Digital Chess Learning Platform Content Licence Terms

Background

(A) Chessable operates a digital chess learning platform (defined below as the Service).

(B) The Publisher is the proprietor of the Intellectual Property Rights (defined below) in one or more chess books and/or other chess educational materials and Chessable wishes to use them for the purposes of the Service.

(C) The parties have agreed that the Publisher shall provide the Content (defined below) to Chessable and allow Chessable to use the Content on the Service subject to the terms and conditions set out in this agreement.

About our Terms

1. Interpretation
1. The definitions and rules of interpretation in this clause apply in this agreement.

Activation: an instance of an individual unique End User first being granted access to a particular Title in exchange for a payment on the Service otherwise than on a trial basis.

App Store Fees: sums charged to us or the relevant Chess.com Group member by the operator of any app store, marketplace or other digital property by means of which Content is distributed or made available to End Users.

Publisher Materials: your name, image, likeness, and any material you provide to us depicting your likeness or containing biographical details.

Bundle: a package offered to End Users of the Chessable Platform of two or more “MoveTrainer plus Video” combinations.

Bundle End User Discount: the discount offered to End Users in respect of a Bundle, compared to the combined non-Bundle price offered to End Users in respect of the two or more individual “MoveTrainer plus Video” combinations comprised in the Bundle.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Chess.com Group: Chessable Ltd, Chess.com LLC and any entity that directly or indirectly controls, is controlled by, or is under common control with them from time to time. ‘Control’ for these purposes means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

Chess.com Group Platform: a digital property operated at any time by a member of the Chess.com Group, not including the Chessable Platform.

Chessable: means CHESSABLE LTD incorporated and registered in England and Wales with company number 09894328 whose registered office is at London Mindsports Centre 21-23 Dalling Road Hammersmith London W6 0JD.

Chessable Platform: the online chess learning service known at the date of this Agreement as “Chessable”, and any substitute or replacement for the same, (including any version dedicated to any particular territory(ies)); and any digital property (including any mobile application) operated or controlled by us providing online chess learning functions.

Confidential information: has the meaning given in clause 11.1.

Content: all or any part(s) of any item submitted by the Publisher to Chessable by means of the Service.

Delivery Materials: the materials comprising all of the Content in Portable Game Notation format (or such other agreed format) to be delivered by the Publisher to Chessable.

Effective Date: the date of your acceptance of these terms.

End User: an end user of the Service, to whom Chessable makes available the Content.

End User Data: all information provided by End Users when visiting the Service.

End User Price: the price charged to an End User in respect of an Activation.

Fees: 40% of Net Revenue.

Force Majeure Event: has the meaning given in clause 10.1.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, patents, petty patents, utility models, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Month: the period which, beginning on the first day of a calendar month, and ending on the last day of that same calendar month (for example, the period 1st -31st January).

Net Revenue: the End User Price, less any App Store Fees, less applicable VAT or sales tax, less any rebates, refunds or reimbursements granted to End Users, and in cases of payment in currencies other than USD, less a maximum of 5% (typically, 2.5%) in respect of foreign exchange costs.

Publisher: means the person or entity agreeing to these terms.

Publisher’s Marks: any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans of Publisher, whether or not registered.

Service: means (i) the online chess learning service known at the date of this Agreement as “Chessable”, and any substitute or replacement for the same, made available as at the date of this agreement at www.chessable.com; and (ii) any mobile application provided by Chessable under the ‘Chessable’ brand or any substitute or replacement for it.

Summary Version: an excerpted, abridged or summary version of the MoveTrainer, made available by us to users of Chessable for promotional purposes at no charge.

Title: an individual item of Content sold by the Publisher as a single item of educational chess content (including a single book or ebook).

2. Clause headings do not affect the interpretation of this agreement.
3. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
5. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
6. A reference to writing or written includes e-mail.

Grant of licence

1. Subject to clause 2.2, during the term of this agreement, the Publisher grants to Chessable a licence to make Content available to End Users on the Service, in consideration of the payment by Chessable of the Fees.
2. The licence granted under clause 2.1 permits Chessable to:

(a) Reproduce, index, store, edit, reformat (including change typeface and layout and mode of presentation), modify, translate, create derivative works, excerpt, index for searching purposes, link to other Content and third party material (including End User notes), electronically reproduce and distribute, and publicly make available and display the Content on the Service;

(b) enable End Users to add material (such as notes and highlights) to, and interact with, the Content in any way on the Service;

(c) reproduce and distribute through any media now known, or hereafter developed, excerpts of the Content in advertisements for, and in marketing and promotional materials related to, the Service.

3. The licence in clause 2.1 shall be exclusive in respect of any medium which makes available to end users any features or functions for validation of their chess learning.
4. Chessable may conduct sales of access to Content by means of an intermediary retailer.

Parties' responsibilities

1. The Publisher shall accept the terms and conditions of this agreement and apply for publishing while delivering the Delivery Materials in the same act.
2. The Publisher shall be responsible for the accuracy and completeness of the Content.
3. Chessable shall provide the Publisher with such aggregated anonymised data in relation to End Users as the parties may agree from time to time, acting reasonably and in good faith.
4. Chessable will, in the course of its exercising its licensed rights, reformat the Content, and Publisher acknowledges that unintentional errors may occur in the process. If any such errors do occur, Chessable shall promptly on request by the Publisher correct any manifest errors, and this will be its only remedy for the errors.

Marks

1. During the term of this agreement, the Publisher grants to Chessable a non-exclusive royalty-free worldwide licence to use Publisher’s Marks and Publisher Materials, in any medium, for the purposes of (i) inclusion in (or application to) the Content available on the Service, and (ii) promoting the availability of the Content or the Chessable Platform on the Service and on Chessable’s social media accounts (for example, Twitter, Facebook and Instagram).
2. Chessable acknowledges and agrees for all purposes that all Publisher’s Marks associated with the Publisher or the Publisher’s services, products, literature, promotional materials or otherwise, whether or not registered, constitute Publisher’s exclusive property.
3. All uses of the Publisher's Marks by Chessable, including all goodwill arising, shall accrue solely to the benefit of the Publisher.
4. Chessable shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to the Publisher's Marks.
5. At no time during the term of the licence or thereafter shall Chessable attack, challenge or file any application with respect to any Publisher’s Mark.

Fees and Payment

1. Chessable shall provide Publisher with access to a web-based dashboard displaying the number of Activations and the resulting level of Fees from time to time.
2. Fees payable under this agreement and arising in any Month shall be paid within 30 days of the end of the following Month.
3. Chessable shall pay to the Publisher the Fees and set out in the Publisher's invoice within 30 days of receipt of the Publisher's invoice, except for any amount in respect of which there is a genuine dispute.
4. All Fees are exclusive of VAT. In the event that any payment from Chessable is subject to a withholding or deduction required by law, such deduction or withholding may be applied by or on behalf of Chessable.
5. For the avoidance of doubt, Chessable shall have absolute discretion as to the extent to which any payment is required (or not required) from End Users in respect of access to the Content.
6. In the event of any delay in paying any sum due under this agreement by the due date, Chessable shall pay to Publisher interest on the overdue amount at the rate of 3% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Chessable shall pay the interest together with the overdue amount.
7. Chessable shall keep proper records and books of account showing the Fees. Such records and books shall be open from 9.00 am to 5.00 pm on Business Days to inspection and audit (on prior arrangement with Chessable) by Publisher (or its authorised representative). If such inspection or audit should reveal a discrepancy in the Fees paid from those payable under this agreement, Chessable shall immediately make up the shortfall. Such right of inspection of Publisher shall remain in effect for a period of one year after the termination of this agreement.
8. Chessable shall be entitled to make available by means of the Service up to 50 copies of each item of Content for promotional purposes, without any Fees being payable to Publisher. Chessable shall not be entitled to apply any charge to the recipient of such promotional access.
9. Except as agreed between the parties, all Fees shall be paid to Publisher in USD.
10. Publisher agrees and acknowledges that the payments under this Agreement include full and proper equitable remuneration in respect of any right to which Publisher may now be or shall in future become entitled.

Warranties

1. Each party warrants to the other that it has full power and authority to enter into and perform this agreement.
2. The Publisher warrants to Chessable that the Content, the Publisher's Marks and the Delivery Materials:

(a) do not infringe any third party's Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;

(b) do not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);

(c) are not defamatory, trade libellous, unlawfully threatening or unlawfully harassing; and

(d) do not violate any laws regarding unfair competition, anti-discrimination or false advertising.

3. The Publisher warrants to Chessable that Publisher will obtain and pay for any and all necessary clearances and licenses for the Content to permit Chessable’s exercise of the rights granted under this Agreement without any further payment or other obligation by Chessable, including, without limitation, all moral rights and any royalties and other income due to any author, illustrator, creator or Intellectual Property Right owner.
4. The Publisher will indemnify and hold harmless and, upon Chessable request, defend Chessable and Chess.com Group members (and their respective directors, officers and employees) from and against any and all liabilities, damages, and expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party related to any breach of clause 6 or any claims that the use of the Content or the Publisher Materials in accordance with this Agreement infringes any third party Intellectual Property Rights.

Limitation of remedies and liability

1. Nothing in this agreement shall operate to exclude or limit either party's liability for:

(a) death or personal injury caused by its negligence; or

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(c) any deliberate repudiatory breach of this agreement; or

(d) any other liability which cannot be excluded or limited under applicable law.

2. Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
3. Subject to clause 7.1 and except for any liability under clause 8.5 (which shall be without limit), Chessable’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the amount of Fees payable under this Agreement.

Intellectual property rights

1. Chessable retains all Intellectual Property Rights in the Service and the ‘Chessable’ brand and marks. Except as expressly stated in this agreement, nothing in this agreement shall be taken to grant any rights to the Publisher in respect of such Intellectual Property Rights.
2. Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with the Publisher. Except as expressly stated in this agreement, nothing shall be construed to grant to Chessable any right, title or interest in or to the Content.
3. Any and all End User Data (such as name, address and e-mail address) that is collected through any user registration process or otherwise shall be owned by Chessable.
4. Chessable has no obligation to the Publisher, and undertakes no responsibility, to review the Content to determine whether any such Content may result in any liability to any third party.
5. The Publisher shall indemnify Chessable against all costs, claims, damages, losses and expenses arising as a result of any claim or action that the Content, the Delivery Materials or the Publisher's Marks infringe Intellectual Property Rights belonging to a third party.
6. The indemnity in clause 8.5 is subject to the following conditions:

(a) Chessable promptly notifies the Publisher in writing of the claim or action;

(b) Chessable makes no admissions or settlements without the Publisher's prior written consent;

(c) Chessable gives the Publisher all the information and assistance that the Publisher may reasonably require.

Term and Termination

1. This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 9 (Term and Termination), until either party gives to the other party 3 (three) months' written notice to terminate.
2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(d) that other party has been subject to a Force Majeure Event continuously for more than 90 days.

3. We are entitled to terminate this agreement with immediate effect if you directly or indirectly, make, publish or communicate any offenses, defamatory or disparaging remarks, comments, or statements concerning a company of the Chess.com Group, its employees or its businesses, or you conduct in a manner that would bring the company into disrepute, be inconsistent with company's image and appeal or be prejudicial to its business. In that case, you will have to cover the expenses spent and the damages suffered by Chessable.
4. On termination of this agreement, we shall remain entitled to all Intellectual Property Rights assigned to us and all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing, or is expressly stated to continue, shall continue in full force and effect.
5. On termination of this agreement, Chessable shall cease to promote the Content and shall make no further Activations in respect of the Content.
6. For the avoidance of doubt, notwithstanding the termination of this agreement for any reason, End Users in respect of whom an Activation has occurred in respect of any item of Content shall continue to be able to access that Content by means of the Service.

Force majeure

1. The definition in this clause applies in this agreement.

Force Majeure Event: any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay to perform its obligations under this agreement shall forthwith notify the other, and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

Confidentiality

1. The definition in this clause applies in this agreement.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

(a) identified at the time of disclosure as confidential; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

2. Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
3. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
4. The obligations set out in this clause 11 shall not apply to Confidential Information which the receiving party can demonstrate:

(a) is or has become publicly known other than through a breach of this clause 11; or

(b) was in possession of the receiving party prior to disclosure by the other party; or

(c) was received by the receiving party from an independent third party who has full right of disclosure; or

(d) was independently developed by the receiving party; or

(e) was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other prompt written notice of the requirement.

5. For the avoidance of doubt, the nature and amount of Fees payable hereunder shall be Confidential Information of each party.
6. The obligations of confidentiality in this clause 11 shall not be affected by the expiry or termination of this agreement.

Announcements

1. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

Assignment

1. Chessable shall be entitled to assign or transfer the benefits and obligations of this Agreement to any third party without the need of previous consent.

Entire Agreement

1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, licences, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

Third Party Rights

1. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

Variation, waiver and rights and remedies

1. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
2. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
3. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance

1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Governing law and jurisdiction

1. This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).