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itch.io Terms of Service

Updated June 8 2018: Reverted changes to Acceptable Use clause added with May 24th update that do not reflect how we review material
Updated May 24 2018: Rewritten for GDPR support, Publisher terms, & Unclaimed Earnings clause

This Terms of Service Agreement (“Agreement”) is a legal document that outlines and explains your rights and obligations as a user or publisher from Itch Corp. (“Company”). While you are encouraged to read through the Agreement carefully, a brief summary is provided above each section as a guide.

Terms of Service

1. Service

Summary This agreement concerns Itch Corp. You agree to these Terms of Service by using the service.

itch.io is a website, desktop application, and digital software and media distribution platform owned and operated by Itch Corp. (“itch.io” or “Service”). By registering an account and using the Service, you agree to be bound by the terms of this Agreement.

2. Users and Publishers

Summary If you download projects, you’re a User. If you upload projects, you’re a Publisher. Users must be 13 or older. Publishers must be at least 18 or have the legal right to enter into this agreement.

  1. Users. If you register an account to purchase, download, or play games or other content from itch.io, you agree to be bound to the terms of this Agreement as a platform user (“User”). Users affirm that they are over the age of 13, as the Service is not intended for children under 13.
  2. Publishers. If you register an account to sell, distribute, or publish games or other content on itch.io, you agree to be bound to the terms of this Agreement as a platform publisher (“Publisher”). Publishers affirm that they are either more than 18 years of age, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement.

3. Acceptable Use

Summary Be excellent to each other! If you misbehave we may terminate your account.

itch.io aims to create a safe environment for users of the site and service. This requires a community that is built on goodwill and responsible behavior by its members. The posting of content or other actions that, in the Company’s sole discretion, degrades the experience of others may result in account termination without prior notice. Prohibited actions include but are not limited to:

  • Uploading viruses or malicious code or acting in any manner to restrict or inhibit any other user from using and enjoying the Service;
  • Spamming or sending repeated messages, junk email, contests, surveys or any unsolicited messages;
  • Posting unlawful, misleading, malicious, or discriminatory content;
  • Bullying, intimidating, harassing, defaming, threatening others, or violating the legal rights (such as rights of privacy and publicity) of others;
  • Posting content that promotes or participates in racial intolerance, sexism, hate crimes, hate speech, or intolerance to any group of individuals;
  • Soliciting, harvesting or collecting information about others;
  • Violating copyright, trademark or other intellectual property or other legal rights of others by posting content without permission to distribute such content;
  • Hacking, maliciously manipulating, or misrepresenting itch.io’s interface in any way;
  • Creating a false identity for the purpose or effect of misleading others; or
  • Violating any applicable laws or regulations.

4. Publisher Content

Summary You allow us to promote your game with screenshots, cover-images, videos, and other promotional material you have provided. You affirm that you have the right to upload and sell your content, and that itch.io and its users can use and/or purchase your content without violating anybody else’s rights.

Publishers are solely responsible for the content they upload and distribute on itch.io. Publishers affirm, represent, and warrant that they own or have the rights, licenses, permissions and consents necessary to publish, duplicate, and distribute the submitted content. By submitting content to the Service for distribution, Publishers also grant a license to the Company for all patent, trademark, trade secret, copyright or other proprietary rights in and to the Content for publication on the Service, pursuant to this Agreement. The Company does not endorse copyright infringing activities or other intellectual property infringing activities and violations of may result in the removal of content if the Company is notified of such violations. Removal and termination of accounts may occur without prior notice.

Publishers retain all ownership rights to the submitted content, and by submitting content to the Service, Publishers hereby grant the following:

  • To the Company, a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Service, including without limitation for promoting, redistributing in any and all media formats. If you choose to remove your content from the Service, this license shall terminate within a commercially reasonable time after you remove your content from the Service.
  • To Users, a non-exclusive, perpetual license to access the content and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service. Users shall retain a license to this content even after the content is removed from the Service.

5. User Generated Content

Summary You agree to let us display content you have uploaded to your profile, written in a comment, left in a review, etc. If you terminate your account you can request to have your content deleted.

itch.io provides interfaces and tools for Users to generate content and make it available to other users, including ratings, reviews, profile images, banners, and others (“User Generated Content” or “UGC”. By uploading or creating such UGC, you grant to Company the worldwide, non-exclusive, perpetual, royalty free license to use, reproduce, create derivative works, display, perform and distribute for the UGC.

Summary If you believe one of the Publishers has violated your copyright, please let us know about your complaint with the required information so we can address the complaint. If you think a complaint was filed in error, you can also contact us to address your concerns.

Copyright owners or authorized agents who believe that any content on the Service infringes upon their copyrights may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (for further detail, please see 17 U.S.C. 512©(3)):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed

DMCA notices may be directed to support@itch.io. You acknowledge that failure to comply with the requirements of this section may invalidate your DMCA notice.

If you believe your removed content does not infringe, or if you have authorization from the copyright holder, the holder’s agent, or pursuant to law, you may send a counter-notice containing the following information:

  • Your physical or electronic signature;
  • Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received, Company may send a copy to the original complaining party informing them the content may be replaced or removed in 10 business days. Unless the copyright holder files an action seeking a court order against the Publisher or User, the removed content may be replaced in 10 to 14 business days or after receipt of the counter-notice, at Company’s sole discretion.

7. Acceptable Payment Forms

Summary You may need to comply with PayPal and Stripe’s acceptable use policies. You agree to pay for something when you enter your payment information. You are the authorized user of any payment information you enter.

Publishers who distribute content on the Service for a fee may be subject to the acceptable use policies of the Company’s payment providers, Stripe and PayPal. You can review the acceptable use policies for our payment providers:

When you provide payment information to the Company or one of its payment providers, you represent that you are the authorized user of the card, PIN, key or account associated with that payment, and you authorize the Company to charge your credit card or process your payment with the chosen payment provider.

8. Transactions and Fees

Summary Publishers can set their own prices for their games (or even make them free). If you do sell your game, itch.io will be entitled to a share (that you set) and may be required to withhold an amount of the sales for tax, VAT and other charges.

Publishers may set the prices, at their own discretion, for their content and products to be sold through the Service (each sale, a “Transaction”). The Company shall be entitled to a share of the revenue Publishers receive from Transactions which shall be calculated on the gross revenue from the Transactions, not including any Transactions for which Publisher or Company provides a refund in accordance with the transaction configuration on Publisher’s account (the “Revenue Share”). Publishers may also configure transactions to provide for a portion of revenue to be directed towards a selected charity under the Publisher’s transaction configuration. For Transactions, Company will collect the purchase price and any applicable fees and taxes through its payment providers, and will pay to Publisher the proceeds net of the applicable Revenue Share, payment provider fees, and applicable taxes, VAT, duties, charges or levies. The Company may withhold any taxes, duties, charges or levies on payments by Company to Publisher pursuant to this Agreement, as may be required by applicable law, rule or regulation, and submit such withheld taxes, duties, charges or levies to the appropriate tax authority. Use of IP proxies or other methods to disguise your place of residence, whether to circumvent geographic restrictions on content, to purchase at a price not applicable to your geography, or for any other purpose, is a violation of this Agreement.

9. Refunds

Summary You may be eligible for a refund if the product does not work or does not represent what was advertised. Please contact support for help.

Users may request, and Company may process, refund requests if the purchased content cannot run, some other issue prevents access to the content, or the product does not accurately represent what was advertised. For technical issues, Company will direct users to the Publisher to first try to resolve such issues. To request a refund, please contact support with your purchase information. For content selling third party external keys (e.g. Steam keys), Company may require the Publisher to confirm cancellation of the key before a refund can be processed due to the Company’s inability to disable access. Some Publishers utilizing older payment methods are responsible for handling refunds themselves. If you are uncertain about refund eligibility, please contact support.

10. Unclaimed Earnings In Publisher Accounts

Summary If you don’t withdraw earnings from your account older than a year, we may charge a maintenance fee proportional to any unclaimed money older than a year left in your account. Itch.io is not a bank, so you need to claim your earnings in a timely manner. If you need Itch.io to withhold unclaimed payments longer than 12 months contact support.

Publisher accounts receiving Payouts from the Company are subject to a maintenance fee for unclaimed transactions. Payouts from the Company are issued when the Company is the Merchant of Record.

Accrued revenue from transactions initiated over twelve (12) months ago that has not been claimed for withdrawal may be subject to a maintenance fee. Company reserves the right to debit your Publisher account balance per month:

  • Ten percent (10%) of the original revenue earned per purchase older than twelve (12) months

until your balance reaches zero or you initiate a withdrawal for the remainder of the balance. Publisher accounts may request to delay this fee by contacting support and expressing their intent to claim at a determined time in the future.

In simple English, this means that after 1 year, if you haven’t initiated a payout for the earnings of a purchase, 10% of it will be debited from your account per month. After 10 months you will no longer be able to claim any of that purchase.

The maintenance charge will not cause your account balance to become negative and will not cause you to owe money to the Company.

Publisher accounts with purchases initiated before the publish date of this clause (May 24, 2018), have a six month grace period (until November 24, 2018) where the maintenance fee will not be applied.

11. Warranty Disclaimer

YOU AGREE THAT USE OF THE SERVICE SHALL BE AT YOUR OWN RISK. THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND THE USE THEREOF TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, THE SITE’S CONTENT, OR THE CONTENT OF ANY PUBLISHER LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, © ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVICES, SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF ACCESS TO OUR SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

12. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY OR ITS AFFILIATES SHALL BE LIABLE IN ANY WAY FOR YOUR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE, YOUR ACCOUNT, OR YOUR PURCHASED/SUBMITTED CONTENT, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ITCH.IO, THE SERVICES, OR THE CONTENT, EVEN IN THE EVENT OF THE COMPANY’S OR ITS AFFILIATES’ FAULT, TORT (EXCLUDING NEGLIGENCE), STRICT LIABILITY, OR BREACH OF COMPANY’S WARRANTY AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EACH OF THE COMPANY AND ITS AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

13. Term and Termination.

Summary Users can terminate their account at any time, but are not entitled to a refund because of such termination. Publishers can terminate at any time as well, and itch.io will comply with removing submitted content and winding up outstanding payments. Certain sections of the Terms of Service relating to how the agreement is interpreted and administered will still apply, even if you terminate your account.

  • Term. The term of this Agreement commences on the date you first register an account and will continue in effect unless otherwise terminated in accordance with this Agreement.
  • Termination by Users. Users may terminate their account at any time. You may cease to use your account, or if you so choose, may request that the Company terminate your access to your account. User accounts may not be transferred, sold, or assigned to a third party, and such actions may result in account termination. User account termination does not entitle the user to a refund.
  • Termination by Publishers. Publishers may terminate their account at any time. Publishers may request the removal of content and final payment of outstanding Transaction balances, and the Company will comply within a commercially reasonable time. The Company may retain a percentage of the outstanding Transaction balance at Company’s sole discretion in case of refunds, fees, or other payment issues.
  • Survival. Sections 4, 5, 8, 9, 11, 12, 14, 15, 16, and 18 will survive any expiration or termination of this Agreement.

14. Governing Law/Jurisdiction

Summary This agreement is under California law, and all disputes are to be addressed in San Francisco, California.

The internal laws of the State of California shall govern this Agreement without giving effect to the choice of law rules thereof. Each party irrevocably and unconditionally submits to non-exclusive jurisdiction of the state and federal courts in the city of San Francisco, California, and the appropriate courts of appeal from such courts for any other matter concerning this Agreement. You agree that the Service shall be deemed solely based in California, is a passive website, and does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than California.

15. Class Action Waiver

Summary No dispute related to these Terms of Service may be consolidated into a class action.

YOU AND COMPANY AGREE NOT TO BRING OR PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF ARBITRATION PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. You and Company also agree not to seek to combine any action with any other action without the consent of all parties to this Agreement and all other actions.

If the agreement in this Section not to bring or participate in a class, collective or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and Company agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in a class or collective action.

16. Indemnity

Summary You agree to pay for any of itch.io’s damages and costs if your game or actions causes damage to a third party.

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Company and its Affiliates, from and against all claims, damages, obligations, losses, liabilities, costs, debt, or expenses (including but not limited to attorneys’ fees) arising from: (a) your use and access of the service; (b) your violation of any term of this Agreement; © your violation of any third party right, including without limitation any copyright, trademark, property or privacy right; (d) any claim that your submitted content caused damage to a third party.

17. Assignment

Summary You are not allowed to assign this agreement, but Itch.io can assign this agreement.

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.

18. Miscellaneous

These Terms of Service, together with the Privacy Policy and any other legal notices published by Company on the Service, shall constitute the entire agreement between you and Company concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Company reserves the right to modify and amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. Headings and the simplified description of sections are provided for convenience and shall not affect the interpretation of this Agreement. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.