1. DEFINITIONS:
1.1 Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.2 Charges: the charges payable by the Client for the subscription to use the Game and the supply of the Services in accordance with clause 8.
1.3 Client: the person or firm who purchases Services from Peek & Poke.
1.4 Client Default: has the meaning set out in clause 7.2.
1.5 Client Materials: means any logo, image, phrase, slogan, audio, video, trademark, or other similar text or image which is owned, licenced or otherwise used or exploited by the Client and incorporated in the Game as part of the Services.
1.6 Commencement Date: has the meaning given in clause 2.2.
1.7 Conditions: means these terms and conditions.
1.8 Contract: the contract between Peek & Poke and the Client for the supply of Services in accordance with these Conditions.
1.9 Custom Assets: means any artwork, designs, content or any other Intellectual Property created by Peek & Poke for use by the Client as part of the services for the duration of the Subscription Term.
1.10 Data Controller: has the meaning set out in the Data Protection Legislation.
1.11 Data Processor: has the meaning set out in the Data Protection Legislation.
1.12 Data Protection Legislation: means all legislation and regulations relating to the protection of personal data including but not limited to the GDPR, UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and/or any amendments thereto and re-enactments thereof.
1.13 Data Subject: means an individual who is the subject of Personal Data.
1.14 Game: means the online gaming application selected by the Client in the Order to be made available by Peek & Poke to the Client as part of the Services, comprising the Game Engine and the Client Materials.
1.15 Game Engine: means the software programs developed and produced by Peek & Poke relating to the core operation, behaviour and codebase (programming and source code) of the Game.
1.16 Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, image rights or any such other comparable rights that exist in the world including the right to use a person’s name, nickname, slogan and signature (now existing and developed from time to time), image, likeness, logos, biographical information, voice and any other representations of a person, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.17 Launch Date: the date when the Client launches the Game.
1.18 Losses: means any and all debts, liabilities, claims, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).
1.19 Order: means the Client’s order to subscribe for usage of the Game and the provision of the Services as set out in the Client’s web basket purchase confirmation through the Website or by way of telephone order or email.
1.20 Personal Data: has the meaning set out in the Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which Peek & Poke is the Data Processor and providing Services under the Contract.
1.21 Peek & Poke: a trading name of Coopermatic Limited, a company registered in England and Wales with company number 08962503.
1.22 Processing and process: have the meaning set out in section 3 of the GDPR.
1.23 Services: the subscription to use the Game and the services provided by Peek & Poke to the Client in connection with the subscription to use the Game including but not limited to incorporating the Client Materials or Custom Assets into the Game, in each case as set out in the Order.
1.24 Subscription Term: the period beginning on the Launch Date and ending on the expiry of the period set out in the Order as the duration which the Game is to be made available for use by the Client.
1.25 Third Party Intellectual Property Rights: means any Intellectual Property Rights that are not owned by either party, but are referenced, used or otherwise associated with the Game.
1.26 UK GDPR: means the retained EU law version of the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
1.27 Website: https://peekandpoke.com/ or any other such website used by Peek & Poke through which an Order is placed and submitted by the Client to Peek & Poke.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client either by way of telephone order, email or through the Website to subscribe to use the Game and purchase the Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted by Peek & Poke issuing written acceptance of the Order to the Client by way of email confirmation at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Peek & Poke on its website, and any descriptions or illustrations contained in the Peek & Poke website, are issued or published for the sole purpose of providing the Service to the Client.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. THE SUBSCRIPTION
Subject to the Customer paying the Charges in full and complying with all other terms and conditions of this Contract, Peek & Poke hereby grants to the Client a non-exclusive, non-transferable right, to use the Game during the Subscription Term.
4. SUPPLY OF SERVICES
4.1 Peek & Poke shall supply the Services to the Client on and subject to the terms of this Contract and in accordance with the Order in all material respects.
4.2 The supply of the Services to the Client shall commence on the Commencement Date.
4.3 Peek & Poke shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.4 Peek & Poke reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Peek & Poke shall notify the Client in any such event.
4.5 Peek & Poke warrants to the Client that the Services will be provided using reasonable care and skill.
5. INTELLECTUAL PROPERTY RIGHTS AND LICENCING
5.1 The Intellectual Property Rights in the Services, Game and Game Engine, and any Intellectual Property Rights that are created by or on behalf of Peek & Poke for use in the Game or in the provision of the Services (other than any Client Materials or Third Party Intellectual Property) (referred to in these terms as the ‘Licenced Property’) are, and shall remain, the property of Peek & Poke, and Peek & Poke reserves the right to grant a licence to use any or all of the Licenced Property to any other party or parties.
5.2 The Client grants to Peek & Poke a worldwide, non-exclusive, royalty free licence for a period of 6 months to use the Client Materials for the purposes of providing the Services.
5.3 Where any third party works are incorporated in the Game (for example audio assets, stock photography, code libraries or music), Peek & Poke warrants and represents that:
(a) it has obtained the appropriate licences for the Client to use and distribute such third party works as part of the Game; and
(b) that the Game will not infringe any third party Intellectual Property Rights
6. PEEK & POKE’S OBLIGATIONS
Peek & Poke shall ensure the configuration of the Game is accurate and complete pursuant to the Client’s Order.
7. CLIENT’S OBLIGATIONS
7.1 The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Peek & Poke in all matters relating to the Services;
(c) provide Peek & Poke with such information and materials, including any Client Materials, as Peek & Poke require in order to supply the Services, and ensure that such information is complete and accurate in all material respects
7.2 The Client warrants that:
(a) the publication, reproduction or posting of the Client Materials will not breach any contract or infringe or violate any copyright, trademark, or other personal or property right, nor will it give rise to any claim;
(b) it has obtained and maintained all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(c) it has obtained the consent of any living person whose name or image (in whole or in part) is contained in the Game; and
(d) any and all Client Materials submitted whole or in part by electronic means to Peek & Poke will be free from any virus, malware, bit torrent, and any other harmful or damaging code or software and will not cause harm to any of Peek & Poke’s computer systems or electronic equipment.
7.3 If Peek & Poke’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, Peek & Poke shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Peek & Poke ‘s performance of any of its obligations;
(b) Peek & Poke shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Peek & Poke’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
(c) the Client shall reimburse Peek & Poke on written demand for any costs or losses sustained or incurred by Peek & Poke arising directly or indirectly from the Client Default.
8. CHARGES AND PAYMENT
8.1 The Charges for the Services shall be as set out in the Order.
8.2 The Charges are due and payable immediately after an Order has been submitted to Peek & Poke and until the Charges have been paid in full, the Services will not commence.
8.3 If the Charges have not already been paid as a consequence of submitting the Order through the Website, Peek & Poke shall invoice the Client the cost payable and due for the Services immediately after an Order has been accepted by Peek & Poke. All invoices issued to the Client by Peek & Poke are immediately due and payable at the time of receipt of invoice.
8.4 All monies due and payable to Peek & Poke by the Client shall be paid to a bank account nominated in writing by Peek & Poke.
8.5 Time for payment of each invoice shall be of the essence of the Contract.
8.6 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Peek & Poke may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Peek & Poke to the Client.
9. INDEMNITY
The Client agrees to indemnify and keep indemnified, and hold harmless Peek & Poke and its directors, officers and employees against any and all Losses suffered or incurred by Peek & Poke arising out of or in connection with any claim from any person arising out of or in connection with the Client’s breach or failure to perform any of these Conditions.
10. LIMITATION OF LIABILITY
10.1 Nothing in the Contract shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, each party shall not be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1, each party’s total liability to the other, whether in contract (including warranty or indemnity), tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract. To the extent permissible at law, all other conditions, warranties or other terms which might be implied or incorporated into this Contract, whether by statue, common law or otherwise, are excluded.
10.4 In respect of the Game, Peek & Poke will not guarantee continuous, uninterrupted access by users accessing the Game from all platforms, mobile devices, computer operating systems, hardware and software, and shall not be liable for any Losses suffered by the Client where the Game is not fully operational or showing all content as a result of the same.
10.5 This clause 10 shall survive termination of the Contract.
11. DATA PROTECTION AND DATA PROCESSING
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.2 The Client and Peek & Poke acknowledge that for the purposes of the UK GDPR, the Client is the Data Controller and Peek & Poke is the Data Processor in respect of any Personal Data.
11.3 Without prejudice to the generality of clause 11.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Peek & Poke and/or lawful collection of the Personal Data by Peek & Poke on behalf of the Client for the duration and purposes of this Contract.
11.4 Peek & Poke shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.
11.5 Peek & Poke shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
11.6 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
11.7 Peek & Poke warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected; and
(b) take reasonable steps to ensure compliance with those measures.
11.8 The Client acknowledges that Peek & Poke is reliant on the Client for direction as to the extent to which Peek & Poke is entitled to use and process the Personal Data. Consequently, Peek & Poke will not be liable for any claim brought by a Data Subject arising from any action or omission by Peek & Poke, to the extent that such action or omission resulted directly from the Client’s instructions.
11.9 The Client consents to Peek & Poke appointing Google Cloud EMEA Limited as a third-party processor of Personal Data under this Contract. Peek & Poke confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business which the third-party processor confirmed reflect and will continue to reflect the requirements of the Data Protection Legislation.
11.10 Notwithstanding clause 11.9, Peek & Poke may authorise such other third-party processors to process the Personal Data provided that the contract between the third-party processor and Peek & Poke:
(a) is on terms which are substantially the same as those set out in the Contract or on that third party’s standard terms of business which the third-party processor confirmed reflect and will continue to reflect the requirements of the Data Protection Legislation; and
(b) terminates automatically or is able to be terminated immediately on giving notice, on termination of the Contract for any reason.
12. DURATION
This Contract shall, commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 13, until the expiry of the Subscription Term.
13. TERMINATION
13.1 Without affecting any other right or remedy available to it, the Client may terminate the Contract with immediate effect for whatever reason by giving written notice to Peek & Poke at any time before the Launch Date.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3 Without affecting any other right or remedy available to it, Peek & Poke may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
14. CONSEQUENCES OF TERMINATION
14.1 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. CONFIDENTIALITY
No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
16. STATUS
Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure to result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Contract by giving not less than 30 days’ written notice to the affected party.
18. ENTIRE AGREEMENT
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19. CONFLICT
If there is any conflict or ambiguity between the terms of these Conditions and the Order, the terms of these Conditions shall prevail.
20. THIRD PARTY RIGHTS
No one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms.
21. JURISDICTION AND GOVERNING LAW
21.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
21.2 Each party irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
