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Provider Agreement

  1. Background
 
  1.1 The ShiVa Store is a publicly available site on which Providers and ShiVa Technologies SAS ("ShiVaTech" from here on) can distribute Assets to Customers.
  1.2 This Agreement regulates the legal relationship between Provider as a content creator and ShiVaTech as the operator of the ShiVa Store.
  1.3 The purpose of the Agreement is to establish the legal framework for the Providers distribution of their Assets via ShiVa Store service.
  1.4 This Agreement is intended to protect the interests of Provider as well as those of ShiVaTech. Provider has been encouraged to examine this Agreement carefully and has been given the opportunity to ask clarifying questions prior to signing.

 
  2. Definitions
 
  2.1 For the purposes of this Agreement with pertaining appendices, the below terms shall have the following meanings unless otherwise stated or clear from the context:
  • "Agreement" This ShiVa Store Provider Agreement with pertaining appendices.
  • "Assets" Assets shall mean (i) software designed in order to facilitate the development of electronic games (ii) content (for example – without limitation – computer graphics, including 3D computer graphics, sounds and music), tutorials and other digital materials created in order to become integrated parts of electronic games and interactive media in accordance with the ShiVa Store Guidelines in force at any time, and distributed via the ShiVa Store.
  • "Brand Features" Any trade name, trade mark, service mark, logo, domain name, and other distinctive brand feature of each Party, respectively, as owned (or licensed) by such Party from time to time
  • "Customer" Any person, company or other legal entity that will acquire licenses to Assets via the ShiVa Store.
  • "Incorporated Content" Content that cannot be extracted from an Asset and used as stand-alone content without the use of reverse engineering tools or techniques, and which is not intended to be further distributed outside of the Asset that contains the Incorporated Content.
  • "Provider " Any person, company or other legal entity who has accepted this Agreement by clicking and who is registered and approved by the ShiVa Store to distribute Assets in accordance with the terms of this Agreement
  • "Party" or "Parties" ShiVaTech and/or Provider
  • "Payment Processor(s)" Any party authorized by ShiVaTech to provide payment processing services of payment from Customers for Assets distributed via the ShiVa Store.
  • "ShiVaTech" "ShiVa Technologies SAS" - SAS au capital de 11.000 Euros – RCS GRASSE 797 853 595 - Siège social : 48 chemin des Castors, villa 5, 06130 Grasse
  • "ShiVa Store" The ShiVa Store site operated by ShiVaTech, where Providers and ShiVaTech can distribute Assets directly to Customers.


 
  3. Accepting this Agreement
 
  3.1 This Agreement forms a legally binding contract between Provider and ShiVaTech, in relation to Provider's use of the ShiVa Store to distribute Assets. In order to use the ShiVa Store to distribute Assets, Provider must first agree to this Agreement by way of clicking to accept this Agreement where this option is made available to Provider. Provider may not distribute Assets on the ShiVa Store if Provider does not accept this Agreement.
  3.2 Any person who enters into this Agreement on behalf of Provider represents and warrants that he has full legal authority to bind Provider.

 
  4. Pricing and Payments
 
  4.1 This Agreement covers both Assets that Provider chooses to distribute for free and Assets for which Provider charges a fee. All fees for Assets distributed via the ShiVa Store must be processed by the Payment Processor
  4.2 Provider may set the price for Provider's Assets in US Dollars (USD). For practical purposes all prices shall be fixed by Provider at full USD amounts. (For example prices set at 5.99 USD may not be applied). The ShiVa Store may display to Customers the price of Provider's Assets in USD or other currencies that ShiVaTech may consider expedient. ShiVaTech may chose to set different prices in other currencies, and shall not be responsible for the accuracy of the prices set, or for currency and conversion rates.
  4.3 The prices that Provider sets for Assets or the prices that ShiVaTech sets in other currencies than USD (cf. clause 4.2), whichever is applicable, will determine the amount of payment Provider will receive. 70 (seventy) per cent of the sales price (less any bank fees related to the transfer to the Provider and less any taxes, levies and VAT or the like) will be remitted by ShiVaTech to the Provider. The remaining 30 (thirty) percent will be allotted to ShiVaTech.
  4.3.1 The parties agree that any balance in favor of Provider will be calculated by ShiVaTech and communicated to Provider within the first ten days following the expiry of each calendar quarter for the immediately preceding calendar quarter. No later than ten days following Providers receipt of the calculated amount in favor of Provider, Provider must forward an invoice to ShiVaTech for the balance (provided that this balance is at least 200 USD). ShiVaTech will pay such balance above USD 200 to Provider no less than 14 days following ShiVaTech's receipt of the invoice.
  4.3.2 However, any balance in favor in of Provider less than 200 USD will not be transferred and shall therefore not be invoiced. In stead such balance below 200 USD will be transferred to the following calendar quarter.
  4.3.3 In the event that the balance for a period of eight consecutive calendar quarters continue to remain below 200 USD, then ShiVaTech will transfer such balance to Provider, less any bank fees related to the transfer to the Provider.
  4.4 Provider is solely responsible for payment of any taxes, levies and VAT or the like on any payments from ShiVaTech regardless of which taxing jurisdiction that has the authority to collect such taxes, levies and VAT or the like.
  4.5 Provider may also choose to distribute Assets for free. If the Asset is free, ShiVaTech shall not be entitled to receive the 30 (thirty) per cent listed in 4.3 above. Provider may not in the future collect charges from Customers for copies of the Assets that those Customers were initially allowed to download for free.
  4.6 Special Refund Requirements
  4.6.1 The Payment Processor's standard terms and conditions regarding refunds will apply except the following terms apply to Provider's distribution of Assets on the ShiVaTech Asset Store:
  4.6.2 Assets that can be previewed by the Customer (such as static pictures): No refund is required or allowed.
  4.6.3 Assets that cannot be previewed by the Customer (such as software): Provider authorizes ShiVaTech to give the Customer a full refund of the Asset price if the Customer requests the refund within 2 (two) weeks after purchase.
  4.6.4 In the event that a Customer returns any Asset, all license rights granted herein terminate and the Customer must immediately destroy any and all copies contained on any type of media under the control or possession of the Customer.
  4.7 Provider Support
  4.7.1 Provider will be solely responsible for support and maintenance of Provider's Assets and any complaints about Provider's Assets. Provider's contact information will be displayed in each Asset detail page and made available to Customers for customer support purposes.
  4.7.2 Failure to provide adequate support for Provider's Assets may result in low Asset ratings, less prominent Asset exposure, low sales and billing disputes. In the event of billing disputes for Assets sold for less than 50 USD ShiVaTech may at Provider's expense decide that the full purchase price shall be refunded to the Customer and charged back in full to the Provider, in addition to any handling fees charged by the Payment Processor. Chargeback requests for Assets sold at 50 USD or more will be handled in accordance with the Payment Processor's standard policy.
  4.8 Reinstalls
  4.8.1 Customers are allowed unlimited reinstalls of each Asset distributed via the ShiVa Store, provided however that if Provider removes Asset(s) from the ShiVa Store pursuant to clauses (i), (ii), (iii) or (iv) of Section 8.1.1, such Asset(s) shall be removed from all portions of the ShiVa Store and Customers shall no longer have a right or ability to reinstall the affected Assets.
  4.9 Donations
  4.9.1 Providers of free Assets may request and accept indirect donations for their work, provided that the following conditions are complied with:
  4.9.1.1 Donations shall be handled via the Provider's own payment transaction system on their own website.
  4.9.1.2 Provider's free Assets may not have a special enhanced /version of this Asset which Provider markets outside of the ShiVa Store (and thus circumventing the payment in favour of ShiVaTech, as specified in 4.3 above.
  4.9.1.3 Assets themselves may not explicitly mention, prompt or request donations when embedded in a built ShiVa project (executable, browser game, etc.) nor in the editor if it uses editor classes.
  4.9.1.4 Donation requests shall be mentioned by use of the text: "donations accepted" on the Asset's ShiVa Store page/description itself.

 
  5. Use of the ShiVa Store by Provider
 
  5.1 Except for the license rights granted by Provider in Section 6 below, ShiVaTech agrees that it obtains no right, title or interest from Provider (or Provider's licensors) under this Agreement in or to any Asset supplied by Provider, including any intellectual property rights which subsist in those Assets.
  5.2 Provider agrees to use the ShiVa Store only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from France or other relevant countries).
  5.3 Provider agrees that Provider will protect the privacy and legal rights of Customers. If the Customers provide Provider with, or Provider's Assets access or use, Customer names, passwords, or other login information or personal information, Provider must make the Customers aware that the information will be available to Provider, and Provider must provide legally adequate privacy notice and protection for those Customers. Further, Provider may only use that information for the limited purposes for which the Customer has given Provider permission to do so. If Provider's ShiVa store personal or sensitive information provided by Customers, it must do so securely and only for as long as it is needed and in full compliance with any applicable law regarding Provider's access or use of such information. But if the Customer has opted into a separate agreement with Provider that allows Provider or Provider's Asset to store or use personal or sensitive information directly related to Provider's Asset then the terms of that separate agreement and any applicable privacy laws will govern Provider's use of such information.
  5.4 Prohibited Actions Provider agrees that Provider will not engage in any activity with the ShiVa Store, including the development or distribution of Assets, that 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, ShiVaTech or any network operator.
  5.4.1 Provider may not use customer information that Provider has obtained from the ShiVa Store to sell or distribute Assets outside of the ShiVa Store.
  5.5 Non-Compete
  5.5.1 Provider may not use the ShiVa Store to distribute or make available any Asset whose primary purpose is to facilitate the distribution of Assets outside of the ShiVa Store.
  5.6 Provider agrees that Provider is solely responsible for (and that ShiVaTech has no responsibility to Provider or to any third party for) any Assets Provider distributes through the ShiVa Store and for the consequences of Provider's actions (including any loss or damage which ShiVaTech may suffer) by doing so.
  5.7 Provider agrees that Provider is solely responsible for (and that ShiVaTech has no responsibility to Provider or to any third party for) any breach of Provider's obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which ShiVaTech or any third party may suffer) of any such breach.
  5.8 Asset Ratings
  5.8.1 The ShiVa Store will allow Customers to rate Assets. Only Customers who download the applicable Asset will be able to rate it. Asset ratings will be used to determine the placement of Assets on the ShiVa Store with higher rated Assets generally given better placement, subject to ShiVaTech's ability to change placement at ShiVaTech's sole discretion. ShiVaTech reserves the right to display Assets to Customers in a manner that will be determined at ShiVaTech's sole discretion.
  5.8.2 Provider's Assets may be subject to ratings to which Provider may not agree. In addition other factors that ShiVaTech deem relevant such as (but not limited to) community ratings and Provider's history may influence such ratings. Provider may contact ShiVaTech if Provider has any questions or concerns regarding such ratings.
  5.9 Marketing Provider's Assets
  5.9.1 Provider will be responsible for uploading Provider's Assets to the ShiVa Store , providing required Asset information to Customers, and accurately disclosing the security permissions necessary for the Asset to function on Customer's equipment. Assets that are not properly uploaded will not be published in the ShiVa Store.
  5.9.2 In addition Provider will be responsible for updating the Assets with new versions on the ShiVaTech platform.
  5.10 Restricted Content
  5.10.1 Provider agrees that it will not upload, post or otherwise transmit via the ShiVa Store any Asset or other content, which is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to ShiVaTech or ShiVa Store or Customers. In addition any Asset that Provider distributes on the ShiVa Store must adhere to the ShiVa Store Guidelines in force at any time. While ShiVaTech does not undertake any legal obligation to monitor the Assets or their content, ShiVaTech reserves the right to do so, and if ShiVaTech is notified by Provider or otherwise becomes aware and determines in its sole discretion that an Asset or any portion thereof that Provider has uploaded to the ShiVa Store does not adhere to the ShiVa Store Guidelines in force at any time, then ShiVaTech shall be entitled to demand that Provider edits and makes such other changes in the Asset, including – but not limited to – changes in materials and descriptions that form part of the Asset, for example with a view to adapt the Asset to the design of the ShiVa Store and to avoid any defects in relation to the design of the ShiVa Store . Finally ShiVaTech shall itself be entitled to edit and make such changes in the Asset. In addition Assets may be withdrawn from the ShiVa Store at ShiVaTech's sole discretion.
  5.10.2 Provider represents and warrants that images and text that is intended to market the Assets that Provider has uploaded to ShiVa Store does not misrepresent the Asset, for example – without limitation – by way of screen shots that do not match the content of the Asset.

 
  6. License Grants
 
  6.1 Provider grants to ShiVaTech a nonexclusive, worldwide, and royalty-free license to: copy, perform, display, and use the Assets for administrative and demonstration purposes in connection with the operation and marketing of the ShiVa Store and ShiVaTech's other products.
  6.2 Except for the payment of the 70 (seventy) per cent listed in 4.2 above Provider grants to ShiVaTech a non exclusive, and royalty-free license to distribute the Assets from the ShiVa Store.
  6.3 ShiVaTech may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this Agreement, provided that such consultants and contractors will be subject to the same obligations as ShiVaTech. After termination of this Agreement, ShiVaTech will not distribute Provider's Assets, but may retain and use copies of the Assets in order for ShiVaTech to be able to fulfill any obligation towards Customers that will survive the removal of an Asset from the ShiVa Store (for example reinstalls cf. clause 4.8).
  6.4 Provider grants to ShiVaTech a non-exclusive, worldwide, time unlimited license to any Asset that Provider uploads to the ShiVa Store in any medium now known or hereinafter invented to: (a) reproduce, license, and distribute Provider's Assets on Provider's behalf; and to publicly perform, publicly display, digitally perform, or transmit for promotional and commercial purposes; (b) create and use samples of the Assets and the contents thereof for the purpose of demonstrating or promoting Provider's Assets or those of the ShiVa Store ; (c) use any trademarks, service marks or trade names incorporated in Provider's Asset in connection with Provider material; and (d) use the name and likeness of any individuals represented in Providers's Asset only in connection with Provider's material.
  6.5 The Provider grants to the Customer who acquires an Asset submitted by the Provider, a nonexclusive, worldwide, license in any medium now known or hereinafter invented to: (a) reproduce, post, promote, license, sell, publicly perform, publicly display, digitally perform, or transmit the Asset for promotional and commercial purposes; (b) use any trademarks, service marks or trade names incorporated in the Asset; and (c) use the name and likeness of any individuals represented in the Asset. The Customer's license to Assets in this paragraph is limited to content that is not Incorporated Content. Any other use or republication, including sale or distribution of content is prohibited. Approved distribution or use of content includes, but is not limited to:
 
  6.5.1 As rendered still images or moving images; licensed as part of a feature film, broadcast, or stock photography.
  6.5.2 As purchased by a creator of games as part of a game if the content of the Asset is contained inside a proprietary format and displays inside the game during play, but not for Customers or end-users to re-package as goods distributed or sold inside a virtual world against real money (as opposed to virtual money).
  6.5.3 As content published within a book, poster, t-shirt or other item.
  6.5.4 As part of a physical object such as a toy.
  6.6 All Assets that Customers purchase (as opposed to free Assets, cf. Section 6.7 below) from the ShiVa Store shall be subject to ShiVaTech's standard EULA, Appendix 1.
  6.7 In the event that Provider distributes free Assets from the ShiVa Store Provider may deliver to ShiVaTech Provider's own EULA for any free Asset at the time that Provider delivers the free Asset to ShiVaTech, provided, however, that Provider's EULA must include and may not be inconsistent with the minimum terms and conditions specified in Appendix 1 and must comply with all applicable laws in all countries where Provider wishes ShiVaTech to allow Customers to download free Assets. ShiVaTech shall allow each Customer to which ShiVaTech allows access to any such free Asset to review Provider's EULA (if any) at the time that that Customer acquires the free Asset, and ShiVaTech shall notify each Customer that the Customer's use of that free Asset is subject to the terms and conditions of Providers EULA (if any). In the event that the Provider does not furnish Providers own EULA for any free Asset to ShiVaTech, Provider acknowledges and agrees that each Customer's use of that free Asset shall be subject to ShiVaTech's standard EULA (Appendix 1).
  6.8 Provider hereby acknowledges that the applicable EULA for each of the Assets is solely between Provider and the Customer and conforms to applicable law, and ShiVaTech shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by Provider or any Customer of any of the terms and conditions of any EULA.
  6.9 Provider represents and warrants that Provider has all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to Provider's Assets. If Provider uses third-party materials, Provider represents and warrants that Provider has the right to distribute the third-party material in the Assets. Provider agrees that Provider will not submit material to ShiVa Store that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless Provider is the owner of such rights or has permission from the rightful owner to submit the material.

 
  7. Brand Features and Publicity
 
  7.1 Each Party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Brand Features. Except to the limited extent expressly provided 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.
  7.2 Subject to the terms and conditions of this Agreement, Provider grants to ShiVaTech and its affiliates a limited, non-exclusive license during the term of this Agreement to display Provider's Brand Features, submitted by Provider to ShiVaTech, for use solely online or on mobile devices and in either case solely in connection with the distribution and sale of Provider's Assets through the ShiVa Store, or to otherwise fulfill its obligations under this Agreement.
  7.3 If Provider discontinues the distribution of specific Assets on the ShiVa Store, ShiVaTech will cease use of the discontinued Assets' Brand Features, except as necessary to allow ShiVaTech to effectuate Section 4.8.
  7.4 Nothing in this Agreement gives Provider a right to use any of ShiVaTech's Brand Features.
  7.5 Publicity
  7.5.1 In addition to the license granted in Sections 7.1 and 7.2 above, for purposes of marketing the presence, distribution and sale of the Provider's Asset in the ShiVa Store , ShiVaTech and its affiliates may include Provider's Brand Features, submitted by Provider to ShiVaTech:
  • (i) within the ShiVa Store and in any ShiVaTech-owned online or mobile properties;
  • (ii) in online or mobile communications outside the ShiVa Store when mentioned along with other Assets from the ShiVa Store ;
  • (iii) when making announcements of the availability of the Asset online or on mobile devices;
  • (iv) in presentations; and
  • (v) in customer lists which appear either online or on mobile devices (which includes, without limitation, customer lists posted on ShiVaTech websites, including the ShiVa Store).
  7.5.2 If Provider discontinues the distribution of specific Assets on the ShiVa Store, ShiVaTech will cease use of the discontinued Assets' Brand Features for such marketing purposes.

 
  8. Asset Takedowns
 
  8.1 Provider's Takedowns
  8.1.1 Provider may remove Provider's Assets from future distribution via the ShiVa Store at any time, but Provider must comply with this Agreement and the Payment Processor's terms of service for any Assets distributed through the ShiVa Store , including but not limited to refund requirements. Removing Provider's Assets from future distribution via the ShiVa Store does not (a) affect the license rights of Customers who have previously purchased or downloaded Provider's Assets, (b) remove Provider's Assets from Customers' equipment or from any part of the ShiVa Store where previously purchased or downloaded Assets are stored on behalf of Customers, or (c) change Provider's obligation to deliver or support Assets or services that have been previously purchased or downloaded by Customers. Notwithstanding the foregoing, in no event will ShiVaTech maintain on any portion of the ShiVa Store (including, without limitation, the part of the ShiVa Store where previously purchased or downloaded Assets are stored on behalf of Customers) any Asset that Provider has removed from the ShiVa Store and provided written notice to ShiVaTech that such removal was due to (i) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (ii) an allegation of defamation or actual defamation, (iii) an allegation of violation, or actual violation, of any third party's right of publicity or privacy, or (iv) an allegation or determination that such Asset does not comply with applicable law.
  8.1.2 If Provider removes an Asset from the ShiVa Store pursuant to clauses (i), (ii), (iii) or (iv) of Section 8.1.1, and a Customer purchased such Asset within a year before the date of takedown, at ShiVaTech's request, Provider must refund to the affected Customer all amounts paid by ShiVa Store Provider Agreement such Customer for such affected Asset, including the 30 (thirty) per cent that ShiVaTech has received, cf. Section 4.3 above.
  8.2 ShiVaTech Takedowns
  8.2.1 While ShiVaTech does not undertake any legal obligation to monitor the Assets or their content, ShiVaTech reserves the right to do so, and, if ShiVaTech is notified by Provider or otherwise becomes aware and determines in its sole discretion that an Asset or any portion thereof or Provider's Brand Features; (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates ShiVaTech's hosting policies or other terms of service as may be updated by ShiVaTech from time to time in its sole discretion; (d) is being distributed by Provider improperly; (e) may create liability for ShiVaTech; (f) is deemed by ShiVaTech to have a virus or is deemed to be malware, spyware or have an adverse impact on ShiVaTech; (g) violates the terms of this Agreement; or (h) the display of the Asset is impacting the integrity of ShiVaTech servers (i.e., Customers are unable to access such content or otherwise experience difficulty), ShiVaTech may demand that Provider fixes the Asset. In addition ShiVaTech shall itself be entitled to edit and make changes in the Asset. Finally ShiVaTech shall be entitled to remove the Asset from the ShiVa Store immediately, or reclassify the Asset at its sole discretion. ShiVaTech reserves the right to suspend and/or bar any Provider from the ShiVa Store at its sole discretion.
  8.2.2 In the event that Provider's Assets are involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third party's right of publicity or privacy, or does not comply with applicable law, and a Customer purchased such Asset within a year before the date of takedown: (i) Provider must refund to ShiVaTech, a sum corresponding to the full purchase prize that the Customer has paid for the Asset in question and ShiVaTech will then repay the full price to the Customer, and (ii) ShiVaTech may, at its sole discretion, withhold from Provider's future sales the amount in subsection (i) immediately above.
  8.2.3 In addition to the reasons specified in Section 8.2.1 ShiVaTech may remove Assets from the ShiVa Store at ShiVaTech's sole discretion at a 30 day notice.

 
  9. Provider's Upgrades of Assets
 
  9.1 Provider agrees that Provider will via the ShiVa Store at no cost to Customers and ShiVaTech supply any upgrades or otherwise updated versions of all Assets that a Customer has acquired from the ShiVa Store . For the avoidance of doubt this does also apply to any Asset that has been distributed for free via the ShiVa Store.

 
  10. Privacy, Information and Confidentiality
 
  10.1 In order to continually innovate and improve the ShiVa Store , ShiVaTech may collect certain usage statistics from the ShiVa Store , including but not limited to, information on how the ShiVa Store is being used.
  10.2 The data collected is examined in the aggregate to improve the ShiVa Store for Customers and Providers and is maintained in accordance with ShiVaTech's privacy policy in force at any time. To ensure the improvement of Assets, ShiVaTech may at its discretion through the web provide limited aggregate data to the Provider.

 
  11. Terminating this Agreement
 
  11.1 This Agreement will continue to apply until terminated by either Provider or ShiVaTech as set out below.
  11.2 If Provider wants to terminate this Agreement, Provider must provide ShiVaTech with thirty (30) days prior written notice (unless this Agreement terminates under Section 15).
  11.3 ShiVaTech may at any time, terminate this Agreement with thirty (30) days prior written notice and with no notice if: (a) Provider has breached any provision of this Agreement; or (b) ShiVaTech is required to do so by law; or (c) Provider ceases being an authorized Provider; or (d) ShiVaTech decides to no longer provide the ShiVa Store.

 
  12. Disclaimer of Warranties
 
  12.1 PROVIDER EXPRESSLY UNDERSTANDS AND AGREES THAT PROVIDER'S USE OF THE ASSET STORE IS AT PROVIDER'S SOLE RISK AND THAT THE SHIVA STORE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
  12.2 PROVIDER'S USE OF THE SHIVA STORE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SHIVA STORE IS AT PROVIDERR OWN DISCRETION AND RISK AND PROVIDER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO PROVIDER'S COMPUTER SYSTEM OR OTHER EQUIPMENT OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
  12.3 PROVIDER EXPRESSLY UNDERSTANDS AND AGREES THAT ShiVaTech IS NOT RESPONSIBLE AND LIABLE FOR ANY UNAUTHORIZED USE OF PROVIDERS ASSETS OUTSIDE THE SHIVA STORE INCLUDING – WITHOUT LIMITATION – ANY SALE OR OTHER KIND OF DISTRIBUTION OF ASSETS FROM PIRATE WEB SITES OR THE LIKE. ShiVaTech EXPRESSLY DISCLAIMS ANY SUCH LIABILITY.
  12.4 ShiVaTech 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.

 
  13. Limitation of Liability
 
  13.1 PROVIDER EXPRESSLY UNDERSTANDS AND AGREES THAT ShiVaTech, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO PROVIDER UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY PROVIDER, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT ShiVaTech OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

 
  14. Indemnifications
 
  14.1 To the maximum extent permitted by law, Provider agrees to defend, indemnify and hold harmless ShiVaTech, its affiliates and their respective directors, officers, employees and agents, from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Provider's use of the ShiVa Store in violation of this Agreement, and (b) Provider's Assets that infringe any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defame any person or violate their rights of publicity or privacy.
  14.2 To the maximum extent permitted by law, Provider agrees to defend, indemnify and hold harmless the applicable Payment Processors (which may include ShiVaTech and/or third parties) and the Payment Processors' affiliates, directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from taxes related to Provider's distribution of Assets distributed via the ShiVa Store.

 
  15. Changes to the Agreement
 
  15.1 ShiVaTech may make changes to this Agreement at any time by sending the Provider notice by email describing the modifications made. ShiVaTech will also post a notification on the ShiVa Store site describing the modifications made.
  15.2 The changes will become effective, and will be deemed accepted by Provider, (a) immediately for those who become Providers after the notification is posted, or (b) for pre-existing Providers, the modified Agreement will become effective upon Provider's acceptance of the modified Agreement (except changes required by law which will be effective immediately). Pre-existing Providers will show their acceptance of the modified Agreement by going to the ShiVa Store site and accepting the modified Agreement.
  15.3 In the event that Provider does not agree with the modifications to the Agreement within thirty (30) days after the date the email is sent, then ShiVaTech will be entitled to suspend the distribution of Provider's Assets until Provider agrees to the modified Agreement.
  15.4 In the event that Provider does not agree with the modifications within ninety (90) days after the date the email is sent, then Provider must terminate Provider's use of the ShiVa Store , which will be Provider's sole and exclusive remedy.

 
  16. General Legal Terms
 
  16.1 This Agreement constitutes the whole legal agreement between Provider and ShiVaTech and governs Provider's use of the ShiVa Store, and completely replaces any prior agreements between Provider and ShiVaTech in relation to the ShiVa Store.
  16.2 Provider agrees that if ShiVaTech does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which ShiVaTech has the benefit of under any applicable law), this will not be taken to be a formal waiver of ShiVaTech's rights and that those rights or remedies will still be available to ShiVaTech.
  16.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
  16.4 Provider acknowledges and agrees that each member of the group of companies to which ShiVaTech belongs shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this Agreement.
  16.5 EXPORT RESTRICTIONS. ASSETS ON THE ASSET STORE MAY BE SUBJECT TO EXPORT LAWS AND REGULATIONS. PROVIDER MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO PROVIDER'S DISTRIBUTION OR USE OF ASSETS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS AND, CUSTOMERS.
  16.6 The rights granted in this Agreement may not be assigned or transferred by Provider without the prior written approval of ShiVaTech and Provider shall not be permitted to delegate its responsibilities or obligations under this Agreement without the prior written approval of ShiVaTech. The rights granted in this Agreement may be assigned or transferred by ShiVaTech without Provider's prior approval. In addition ShiVaTech shall be permitted to delegate its responsibilities or obligations under this Agreement without Provider's approval.
  16.7 This Agreement, and Provider's relationship with ShiVaTech under this Agreement, shall be governed by the laws of France without regard to its conflict of laws provisions. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by simplified arbitration arranged by The French Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by The French Institute of Arbitration and in force at the time when such proceedings are commenced. Notwithstanding this, Provider agrees that ShiVaTech shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
  16.8 The obligations in Sections 6, 7.1 (solely as necessary to permit ShiVaTech to effectuate Section 4.8), 8, 12, 13, 14, and 16 will survive any expiration or termination of this Agreement.

Appendix 1

  1. Parties to the Agreement/ The Subject Matter of the Agreement:
 
  1.1 This ShiVa Technologies SAS EULA (hereinafter referred to as "EULA") is a non-exclusive, legally binding end user license agreement between any individual or a single entity ("END-USER") that acquires an Asset from the ShiVa Store and either (i) ShiVa Technologies SAS ("Licensor" or "ShiVaTech"), or as the case may be (ii) any third party ("Provider") that distributes its Assets from the ShiVa Store . Consequently, this EULA shall apply regardless of whether a purchased Asset is produced by ShiVa Technologies SAS or by a Provider ("Licensor").. This EULA is therefore a non-exclusive, legally binding end user license agreement as the case may be between either (i) ShiVa Technologies SAS and END-User (in which case the term "Licensor" shall refer to ShiVa Technologies SAS), or (ii) Provider and End User (in which case the term "Licensor" shall refer to Provider).
  1.2 In the event that any Provider distributes free Assets through the ShiVa Store, then such Provider shall be allowed to furnish it's own Provider-EULA ("Provider-EULA") that shall be applicable only to such free Assets. In this case END-USER must accept such Provider-EULA by clicking where this option is made available on the ShiVa Store. In the event that the Provider does not furnish a Provider-EULA for any free Asset to ShiVaTech, then such free Assets will also (mutatis mutandis) be subject to this EULA. In this event this EULA is a non-exclusive, legally binding end user license agreement between Provider and End User and in this event the term "Licensor" shall refer to Provider.
  1.3 In the event of any discrepancies between this EULA and any Provider-EULA, the terms of this EULA that are or are intended to safeguard ShiVaTech's interests shall prevail over the terms of such Provider-EULA and be enforceable between END-USER and ShiVaTech.
  1.4 By installing, copying, accessing, downloading or otherwise using the Assets, End User agrees to be bound the provisions of this EULA and the Provider-EULA as the case may be. All definitions of the Terms shall also apply in this EULA unless the context clearly provides for a different understanding.
  1.5 The subject matter of this EULA is the licensing to END-USER of any Asset acquired by End User from the ShiVa Store. The Assets are licensed, not sold.
  1.6 END USER hereby acknowledges that in the event it acquires an ASSET which in the ShiVa Store is marked as an Asset which is distributed by Provider (as opposed to ShiVaTech), then Provider shall be considered as Licensor of such Asset and, consequently, only Provider (as opposed to ShiVaTech) shall be responsible for any liability whatsoever under, any EULA or any breach by Provider, including (without limitation) liability for infringement of any intellectual property rights, irrespective of the fact that payment takes place to ShiVaTech.

 
  2. END-USER's Rights and Obligations
 
  2.1 END-USER may use the licensed Assets only for their intended purpose. END-USER may only allow the specifically agreed number of users to use each licensed Asset at a time. In the absence of specific agreement each licensed Asset may only be used by one user at a time.
  2.2 END-USER shall pay for the license to the Assets in accordance with the agreement between END-USER and ShiVaTech.
  2.3 Licensor grants to the END-USER a non-exclusive, worldwide, and perpetual license to the Asset to integrate Assets as parts of electronic games and interactive media. END-USER may otherwise not sublicense, rent, lease or lend the Assets. It is emphasized that the END-USERS shall not be entitled to transfer in any way (including, without, limitation by way of sublicense) the Assets in any other way than as integrated parts of electronic games and interactive media. Without limitation of the foregoing it is emphasized that END-USER shall not be entitled to share the costs related to purchasing an Asset and then let any third party that has contributed to such purchase use such Asset (forum pooling).

 
  3. Licensor's Rights and Obligations
 
  3.1 Licensor shall render support services to END-USER only in the event a special agreement to this effect has been entered into.

 
  4. Termination
 
  4.1 Without prejudice to any other rights, Licensor may terminate this EULA if END-USER fails to comply with the terms and conditions of this EULA.
  4.2 END-USER may terminate END-USER's license at any time.
  4.3 In the event that ShiVaTech at its discretion or as a result of a decision made by any competent court or authority makes a refund to END-USER of the fees paid for any Asset, then this EULA shall be considered as terminated.
  4.4 In the event of termination of this EULA all license rights granted herein terminate and END-USER must immediately destroy any and all copies of the Assets contained on any type of media under the control of END-USER.

 
  5. Duplication Rights/Back Up Copy
 
  5.1 END-USER may not make copies of the Assets, except and only to the extent that such activity is expressly permitted under mandatory statutory applicable law. In addition Licensor acknowledges that copies of the Assets may be made when the Assets have been integrated as parts of electronic games and interactive media, cf. Section 2.3 above.
  5.2 After installation of one copy of the Asset pursuant to this EULA, END USER may keep the original copy of the Asset solely for back up or archival purposes.

 
  6. Reverse Engineering, Decompilation, and Disassembly
 
  6.1 END USER may not reverse engineer, decompile, or disassemble the Assets, except and only to the extent that such activity is expressly permitted under mandatory statutory applicable law.

 
  7. Trademarks
 
  7.1 This EULA does not grant END-USER any rights in connection with any trademarks or service marks of Licensor, Provider or Licensor's other suppliers.

 
  8. Upgrades and Support
 
  8.1 Assets identified as upgrades replace and/or supplement the licensed Assets.
  8.2 Licensor may at its own discretion from time to time provide upgrades of theAssets to END USER without requesting further payment. Irrespective hereof END-USER is only entitled to licenses to upgrades if END-USER has entered into an Upgrade Agreement with Licensor. END-USER may use the upgraded Assets only in accordance with the terms of this EULA.
  8.3 END-USER is only entitled to support if END-USER has entered into a Support Agreement with Licensor.

 
  9. Copyright
 
  9.1 The Assets are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties
  9.2 All title and intellectual property rights in and to the Assets (including but not limited to any software, images, photographs, animations, graphics, 3D graphics, video, audio, music, text, tutorials, and "applets" incorporated into the Assets), the accompanying printed materials, and any copies of the Assets are owned by Licensor. All rights not expressly granted are reserved by Licensor.

 
  10. Disclaimer of Warranties
 
  10.1 END-USER UNSDERSTANDS AND ACCEPTS THAT PRIOR TO PLACING ANY ASSET ON THE SHIVA STORE, ShiVaTech DOES NOT UNDERTAKE ANY LEGAL OBLIGATION TO MONITOR, PRE-SCREEN, REVIEW, FLAG, FILTER, MODIFY, REFUSE OR REMOVE ANY ASSET OR THEIR CONTENT FROM THE SHIVA STORE. CONSEQUENTLY, END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE ASSETS IS AT END-USER'S SOLE RISK AND THAT THE ASSETS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, LICENSOR, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO END-USER THAT:
  • (A) END-USER'S USE OF THE ASSETS WILL MEET END-USER'S REQUIREMENTS,
  • (B) END-USER'S USE OF THE ASSETS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
  • (C) ANY INFORMATION OBTAINED BY END-USER AS A RESULT OF END-USER'S USE OF THE ASSETS WILL BE ACCURATE OR RELIABLE, AND
  • (D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO END-USER AS PART OF THE ASSETS WILL BE CORRECTED.
  10.2 END-USER'S USE OF ANY ASSETS IS AT END-USER'S OWN DISCRETION AND RISK AND END-USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO END-USER'S COMPUTER SYSTEM, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
  10.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES TERMS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES TERMS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY ASSETS.
  10.4 NONE OF THE ASSETS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE ASSETS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

 
  11. Limitation of Liability
 
  11.1 END-USER EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR AND ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES SHALL NOT BE LIABLE TO END-USER UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY END-USER THROUGH END-USER'S USE OF THE ASSETS, INCLUDING ANY LOSS OF DATA, GOODWILL, BUSINESS REPUTATION OR OTHER INTANGIBLE LOSS WHETHER OR NOT LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
  11.2 END-USER EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO END-USER FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY END-USER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
  • (I) ANY RELIANCE PLACED BY END-USER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN END-USER AND LICENSOR OR ANY, DEVELOPER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS IN THE ASSETS OR ON THE SHIVA STORE;
  • (II) ANY CHANGES WHICH LICENSOR MAY MAKE TO THE ASSETS OR ON THE SHIVA STORE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SHIVA STORE OR THE ASSETS (OR ANY FEATURES WITHIN THE ASSETS);
  • (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH END-USER'S USE OF THE ASSETS;
  • (IV) END-USER'S FAILURE TO PROVIDE ShiVaTech WITH ACCURATE ACCOUNT INFORMATION;
  11.3 NOTHING IN THE TERMS EXCLUDES THE LIABILITY FOR LICENSOR, ITS SUBSIDIARIES OR AFFILIATES FOR: (I) DEATH AND PERSONAL INJURY CAUSED BY NEGLIGENCE; ( II ) FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY APPLICABLE LAW.

 
  12. Venue and Applicable Law
 
  12.1 This EULA and END-USER's relationship with Licensor under this EULA, shall be governed by the laws of France without regard to its conflict of laws provisions. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by simplified arbitration arranged by The French Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by The French Institute of Arbitration and in force at the time when such proceedings are commenced. Notwithstanding this, Provider agrees that Licensor shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
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