Marketplace Distribution Agreement

 

Please read this Agreement carefully.  It is a legal document that explains your rights and obligations related to Epic’s resale and distribution of your digital content through Epic’s proprietary online marketplace.  By clicking to indicate your acceptance of this Agreement or otherwise providing content to Epic for resale through the marketplace, you are agreeing to be bound by the terms of this Agreement.  If you do not or cannot agree to the terms of this Agreement, please do not click to accept this Agreement or provide content to Epic for resale.

Certain words or phrases are defined to have certain meanings when used in this Agreement.  Those words and phrases are defined below in Section 11.

If your primary residence (or primary place of business, if you are a legal entity like a corporation or an academic institution) is in the United States of America, your agreement is with Epic Games, Inc. and the term “Epic” in this Agreement refers to such entity.  If it is not in the United States of America, your agreement is with Epic Games International S.à r.l., acting through its Swiss branch, and the term “Epic” in this Agreement refers to such entity. 
 

1.    Grant of License to Your Content

 a.    You hereby grant to Epic a non-exclusive, worldwide, perpetual (except as provided in Section 6), non-transferable (except as provided in Section 10.d), non-sublicensable, and royalty-free license to copy, perform, display, distribute, transmit, modify and use the Content:
 i.    to create, display and use the Content for administrative and demonstration purposes in connection with the operation, promotion, and marketing of the Marketplace itself and in connection with the promotion, marketing, sales, and distribution of the Content via the Marketplace; and
ii.    to distribute and grant Digital Rights in the Content to Customers via the Marketplace.
For clarity, Epic shall be under no obligation to distribute the Content via the Marketplace or, once distribution has begun, to continue to distribute the Content via the Marketplace at any point during the term of this Agreement.
 
b.    You agree that Epic may grant to Customers a non-exclusive, worldwide, and perpetual license to download, use, copy, post, modify, promote, license, sell, publicly perform, publicly display, digitally perform, distribute, or transmit the Content for personal, promotional, and/or commercial purposes (“Digital Rights”).  Both Parties expressly acknowledge that distribution of the Content to Customers via the Marketplace is not a sale of the Content but the grant of Digital Rights to Customers.  Such Digital Rights shall be granted pursuant to Epic’s then-current end user license agreement for the Marketplace (“EULA”).


2.    Your Content

a.    Except for the rights granted by you to Epic in Section 1 above, Epic expressly acknowledges and agrees that it obtains no right, title, or interest from you (or your licensors) under this Agreement in or to any Content supplied by you, including any intellectual property rights which subsist in that Content. Within a commercially reasonable period of time after receipt of your written request, Epic will stop offering for sale Digital Rights to any or all of you Content through the Marketplace; however, Epic may continue to make such Content available for download to Customers who have already purchased Digital Rights to such Content.

b.    You represent and warrant that you have all intellectual property rights necessary for you to grant Epic the rights set forth in this Agreement, including all necessary patent, trademark, trade secret, copyright, or other proprietary rights, in and to your Content.  If third-party materials are included in the Content, you represent and warrant that you have the right to distribute the third-party material in the Content.  You agree that you will not submit material to the Marketplace that is copyrighted, protected by trade secret, or otherwise subject to third party proprietary rights, including patent, privacy, and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to submit the material to the Marketplace.

c.    You represent and warrant that your Content does not contain: (i) any software, content, or other material licensed under a Prohibited License; or (ii) any software, content, or other material that is a modification or derivative of any software, content, or material licensed under a Prohibited License.

d.    You expressly acknowledge and agree that Epic shall be entitled to forward your name, address, and other contact details to any third party that reasonably claims that you do not have all necessary intellectual property rights, including all necessary patent, trademark, trade secret, copyright, or other proprietary rights, in and to your Content.  

e.    During the term of this Agreement, you authorize Epic to act as an authorized representative of you to enforce your rights against third parties that Epic knows or suspects are reproducing, distributing, selling, using, or otherwise exploiting unauthorized copies of Content, whether in violation of the EULA, your rights, or otherwise). The foregoing authorization is nonexclusive, and Epic shall be under no obligation to pursue enforcement of your rights in the Content. You will reasonably cooperate with and assist Epic in such enforcement activities. Such enforcement activities may include sending cease and desist notices to suspected infringers of your rights in the Content, issuing takedown notices to service providers pursuant to the Digital Millennium Copyright Act, and pursuing such other enforcement actions as Epic may deem appropriate. However, Epic will not file any lawsuit or other formal action against a suspected infringer in a court or with any other governmental authority on behalf of you without first consulting with and obtaining your approval. Unless otherwise agreed by the Parties, (i) you will have no obligation to reimburse Epic for its costs and expenses incurred in such enforcement activities, and (ii) if Epic recovers any royalties or other damages in connection with such enforcement action on behalf of you, Epic may retain twelve percent (12%) of such amounts, after recoupment of legal costs and expenses, in consideration of its enforcement efforts, and will remit the remainder to you.


3.    Use of Brand Features and Developer Materials

a.    Each Party shall own all right, title, and interest, including without limitation all intellectual property rights, relating to its own Brand Features.  Except to the limited extent expressly provided to Epic in this Agreement, neither Party grants, nor shall the other Party acquire, any right, title, or interest (including, without limitation, any implied license) in or to any Brand Features of the other Party.  

b.    Subject to the terms and conditions of this Agreement, you grant to Epic a limited, non-exclusive license during the term of this Agreement to use and display your Brand Features and Developer Materials, submitted by you to Epic, including your Brand Features incorporated in your Content, for use solely in connection with the marketing and distribution of your Content and sales of Digital Rights through the Marketplace, or to otherwise fulfill its obligations or exercise its rights under this Agreement.  

c.    Nothing in this Agreement gives you a right to use any of Epic’s Brand Features.


4.    Pricing and Payment

a.    For Digital Rights that Epic agrees to sell to a Customer through the Marketplace, you will sell to Epic, and Epic will purchase from you for resale to the Customer, such Digital Rights through the Marketplace. Notwithstanding the Base Price, as an independent reseller, you acknowledge that Epic may resell Digital Rights to Customers at any price in its discretion. You agree that Epic may resell the Digital Rights either to Customers directly or to any affiliate for purposes of such affiliate’s resale to Customers. 

b.    Epic will pay to you the Purchase Amount for Digital Rights sold by Epic to Customers, less any applicable withholding taxes. Epic will pay such amounts to you on a monthly basis (45 days after the end of the calendar month following transactions) by electronic funds transfer so long as the total amount due to you is at least $100.00.  However, in no event shall Epic withhold any amounts for longer than one year.  If Epic incurs any Automated Clearing House (ACH) or wire transfer fees, bank fees, or other charges to transfer to you the amounts payable to you, Epic reserves the right to deduct such charges from the amounts paid to you.  Epic bears no responsibility for any wire transfer fees, bank fees, or other charges incurred by you. All amounts stated in this Agreement are in United States Dollars.

c.    You are solely responsible for the payment of any taxes, levies, and VAT or the like that are due on any payments you receive from Epic regardless of which taxing jurisdiction has the authority to collect such taxes, levies, and VAT or the like.  

d.    Epic may, in connection with the sale of Digital Rights to Customers, and in its discretion, issue to Customers refunds, rebates, and credits.  As described in Section 11, any refunds will be deducted from the calculation of the Purchase Amount.  And for purposes of calculating the Purchase Amount, the amount of any such rebates and credits issued to consumers will be deducted from the Base Price used to calculate the Purchase Amount payable by Epic to you.

e.    In order to facilitate payment, if you are a United States-based entity, you shall provide Epic with a Form W-9, bank account details, and/or such other documents and information as reasonably requested by Epic.  Otherwise, you shall provide Epic with a Form W-8BEN, bank account details, and/or such other documents and information as reasonably requested by Epic.  


5.    Your Representations and Warranties

a.    You represent and warrant that the Developer Materials are truthful, accurate, and do not misrepresent you or the Content, for example, by way of screen shots that do not match the Content or quality of the Content.

b.    You are solely responsible for: 
i.    providing Customer support and maintenance with respect to your Content and any Customer complaints about your Content; and
ii.    providing to Customers, for Customer support purposes, accurate contact information in each Content detail page.

c.    You represent and warrant that none of your Content, Brand Features, or Developer Materials:
i.    violates, infringes, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person;
ii.    defames any person or violates their rights of publicity or privacy;
iii.    is in violation of any contract or terms of service that you have entered into with any third party;
iv.    is in violation of any applicable law or regulation; 
v.    contains any viruses, adware, spyware, or other malicious content;
vi.    interferes with, disrupts, damages or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, Customers, Epic, Payment Processors or any network operator; or
vii.    otherwise fails to comply with Epic’s Marketplace Submission Guidelines or other standard Epic policies for the Marketplace.


6.    Termination

a.    This Agreement will continue to apply until terminated by either you or Epic as set out below.  

b.    You may terminate this Agreement upon 90 days prior written notice to Epic for any or no reason.

c.    Epic may terminate this agreement upon 30 days prior written notice to you for any or no reason.  In addition, Epic may at any time terminate this Agreement immediately upon written notice to you if: 
i.    You breach any representation, warranty, or other term of this Agreement and such breach remains uncured for fifteen (15) days following notice of such breach from Epic; 
ii.    You liquidate, dissolve, or discontinue your business for any reason;
iii.    You enter into bankruptcy, voluntarily or involuntarily;
iv.    Epic is required to do so by law; or 
v.    Epic decides to no longer provide the Marketplace.
 
You shall immediately notify Epic in writing in the event that any of the events or circumstances specified in this subsection occur.
 
d.    Following the termination of this Agreement for any reason, (i) such termination shall not affect the Digital Rights of Customers who have purchased the Digital Rights before such termination, and Digital Rights will continue after such termination in accordance with the terms of the EULA, (ii) Customers will have no obligation to remove your Content from Customers’ equipment, (iii) Epic may retain and use copies of Content and Developer Materials to enable Customers to download or re-download Content for which they purchased Digital Rights before termination of this Agreement. 

e.    To the extent permitted by law, the following Sections of this Agreement shall survive its expiration or termination for any reason: 2, 6-10.


7.    Disclaimer of Warranties

a.    YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR PARTICIPATION IN THE MARKETPLACE IS AT YOUR SOLE RISK AND THAT THE MARKETPLACE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.

b.    YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT EPIC IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED USE OF YOUR CONTENTS OUTSIDE THE MARKETPLACE INCLUDING, WITHOUT LIMITATION, ANY SALE OR OTHER KIND OF DISTRIBUTION OF CONTENT ON PIRATE WEB SITES OR THE LIKE.  

c.    EPIC FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.


8.    Limitation of Liability

a.    YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND THAT EPIC HAS NO RESPONSIBILITY TO YOU OR ANY THIRD PARTY FOR) THE CONTENT DISTRIBUTED THROUGH THE MARKETPLACE AND FOR THE CONSEQUENCES (INCLUDING ANY LOSS OR DAMAGE WHICH EPIC OR ANY THIRD PARTY MAY SUFFER) OF SUCH DISTRIBUTION.

b.    IN NO EVENT SHALL EPIC GAMES, INC. OR EPIC GAMES INTERNATIONAL S.À R.L., ACTING THROUGH ITS SWISS BRANCH, THEIR AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “EPIC PARTIES”) BE LIABLE FOR LOSS OF PROFITS, OR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE BREACH OF THIS AGREEMENT BY EPIC, THE MARKETPLACE, THE USE OF (OR INABILITY TO USE) THE MARKETPLACE, THE FUNCTIONALITY (OR LACK OF FUNCTIONALITY) OF THE MARKETPLACE, AND/OR ERRORS OR BUGS WITHIN THE MARKETPLACE, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL THE EPIC PARTIES’ LIABILITY ARISING UNDER, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DIRECT OR INDIRECT DAMAGES, LOSSES, OR INJURIES, EXCEED AN AMOUNT EQUAL TO AMOUNT OF THE PURCHASE AMOUNT PAID TO YOU HEREUNDER IN THE TWELVE MONTH PERIOD PRECEDING THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW.  THE EPIC PARTIES SHALL BEAR NO RISK, OR HAVE ANY RESPONSIBILITY OR LIABILITY, OF ANY KIND TO YOU OR TO ANY THIRD PARTIES WITH RESPECT TO THE QUALITY (OR LACK THEREOF), OPERATION (OR LACK THEREOF) AND/OR PERFORMANCE (OR LACK THEREOF) OF ALL AND/OR ANY PORTION OF THE MARKETPLACE.


9.    Indemnification

To the maximum extent permitted by law, you shall defend, indemnify, and hold harmless the Epic Parties from and against any and all third party claims, actions, suits, or proceedings, as well as any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and all reasonable related costs) arising out of or accruing from (i) the Content, Developer Materials or your Brand Features, (ii) your breach any representation, warranty or other term of this Agreement, (iii) your customer service and other interactions with Customers, (iv) any contract you have entered into with any third party, or (v) your violation of any applicable law or regulation.


10.    Miscellaneous

a.    Amendment.  Epic may issue an amended Agreement at any time in its discretion by providing notice to you or by providing you with digital access to the amended Agreement when you next log in to your Epic account, access the Marketplace, or upload additional Content.  You are not required to accept the amended Agreement.  However, in order to continue accessing your account or the Marketplace or to upload additional Content, you must accept the amended Agreement.  By logging in to your account, using the Marketplace, or uploading additional Content, you hereby agree to be bound by the amended Agreement then most recently issued by Epic.  If you do not accept the amended Agreement, you may not log in to your Account, access the Marketplace, or upload additional Content.  If you are a legal entity, acceptance of an amended Agreement by any of your employees, contractors, representatives or other users will be binding on you.

b.    Class action waiver.  You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Marketplace, the Content or this Agreement.  You also agree not to seek to combine any action or arbitration related to the Marketplace, the Content or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.

c.    Notices.  Where this Agreement calls for notice from Epic, including written notice, Epic may provide notice to you at the email address that you provided when you registered to create an account with Epic or distribute content through the Marketplace (or any updated email address you subsequently provide).  Epic’s notices to you will be effective when they are sent to that email address.

d.    Assignment.  You shall not assign this Agreement or any of its rights hereunder, nor delegate or otherwise transfer any of its obligations hereunder, to any third party without the prior written consent of Epic.  Any attempted or purported assignment, delegation or other such transfer, directly or indirectly, without the required consent of Epic shall be void.  Subject to the foregoing, this Agreement shall inure to the benefit of the Parties and their respective successors and permitted assigns.  Epic shall have the right to assign any and all of its rights and obligations hereunder.

e.    Independent Contractors.  The relationship between you and Epic, respectively, is that of licensor and licensee.  Both Parties are independent contractors and (except with respect to your authorization in Section 2.e) are not the legal representative, agent, joint venturer, partner, or employee of the other Party for any purpose whatsoever.  Neither Party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

f.    Governing Law.   This Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina, excluding that body of law related to choice of laws.  Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute arising hereunder shall be brought in the Superior Court of Wake County, State of North Carolina or the United States District Court for the Eastern District of North Carolina.  Each of the Parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of any such action and agrees that any service of process may be effected by delivery of the summons in the manner provided in the delivery of notices set forth in Section 10.c above.

g.    Section Headings.  The section headings used in this Agreement are intended primarily for reference and shall not by themselves determine the construction or interpretation of this Agreement or any portion hereof.

h.    Entire Agreement.  This Agreement constitutes the entire agreement between Epic and you and supersedes all prior or contemporaneous agreements, proposals, understandings, and communications between Epic and you, whether oral or written, with respect to the subject matter hereof. For clarity, this Agreement does not amend or supersede Epic’s Terms of Use or other agreements you may enter into with Epic in connection with the Marketplace or the Unreal Engine.

i.    Waiver.  No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.  No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced.  Any waiver by either Party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.

j.    Rights in certain jurisdictions. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance.  In the event that certain provisions of this Agreement are not enforceable in your jurisdiction, those provisions shall be enforceable to the furthest extent possible under applicable law.

k.    Severability.  In the event that any provision of this Agreement (or portion thereof) is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, such provision (or portion thereof) shall be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.

l.    Remedies.  Unless expressly set forth to the contrary, either Party’s election of any remedies provided for in this Agreement shall not be exclusive of any other remedies, and all such remedies shall be deemed to be cumulative.  Breaches of certain sections of this Agreement would cause significant and irreparable harm to Epic, the extent of which would be difficult to ascertain.  Accordingly, in addition to any other remedies including without limitation equitable relief to which Epic may be entitled, in the event of a breach by you or any of your employees or contractors of any such sections of this Agreement, Epic shall be entitled to the immediate issuance without bond of ex parte injunctive relief or, if a bond is required under applicable law, on the posting of a bond in an amount not to exceed $50,000, enjoining any breach or threatened breach of any or all of such provisions.

m.    Translations.  The original of this Agreement is in English; any translations are provided for reference purposes only.  You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.

n.    No third party beneficiaries.  You agree that there are no third party beneficiaries to this Agreement and that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.

o.    Epic obligations subject to law.  Epic’s obligations are subject to existing laws and legal process, and Epic may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.


11.    Definitions

As used in this Agreement, the following capitalized words have the following meanings:

Agreement” means this Marketplace Distribution Agreement.

Base Price” means, with respect to Digital Rights, an amount used to calculate the Purchase Amount applicable to such Digital Rights. The Base Price for Digital Rights is determined by you in your discretion.

Brand Feature” means any trade name, trademark, service mark, logo, domain name, or other distinctive brand feature of each Party, respectively, as owned (or licensed) by such Party from time to time.

Content” means content uploaded to the Marketplace through your Epic account or otherwise provided by you to Epic for placement on the Marketplace, which content is approved by Epic.

Customer” means any natural person, company, or other legal entity that will acquire licenses to Content via the Marketplace.

Developer Materials” means text, screenshots, videos and other content and information provided by you to Epic and relating to you and/or your Content.

Digital Rights” has the meaning set forth in Section 1.b.

Epic” means, depending on the location of your primary residence or primary place of business:
a.    Epic Games, Inc., a Maryland Corporation having its principal business offices at Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A.; or

b.    Epic Games International S.à r.l., a Luxembourg Société à Responsibilité Limitée, located at Atrium Business Park, 33 rue du Puits Romain, L8070 Bertrange, Grand Duchy of Luxembourg, acting through its Swiss branch, having its principal business offices at Platz 3, 6039 Root, Switzerland.

Marketplace” means an online marketplace owned and operated by Epic which permits the distribution of Content to Customers by Epic.  

Party” or “Parties” means Epic and/or you.

Payment Processor” means any party authorized by Epic to provide payment processing services for payments from Customers to Epic or payments made from Epic to you for Content distributed via the Marketplace. 

Prohibited License” means any license to software, content, or other materials with terms that include a requirement, as a condition of use, modification, or distribution of such materials, that such materials or other software incorporated into, derived from, or distributed with such materials be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributable at no or minimal charge or only for non-commercial purposes.

Purchase Amount” means, with respect to Digital Rights sold by Epic to a Customer, and for which Epic has received payment that is not refunded to the Customer, eighty-eight percent (88%) of the Base Price established by you for such Digital Rights.

You” or “your,” whether or not capitalized in this Agreement, means you as an individual or the legal entity exercising or granting rights under this Agreement through you.  For legal entities, “you” and “your” include any entity that controls, is controlled by, or is under common control with you, where “control” means the power, direct or indirect, to cause the direction or management of the entity in question, whether by contract or otherwise, or ownership of 50% or more of the outstanding shares or beneficial ownership of the entity in question.