Thank you for your interest in providing prizes to the Versus Prizing Platform. These Terms and Conditions are the legally binding terms and conditions that prize providers must agree to in order to be considered as a prize provider on the Prizing Platform.
IMPORTANT – READ CAREFULLY BEFORE PROCEEDING
These Prize Provider Terms and Conditions (the “Terms”) are entered into between the prize provider (the corporation, business, other entity, or natural person who provides prizes to Versus for distribution on the Prizing Platform) (“Provider”, “you” or “your”) and Versus, LLC (“Versus”, “we” or “us”) and sets forth Provider’s rights and obligations with respect to the provision of prizes to the Prizing Platform (defined below). Additional terms and conditions (“Additional Terms”) may be required for use and distribution of the Prizes, under certain situations, whether by click through or written agreement (which must be signed by an officer of Versus to be enforceable against it), which Additional Terms shall amend these Terms and govern in the event of any conflict.
1. Definitions: The following terms in these Terms shall have the meanings indicated. Unless the context otherwise requires, any of the following terms may be used in the singular or the plural, depending on the reference.
a. “Free Prizing Modes” means the Versus free-to-enter or sponsored-play Prizing Platform that is accessible to users at no charge.
b. “Prize” means the certain Versus approved downloadable content, codes or coupons that provide a discount for online purchases of Provider products or physical products that Provider makes available to Versus for awarding on the Prizing Platform.
c. “Prizing Platform” means the Versus technology and prizing platform as it is integrated within video games available on standard current and future interactive entertainment platforms, including, without limitation, (a) mobile, (b) personal computer (PC), (c) console (e.g. PlayStation 4, Xbox One, Nintendo Switch), and (d) VR/AR.
d. “Territory” means the world.
a. Versus agrees to promote and distribute Provider’s Prizes on the Prizing Platform, as determined by Versus in its sole discretion, and to use commercially reasonable efforts to provide Provider with certain analytics and information about in-game events and players where Provider’s Prizes are distributed in a game or otherwise (“Data”). Provider retains all right, title and ownership in the Data and the Data shall be considered the Confidential Information (defined below) of Versus.
b. Provider agrees to commit a certain mutually agreed upon quantity of Prizes to be distributed on the Prizing Platform.
3. Provider Prizes: Versus shall notify Provider when prizing opportunities become available on the Prizing Platform. Provider will then complete and return to Versus a Prizing Distribution Order Form detailing the current Prizes and quantities it is willing to commit for distribution on the Prizing Platform (such response the “Prizing Indication”). Final selection and placement of Provider’s Prizes will be in the sole discretion of Versus and its video game publishing partners. Provider shall be solely and fully responsible for fulfilment of the Prizes offered on the Prizing Platform and providing Versus with an accurate approximate retail value of each Prize awarded.
4. Partnership Commitment: As part of any Prizing Indication submitted by Provider, Provider shall commit certain quantities of Prizes for distribution on the Prizing Platform based on in-game player achievements. For Free Prizing Modes, Provider shall provide the number of Prizes indicated on the Prizing Indication and Provider shall pay Versus the partnership fee per participant or Prize distributed on the Prizing Platform depending upon the Prizing event.
5. Grant of Rights: Subject to the terms and conditions as set forth in these Terms, Provider grants, in the Territory and during the Term, to Versus, and its various publishers or game developer partners, and each of their successors, licensees and assigns, the irrevocable, non-exclusive right and license to: (i) offer, distribute, and market the Prizes on the Prizing Platform (and any advertising and marketing of the availability of the Prizes in any and all media and manners hereafter known); and (ii) use the Provider’s names, logos, trademarks, title treatments and art (the “Provider Content”) to promote the Prizes in connection therewith.
6. Feedback: In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Prizing Platform (collectively, the “Feedback”), you agree we may use the Feedback to modify our products and services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us an irrevocable, worldwide, royalty-free, fully paid, perpetual, license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Versus website or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
7. Modification to Terms and Notice To You: The Prizing Platform and our related services are evolving. Accordingly, we may change the terms of these Terms from time to time on a going-forward basis. We will notify you of any such material changes by posting notice of the changes on Versus web Prizing Platform and/or, in our sole discretion, by email. Any such modifications become effective upon the earlier to occur of: (i) your acknowledgement of such modifications; or (ii) your continued access to and/or use of the Prizing Platform after we post notice of such modifications. It is your sole responsibility to check the Versus Prizing Platform from time to time to view any such changes to the terms in these Terms and you agree that posting changes there is sufficient notice to you. If you do not agree to any changes, if and when such changes may be made to the Terms, you must cease access to or use of the Prizing Platform.
8. Modifications to the Prizing Platform: We reserve the right to modify or discontinue the Prizing Platform with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Prizing Platform. If you object to any such changes, your sole recourse will be to cease access to the Prizing Platform. Continued use of the Prizing Platform following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Prizing Platform as so modified.
9. Term and Termination: These Terms shall be effective as of the date Provider uses the Prizing Platform and will continue, until terminated in accordance with these Terms (the “Term”). Either party may terminate these Terms at any time, effective on delivery of ninety (90) days prior written notice to the other party. In addition, except as set forth above, either party shall have the right to terminate these Terms and the license(s) granted if: (i) the other party fails to comply with any of the terms and conditions of these Terms and such default has not been cured within fifteen (15) days after receiving written notice of such default from the non-defaulting party; or (ii) the other party terminates or suspends its business, or has wound up or liquidated, voluntarily or otherwise, or fails to make reasonable assurances of its ability to timely and fully meet its obligations under these Terms within a reasonable time upon a reasonable request. Sections 5-15, and all other provisions of these Terms that by their own terms should survive the expiration or earlier termination of these Terms shall so survive.
10. Confidential Information: Provider agrees that the information and reports provided to Provider regarding the Prizing Platform and access and use of the Prizing Platform contains confidential information (“Confidential Information”), including trade secrets, know-how and other information that are the exclusive property of Versus or its licensors. During the period these Terms are in effect and at all times after its termination, Provider shall maintain the confidentiality of this Confidential Information and shall not sell, license, sublicense, publish, display, distribute, disclose, or otherwise make available this Confidential Information to any third party nor use such Confidential Information except as expressly authorized by these Terms or any applicable Additional Terms. Provider shall not disclose any such information concerning the Prizing Platform to parties who are not employees or permitted agents or contractors (including, without limitation, outsourcers) of Provider without Versus’ prior written consent. Provider agrees that Provider will take appropriate action by instruction, agreement, or otherwise with Provider’s employees and permitted agents and contractors to satisfy Provider’s obligations under these Terms with respect to use, protection, and security of Versus’ confidential information. It is further understood and agreed that money damages alone would not be a sufficient remedy for any breach of Provider’s obligations under this Section 10. In the event of a breach or anticipatory breach of this Section, Versus will be entitled to seek equitable relief in addition to any other rights or remedies provided by law or under these Terms, without the need to post any bond or surety or establish a likelihood of harm. The obligations of confidentiality and restriction on use contained herein shall not apply to any confidential information that Provider is clearly able to demonstrate: (i) is required to be disclosed by applicable law or regulation; provided, Provider first gives Versus notice and an opportunity to limit the disclosure; (ii) was lawfully received by the Provider from a third party, which third party was, to the knowledge of the Provider, free of any obligation of confidentiality; (iii) was already in the lawful possession of the Provider without an obligation to maintain its confidentiality prior to disclosure by Versus; or (iv) becomes known to the general public not due to any act or omission by Provider.
11. Disclaimers: THE PRIZING PLATFORM AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED ON AN “AS IS” BASIS AND VERSUS AND ITS LICENSORS, IF ANY, MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRIZING PLATFORM, DOCUMENTATION OR OTHER ACCOMPANYING MATERIAL OR SERVICES. VERSUS SPECIFICALLY DISCLAIMS (AND PROVIDER WAIVES) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. IMPLIED WARRANTIES ON THE PRIZING PLATFORM THAT CANNOT BE LEGALLY DISCLAIMED, IF ANY, ARE LIMITED TO SIXTY (60) DAYS. ALL UNIFORM COMMERCIAL CODE WARRANTIES ARE EXPRESSLY DISCLAIMED BY VERSUS. VERSUS DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE PRIZING PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO PROVIDER’S DATA, COMPUTERS OR NETWORKS OR THAT ERRORS WITH THE PRIZING PLATFORM WILL BE FIXED BY VERSUS. VERSUS FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SERVICES OR THE E-MAIL TECHNICAL SUPPORT OR CONTRACTED MAINTENANCE AND SUPPORT AND THE PARTIES AGREE THAT VERSUS SHALL NOT BE HELD LIABLE OR RESPONSIBLE IN ANY WAY FOR VERSUS’ ACTIONS OR OMISSIONS IN PROVIDING SERVICES OR SUPPORT SERVICES. APPLICATIONS DEVELOPED WITH THE PRIZING PLATFORM MAY NOT BE FAULT TOLERANT. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THESE TERMS. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT FULLY APPLY TO PROVIDER TO THE EXTENT REQUIRED TO COMPLY WITH APPLICABLE LAW.
12. Limitations of Liability: YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE PRIZING PLATFORM, AND TO ALLOW YOU TO PROVIDE THE PRIZES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL VERSUS, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH THE PRIZING PLATFORM, SERVICES OR THESE TERMS, INCLUDING, FOR EXAMPLE AND CLARITY ONLY, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE PRIZING PLATFORM OR CONTENT. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT VERSUS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION BY US OF THESE TERMS IS TO DISCONTINUE USING THE PRIZING PLATFORM. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION OF THESE TERMS WILL NOT EXCEED TEN DOLLARS (U.S. $10.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
13. Indemnification: Provider agrees to indemnify, defend and hold harmless Versus, our officers, directors, members, co-branders and other Providers, employees, consultants and agents, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) any Prizes or Provider Content that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (ii) Provider’s violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with the Prizes, your use of the Prizing Platform or your activities in connection with the Prizing Platform; (iii) Provider’s breach or alleged breach of these Terms; or (iv) product liability claims arising out of the Prizes. Provider will cooperate as fully required by Versus in the defense of any claim subject to the indemnification obligations set forth herein. Notwithstanding the foregoing, Versus retains the exclusive right to settle, compromise, and pay any and all claims. Versus reserves the right to assume the exclusive defense and control of any claims. Provider will not settle any claims without, in each instance, the prior written consent of an officer of Versus.
14. Electronic Communications: We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section 14 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms by accessing the Versus web site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Prizing Platform. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
15. General Terms:
15.1 Assignment. Provider may not assign these Terms and/or any of its rights or delegate any of its obligations without the prior written consent of Versus (which may be granted or withheld in its sole discretion), and any such attempted assignment shall be void. Versus may freely assign or delegate its rights and obligations, in whole or in part. In the case of any permitted assignment or transfer of or under these Terms, these Terms will be binding upon, and inure to the benefit of, the successors and assignees of the parties of these Terms.
15.2 Disputes; Arbitration; Governing Law; Jury and Class Action Waivers; and Limitation of Time to Bring Claims. These Terms shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws that could result in application of other law, regardless of Provider’s location. Both parties acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the license of the Prizing Platform hereunder. Provider acknowledges that Versus’ rights and Provider’s obligations to Versus are of a unique and irreplaceable nature, the loss of which shall irreparably harm Versus and which cannot be replaced by monetary damages alone so that Versus shall be entitled to injunctive or other equitable relief (without the obligation of posting any bond or surety) in the event of any breach or anticipatory breach by Provider. Provider irrevocably waives all rights to seek injunctive or other equitable relief and agree to limit Provider’s claims to claims for money damages (if any). Provider agrees that any suit, action or proceeding arising out of or relating to these Terms or any of the transactions contemplated herein or related to the Prizing Platform or services herein (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the commercial dispute rules and regulations of the American Arbitration Association (“AAA”); provided, however, that notwithstanding the parties’ decision to resolve any and all disputes arising under these Terms through arbitration, Versus may bring an action in any court of applicable jurisdiction to protect its intellectual property rights or to seek to obtain injunctive relief or other equitable relief from a court to enforce the provisions these Terms or to enforce the decision of the arbitrator. Any arbitration shall be held in Los Angeles, California and to the extent an action at law is permitted hereunder, Provider consents to the jurisdiction and venue of the courts located in Los Angeles, California. The parties agree that questions of arbitrability shall be decided by the arbitrator. The arbitrator shall apply the substantive laws of the State of California, shall issue a written decision, and shall have the power to award any legal remedies consistent with these Terms except for punitive, exemplary or special damages. The parties will split the arbitrator’s fee. Disputes will be resolved only on an individual basis and will not be consolidated with any other claims, suits or other proceedings that involve any claim or controversy of any other party. If, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to this Section holds that this restriction is unconscionable or unenforceable, then our agreement in this Section to arbitrate will not apply and the dispute must be brought exclusively in court pursuant to this Section; provided, however, that Provider expressly waives the right to a jury trial with respect to any such dispute. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to these Terms (or any applicable Additional Terms) more than two (2) years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. The prevailing party in any action to enforce or interpret these Terms shall be entitled to an award of its costs and expenses (including, without limitation, reasonable, outside attorneys fees).
15.3 Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either party pursuant to the terms of these Terms shall be in writing and shall be deemed given: (i) when delivered personally; (ii) on the next business day after timely delivery to an overnight courier; (iii) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid); and (iv) upon confirmation of receipt by facsimile transmission. Any notice shall be addressed as follows: (a) if to Versus: Versus LLC 6701 Center Drive West, Suite 480, Los Angeles, CA 90045 (Attention: Legal); and (b) if to Provider, at the address provided by Provider to Versus.
15.4 Entire Agreement; Severability; and Waiver. These Terms, and any applicable Additional Terms, represent the entire agreement between the parties, and supersedes all prior agreements and understandings, with respect to the matters covered by these Terms. Provider agrees that Provider has not entered into these Terms based on any representations other than those contained in these Terms or any applicable Additional Terms. No modification of or amendment to these Terms, nor any waiver of any rights under these Terms, shall be effective unless in writing and signed by both parties. If any of the provisions of these Terms, or any applicable Additional Terms, are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions shall remain in full force and effect. The waiver of a breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. The headings are for convenience and will not be used to construe these Terms. In the event these Terms conflict with any terms and conditions affixed to or included in any invoice or purchase order, provided within an electronic fulfillment system or otherwise specified by Provider, Versus’s acceptance of Provider’s order and delivery of the Prizing Platform is solely on the express understanding and condition that these Terms (and any applicable Additional Terms) contains the only terms and conditions that will apply to such order and Versus hereby objects to and rejects any conflicting or additional terms and conditions, excepting only for Additional Terms that have been signed by an officer of Versus. No provision of these Terms, or any Additional Terms, shall be construed against a party because it drafted that provision. No partnership, joint venture or employment relationship is created between Provider and Versus by these Terms.
Last modified: September 11, 2019
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