Developer’s account may only be accessed and used through Developer’s ID and password which must remain confidential. Developer may not share its ID and/or password with any third parties. In the event Developer is aware of a confidentiality breach, Developer must immediately notify Sekg. Developer may close the account at any time, block access to the corresponding ID, and create a new ID or password.
- For each Game that the Developer wants evaluating through the Services, the parties shall enter into a Service Order available on the Sekg platform, including without limitation, specification pf the game, the evaluation period, the game rating, the target group and other relevant data required to provide the Services, and associated cost.
- Developer is responsible for all and any activities carried out in its Account, and must comply with all applicable local, state-wide, national or international laws, treaties and regulations related to the use of the Services.
- Developer will provide Sekg with complete, accurate, and updated information of the Games and Developer’s account at all times. Incorrect or outdated information may lead to errors or delays for which Sekg will not be responsible. Sekg reserves the right to withdraw such access for Developers who systematically provide inaccurate data.
- Developer grants Sekg the revocable and limited right to store, process, transmit and display the Games solely to the extent necessary to provide the Services, which includes without limitation providing or facilitating access to the Games by the Gamers.
- Developer warrants that it has all necessary licences and permissions to use the Services, provide Sekg and Gamers with the Games. Developer also represents that its Games and other activities in connection with the Services do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does such content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and comply with the description and rating set out in the Service Order.
- Developer may not through the use of the Services: (i) send or store material that contains software with virus, worms, trojans or codes, files, command sequences, harmful computer agents or programs; (ii) interfere or affect the integrity or performance of the Services or the data it contains; (iii) try to obtain unauthorized access to the Services or related systems or networks; or (iv) try to profile or access the personal data of the Gamers.
- Sekg reserves the right to suspend Developer’s access to the Services if it breaches any of these obligations, without prejudice to its right to terminate the Agreement as set out herein.
Term and Termination
- The Agreement is effective as of the Effective Date above, and shall remain in effect for one (1) year, renewable automatically for one (1) year periods unless either Party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then current term, during which period Provider will continue paying the due fees and Sekg will continue to provide the Services. This is without prejudice to the Service Orders who shall have their own term and termination date and shall be subject to applicable fees.
- Either Party may terminate immediately this Agreement in the event of a material breach, which included non-payment of the applicable fees, by the other Party with thirty (30) days prior written notice and such breach is irremediable or is not cured within thirty (30) days of written notice of such breach. Termination for cause of the Agreement shall automatically terminate current Service Orders, and if the breach is caused by Developer, Developer shall not be entitled to any refund of the fees already paid for the applicable Service Order/s.
- Upon termination for cause of Developer, any amounts pre-paid by Developer for the Services will not be refunded. Upon termination of this Agreement for any reason other than breach by Sekg, all payments obligations to Sekg will immediately become due and payable, Developer will cease using the Services, Sekg will cancel Developer’s Account. Upon termination otherwise than for cause of Developer, Developer will have thirty (30) days to retrieve all previously provided Gamer Data.
- Without prejudice to the foregoing, Sekg may temporarily suspend the rights granted hereunder to Developer, on notice to Developer, by way of deactivating its Account and use of the Services, either (a) on any breach by Developer of either clause 2 (Licence and Scope) or 9 (Warranty) hereof and/or (b) in the event of delay or non-payment of any fees due for more than 15 calendar days.
- The following clauses 4 (Term and Termination), 6 (Intellectual Property Rights), 7 (Indemnity), 8 (Confidentiality and Privacy), 9 (Warranty), 10 (Liability) and 11 (Miscellaneous) shall survive termination of this Agreement.
Fees and Payment
- Fees are set out in the applicable Service Order and, unless otherwise agreed, are payable in advance starting from the Effective Date of the Service Order and on a monthly basis. All fees are non-refundable once paid unless termination of this Agreement due to material breach by Sekg.
- Fees will be invoiced in advance and payments shall be made within the time frame specified in the Service Order or within 30 days from the date set out in the invoice.
- Late payment shall incur interest at the rate of 1% monthly or the maximum allowed by applicable law.
- The prices set out on any Service Order do not include taxes. Developer is responsible for payment of all taxes, levies, and similar governmental charges, however designated, that may be imposed by any jurisdiction, except for taxes based solely on Sekg’s net income.
Intellectual Property Rights
- Sekg and its licensors owns all rights, title and interests, including without limitation all intellectual Property Rights in the Services, including without limitation the Dashboard, the Gamers Data and the data reports. All rights not expressly granted remain reserved to Sekg and its licensors.
- Either Party shall defend and hold harmless the other from any and all claims, liabilities, costs, damages, including reasonable attorneys’ fees, relating to or arising from breach by the Party of the above representations, warranties and covenants.
- The indemnified Party shall promptly notify the indemnifying Party of any such claim or proceeding and shall not settle any such claim or proceeding without the indemnifying Party’s prior written consent. The indemnified Party shall have the right at its expense to participate in the defence thereof with counsel of its choice, provided that the indemnifying Party shall have the right at all times to retain or resume control of the conduct of such defence.
Confidentiality and Privacy
- Either Party shall keep any Confidential Information of the other party confidential with the same degree of care as it does for its own Confidential Information.
- Confidential Information does not include information that: (i) is known to the receiving party prior to its receipt from the disclosing party by means that are not in violation hereof; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes known and generally available to the public or otherwise ceases to be confidential, except through a breach of this agreement by the receiving party; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party, or (v) is required to be disclosed by subpoena, law, regulation, or court order.
- Each Party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this agreement, nor disclose to any third party (except as required by law or to such party’s attorneys, accountants and other advisers as reasonably necessary), any Confidential Information of the other party. Each Party will take reasonable precautions to protect the confidentiality of the Confidential Information of the other Party that are at least as stringent as it takes to protect its own Confidential Information.
- The parties agree to the data processing addendum attached hereto.
- Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and the Agreement does not breach any current legal or contractual obligation of that party.
- Developer represents and warrants that it owns all right, title and interest in the Games or possesses the necessary rights to permit the Games to be distributed to and accessed by the Gamers. Developer warrants that its use of the Services will not violate any applicable law, rule or regulation, breach an agreement with, or infringe the copyright or other intellectual property rights of, a third party.
- Sekg warrants that the Services provided in accordance with the terms of this Agreement, diligently and professionally, and will not violate any applicable law, rule or regulation. Sekg will make commercially reasonable efforts to ensure that the Services are secure, uninterrupted and error-free, that defects will be corrected, or that the servers used for the services will be free of viruses or other harmful components. If at any time during the term of this Agreement, Developer discovers one or more material or significant defects or errors in the Services as delivered, or any other respect in which any of the Services as delivered fails to conform to the provisions of this warranty, Sekg shall, as sole and exclusive remedy, use commercially reasonable efforts to correct such defect provided that adequate notice and description of the defect or error is provided to Sekg.
- Except as expressly provided herein, to the maximum extent permitted by applicable law, the Services are provided “AS IS” and Developer’s use of the Services is at Developer’s sole risk. Sekg disclaims all warranties, express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement. Sekg does not warrant that the services will be error free or uninterrupted.
- Unless otherwise stated, to the maximum extent allowed by applicable law, neither Party shall be liable or responsible to the other for any indirect or consequential damages, including, but not limited to, lost revenue, lost profits, loss of data or business information, even if advised of the possibility of such damages, whether arising under contract, tort (including negligence), strict liability or otherwise. Nothing herein constitutes a waiver of any unpaid or past due amounts owed by Developer for Services rendered.
- Without limiting the foregoing, unless otherwise stated, to the maximum extent allowed by applicable law, each party’s liability to the other for any breach of this agreement shall be limited to the direct damages arising from such breach and shall not exceed an amount equal to payments made by Developer to Sekg during twelve (12) months prior to the claim.
- Sekg shall not be held responsible or liable for any failure by the Gamers to abide by the Games terms and conditions, including without limitation to keep information regarding the game confidential (if applicable). It is the responsibility of the Developer to ensure that appropriate terms and conditions are drafted and available to be accepted by the Gamers for each Game provided for the Sekg Services.
- Support. Subject to Provider’s compliance with the terms of this Agreement including payment of the applicable fees, Sekg shall provide reasonable support for and maintenance of the Services to Developer. IN the case of any issue, Developer should contact Sekg through the means provided on the Sekg platform.
- Marketing. Neither Party may use the other party’s name, logo, trade name, trademarks and icons (collectively, the “Brands”) without prior written agreement. Notwithstanding the foregoing, each Party may use the other party’s name, trade name, trademarks and logos to refer publicly to the other, orally and in writing, solely in connection with the Services provided hereunder and only for so long as this Agreement remains in effect.
- Notice. Notices shall be provided by email to Sekg at firstname.lastname@example.org and to Provider at the email address set out above. Notices are not effective until acknowledgement of receipt by the other Party is given.
- Independent Contractors. Sekg and Provider are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, or agency between Sekg and Provider.
- No Third Parties. This Agreement is made for the benefit of Sekg and Provider, and not for the benefit of any other third Parties.
- Assignment. The Parties shall not, without the other party’s prior written consent, assign, sublicense, or otherwise dispose of the whole or any part of this Agreement, except that the Agreement may be assigned to any member of the Parties’ corporate group in the event of corporate reorganization.
- Force Majeure. Neither Party will be liable for any failure or delay due to any cause beyond its reasonable control provided that the delayed party gives prompt notice of such cause, and uses its commercially reasonable efforts to promptly correct such failure or delay.
- No Waiver. Neither Party’s waiver of the breach of any provision shall constitute a waiver of that provision in that or any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing, signed by both Parties.
- Severability. lf any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall continue in full force and effect, and the Parties shall substitute a valid provision with the same intent and economic effect.
- Governing Law. This Agreement will be governed by and in accordance with the laws of Spain applicable, without regard to any conflict of laws rules or principles.
- Jurisdiction. In the event that a dispute arises with respect to the terms of this Agreement, the parties agree that the exclusive and sole venue for resolution shall be a court of competent jurisdiction in the City of Barcelona, Spain.