English - Appland
Contents
1. copy reproduce and or install and or have used copied reproduced and or installed namely by third parties operating Retail Stores or their service providers the Content on an unlimited number of devices including Devices but not limited to them and including servers and server like devices such as distribution terminals accessible by End Users and or Retail Store staff and 2 2 market and distribute and make the Content publicly available by installing and or reproducing or allowing third parties to install and or reproduce or making available for installation and or reproduction and or marketing or otherwise the Content publicly perform or display the Content 3 Appland may sublicense any right and license granted to it under Section 2 of this Appendix without Your additional consent to i any entity within the Appland Group or ii any third party that owns and or operates a Retail Store Appland shall only sublicense its rights in Your Content for the purposes of and as contemplated under the Services to You hereunder 4 Appland shall have no obligation to provide to You any reports or to render any accounts with regard to Services or the distribution of Your Content via Retail Stores Appland will however use its reasonable efforts to provide You with statistical data and or other information with regard to Services via the Appland Store developer console interface Such information is provided without obligation and as is a2. rights 2 2 You hereby grant Appland a non exclusive worldwide and royalty free right and license to use Your Content for the purposes of this Agreement including copying distribution by electronic means public display public performance communication of the Content to the public and any other means necessary for the performance of Appland s obligations under this Agreement 2 3 You hereby grant Appland a non exclusive worldwide and royalty free right and license to use Your trademarks trade names service marks logos and or other identifying or distinctive marks as well as images identifying Your Content icons etc by placing copying reproducing publicly displaying and making them available online and on End Users Devices in order to perform its obligations under this Agreement including the distribution of Your Content through the Store as well as by placing copying reproducing and publicly displaying and making them available in Appland s own advertising and promotional materials for the Store whether online or offline 2 4 Appland may sublicense any of the rights granted to it under Sections 2 2 and or 2 3 to any third party that owns and or operates a Third Party Store for the purposes of this Agreement provided that 2 4 1 Appland shall ensure that End User Fees if set by You are still applicable in the respective Third Party Store provided however that Appland may exercise its rights set forth by Sections
3. 2 if You are agreeing to be bound by this Agreement on behalf of Your employer or other entity You represent You have full legal authority to enter into this Agreement on behalf of such employer or entity 10 4 3 the information You provide to Appland under this Agreement is true and accurate 10 4 4 Your Content as submitted and as subsequently updated or upgraded complies with Sections 3 5 and 3 6 of this Agreement and 10 4 5 You have all intellectual property rights and permissions in relation to Your Content allowing You to distribute the Content including the third party materials in Your Content if any under the terms and conditions of this Agreement and to license the rights in and to such 10 5 Except for the express representations and warranties set forth in this Agreement neither You nor Appland make any other representations or warranties Each party expressly disclaims all other representations or warranties express or implied 11 INDEMNIFICATION 11 1 You hereby agree to indemnify defend and hold harmless Appland any entity within the Appland Group the Processor their respective affiliates contractors partners successors assigns as well as their respective directors officers and employees from and against all claims demands actions proceedings liabilities damages losses costs and expenses including reasonable legal fees arising out of or in relation to or accruing from 11 1 1 any actual or allege
4. 4 2 and or 4 3 specifically for such Third Party Store and that such End User Fees are transmitted to You as per Section 8 2 4 2 Appland shall ensure that any Content removed from the Store whether by You or by Appland is also removed from any Third Party Store within a reasonable amount of time and in any case within no more that ninety 90 days 2 4 3 Appland shall and You hereby authorize and instruct Appland to use its commercially reasonable efforts to provide the sub licensee with the End User License Agreement and the information related to the Content provided to Appland by You 2 5 Nothing in this Agreement grants You a right to use any of Appland s or its partners trademarks trade names service marks logos or other identifying or distinctive marks 2 6 End User License Agreement You shall enclose an End User License Agreement in Your Content which covers the terms and conditions of the license granted by You to the End User and governs the use of Your Content by the End User Where there is no such End User License Agreement enclosed in Your Content You hereby agree that each End User who downloaded your Content via the Store is automatically granted by You a non exclusive non transferable worldwide right and license to use Your Content on the End User s Device such license being perpetual unless Your Content is distributed to End Users with limited availability on a trial basis in which case such license is li
5. services or activities of Appland under the Appendix Any and all references to this Agreement contained herein shall be considered references to the Agreement and the Appendix unless expressly provided otherwise DEFINITIONS Agent Fee means the fee owed by You to Appland as remuneration for Appland providing the services under this Agreement Chargebacks means any amounts charged back or otherwise returned to the End User e g due to End User refunds or contested credit card transactions and any fees or penalties associated therewith Content means an item which may be a software application game ringtone music image artwork user manual electronic book or any other digital material which is distributed by You through the Appland Store and as the case may be any Partner Store and or Third Party Store under the terms of this Agreement Content Owner means You as the person or company holding the rights in and to the Content Device means any End User s device that can access the Appland Store and or a Partner Store and or on which Your Content may be installed and or performed End User means any individual user who accesses Content for customary personal use purposes and not for redistribution End User Information means usernames passwords or any other log in information or any other personally identifiable information about End Users End User Fee means collectively and
6. to the appropriate authorities and delete Your Appland Store account as well as Appland Store accounts of those involved as determined at Appland s sole discretion with the distribution of such Content 12 5 Appland shall not be liable for any delay or failure to fulfill its obligations hereunder that results from acts of God war civil disturbance court order legislative or regulatory action catastrophic weather condition failure or fluctuation in electrical power or other utility services or other cause beyond its control 13 TERM AND TERMINATION 13 1 This Agreement commences on the date of Your online or email acceptance as described below and shall remain in effect until terminated as provided in this Section 13 13 2 You may terminate this Agreement in whole or in part by removing respectively all or part of Your Content from the Store as described in Section 9 1 of this Agreement Appland may terminate this Agreement in whole or in part by removing respectively all or part of Your Content from the Store as described in Section 9 2 of this Agreement 13 3 Either party may terminate this Agreement for any reason or without reason and at any time by giving the other party a ninety 90 days prior written notice Either party may terminate this Agreement if the other party is in a material breach of any term or condition of this Agreement and such breach is not remedied for a period of thirty 30 calendar days or a longer
7. A APPLAND STORE ACCOUNT INCLUDING BUT NOT LIMITED TO SUBMITTING YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON ACCEPT OR OTHER BUTTONS PROMPTING YOU TO ACCEPT THIS AGREEMENT ON THE RELEVANT APPLAND STORE ACCOUNT REGISTRATION PAGE BEGINNING TO USE THE STORE INCLUDING BUT NOT LIMITED TO SUBMITTING ANY OF YOUR CONTENT TO THE STORE AND OR REPLYING I AGREE TO THE EMAIL WITH THIS AGREEMENT YOU 1 REPRESENT AND WARRANT THAT THE INFORMATION PROVIDED BY YOU IS TRUE AND ACCURATE YOU HAVE THE FULL LEGAL CAPACITY NECESSARY TO ENTER INTO THIS AGREEMENT UNDER ANY LAW THAT MAY BE APPLICABLE TO YOU AND THAT YOU ARE IN ANY CASE AT LEAST EIGHTEEN 18 YEARS OLD YOU ARE EITHER THE CONTENT OWNER OR AN AUTHORIZED OR LEGAL REPRESENTATIVE OF THE CONTENT OWNER AND HAVE THE POWER AND AUTHORITY TO BIND THE CONTENT OWNER TO THIS AGREEMENT AND ENTER INTO THIS AGREEMENT ON ITS BEHALF AND Il ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT INCLUDING THE APPENDIX UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND OR HAVE CAUSED THE CONTENT OWNER TO DO SO Date of publication July 15 2014
8. APPLAND DISTRIBUTION AGREEMENT This Agency Agreement Agreement is a legally binding agreement between YOU being any person or company distributing Content under the terms of this Agreement You or Content Owner and Appland AB Appland a company incorporated under the laws of Sweden with address at Viktoriagatan 19 41125 Gothenburg Sweden This Agreement sets forth the terms and conditions applicable to the agency relationship between You and Appland regarding Your distribution of Content through the Appland Store and or Partner Stores by way of an agency Appland being the agent and acting as Your proxy The Terms and Conditions for Offline Retail Store Distribution Appendix Appendix constitutes an integral part of this Agreement and sets forth the terms and conditions applicable to additional distribution services Appland may provide to You with regard to Your Content When rendering such additional services Appland may distribute Your Content via additional channels as specified in the Appendix and or in its own name The terms of the main body of this Agreement shall fully but to the extent required be adjusted and or particularly taking into account that even though Appland may act in its own name the distribution via other channels shall be treated the same as a distribution via the Store and or that the terms agency agent principal and related terms might need to be read accordingly apply to any
9. Appland may require You to set the End User Fee as USD 0 99 or USD 1 instead The End User Fee rate must be all tax inclusive meaning it has to include any and all taxes such as VAT sales or services tax or any other similar Transactional Taxes applicable 4 3 You may denominate End User Fee rates only in the currencies permitted by Appland Appland may if it so elects or is so required by any applicable law convert the amounts to the local currency or currencies used for the Appland Store a Partner Store or a Third Party Store using the conversion rate chosen by Appland To maximize gross receipts in light of local market conditions Appland may vary the Fee for certain markets as determined by Appland in its reasonable discretion 4 4 You may distribute free trial versions of Your Content with an option to buy the license for the full version of the Content provided that You distribute the full version of the same Content through the Appland Store and as the case may be a Partner Store for an End User Fee 4 5 YOU ARE SOLELY RESPONSIBLE FOR ALL TAXES RELATED TO YOUR DISTRIBUTION OF CONTENT THROUGH THE APPLAND STORE AND OR PARTNER STORES AND OR THIRD PARTY STORES SUCH AS WITHOUT LIMITATION ANY VALUE ADDED TAX SALES OR SERVICES TAX OR ANY OTHER SIMILAR TRANSACTIONAL TAXES INCLUDING DETERMINING THE APPLICABLE TAX RATE WHICH HAS TO BE COMMUNICATED TO APPLAND USING THE TOOLS PROVIDED BY APPLAND OR AT THE CONTACT DETAILS SPECIFIED
10. BY APPLAND REPORTING AND REMITTING TAXES TO THE APPROPRIATE TAXING AUTHORITIES ETC APPLAND TAKES NO RESPONSIBILITY AS TO DETERMINING CALCULATING REPORTING OR REMITTING ANY SUCH TAXES ASSOCIATED WITH YOUR CONTENT 4 6 You shall indicate the total rate of all applicable Transactional Taxes using the tools provided by Appland It is Your sole responsibility to determine the correct total rate of all taxes applicable to the distribution of Your Content through Appland Store and or Partner Stores and to indicate the total tax rate to Appland using the tools provided by Appland Appland will neither determine tax rates for You nor check the tax rates indicated by You Appland will base the calculation of the Transactional Taxes entirely on the tax rates indicated by You and the correctness of these figures is Your responsibility 4 7 Appland will pass on to You the entire amount of Transactional Taxes collected in relation to Your Content based upon the total applicable tax rate indicated by You to Appland 5 MAINTENANCE AND SUPPORT 5 1 Any maintenance and support service in relation to the Content is Your responsibility You shall be solely responsible for the Content quality and performance of the Content correctness and sufficiency of the information You provide to End Users for any express or implied product warranty support maintenance or other obligations related to the Content for communicating with End Users regarding the Content
11. UR CONTENT FROM THE STORE AS PROVIDED IN SECTION 9 1 OF THIS AGREEMENT IN WHICH CASE THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED WITHIN FIVE 5 BUSINESS DAYS FROM THE DAY OF RECEIVING NOTICE OF CHANGES TO THIS AGREEMENT YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THE REVISED AGREEMENT AND THE REVISED AGREEMENT WILL TAKE EFFECT AND BE BINDING ON BOTH PARTIES AT THE END OF SUCH FIVE 5 BUSINESS DAY PERIOD UNLESS OTHERWISE EXPRESSLY PROVIDED IN APPLAND S NOTIFICATION OF THE CHANGES TO YOU 14 6 This Agreement and any question about its subsistence effect or termination is governed by and to be interpreted in accordance with the laws of Sweden except that body of laws regarding conflict of laws In the event of a dispute arising out of or relating to this Agreement including non contractual disputes or claims the parties shall first seek settlement of that dispute by negotiation Any dispute arising out of or in relation to this Agreement shall be finally settled by and the parties hereby agree to and waive any objections against including but not limited to objections under forum non conveniens the exclusive jurisdiction and authority of the competent courts of Sweden Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief or any other provisional remedy from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect either party s
12. and for addressing any End User complaints and claims about the Content 5 2 You agree to provide End Users with support by email or phone state Your name address support email address or phone number at an appropriate place within the Content and respond to End User related issues pertaining to the Content within ten 10 business days 5 3 Where You become aware of any serious default in Your Content You shall immediately inform Appland about such a default 5 4 Appland has no obligation to provide any maintenance and support to End Users in relation to Your Content Appland may but is not obliged to address any complaint of an End User and Appland may in addressing such complaint of an End User and at Appland s sole discretion transfer the End User Fee back to the End User which shall constitute a valid Chargeback 6 CHARGEBACKS 6 1 Billing disputes received by Appland or its Processor concerning Content licensed for End User Fees of less than ten US Dollars USD 10 may be automatically charged back in addition to any handling fees charged by Appland except where multiple disputes are initiated by an End User with abnormal dispute history Chargeback requests concerning End User Fees of ten US Dollars USD 10 or more will be handled on a case by case basis 6 2 If Chargebacks result in a negative amount of Gross Revenue for a particular month Appland shall at its discretion either i offset such negative amount again
13. d breach of Your obligations representations and or warranties under this Agreement 11 1 2 Your actions or Your Content actually or allegedly infringing the intellectual property rights of any third party 11 1 3 Your actions or Your Content actually or allegedly violating the personal information or privacy rights of any person 11 1 4 Your actions or Your Content actually or allegedly violating any applicable data protection or consumer protection or unfair competition law 11 1 5 Your actual or alleged breach of any warranty representation or other obligation including but not limited to any support and maintenance obligation to End Users or 11 1 6 taxes according to Section 4 5 of this Agreement including any claims against Appland due to joint and several liability provisions 12 LIABILITY 12 1 AS THE PRINCIPAL YOU ARE AND SHALL BE SOLELY LIABLE FOR ANY AND ALL CLAIMS DEMANDS ACTIONS PROCEEDINGS LIABILITIES DAMAGES LOSSES COSTS AND EXPENSES INVOLVING OR RELATING TO THE CONTENT INCLUDING VIOLATION OF ANY THIRD PARTY RIGHTS OR CONTRACT ANY LAW OR REGULATION BY DISTRIBUTION OF THE CONTENT UNDER THIS AGREEMENT 12 2 In case of a material breach by You of this Agreement including but not limited to any breach by You of Sections 3 5 3 6 4 5 or 7 1 of this Agreement Appland may notify You of the material breach and suspend payment of the outstanding amounts owed to You with no interest to be paid for such su
14. eement and supersede all prior agreements understandings and negotiations with respect to the subject matter hereof 14 10 A printed version of this Agreement a facsimile copy of it and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form 14 11 Sections 7 8 11 13 5 and 14 of this Agreement shall survive the expiration or termination of this Agreement KKK APPENDIX TERMS AND CONDITIONS FOR OFFLINE RETAIL STORE DISTRIBUTION 1 In addition to the terms and conditions of the main body of the Agreement if and as long as You choose not to charge any End User Fees for Your Content You also hereby authorize Appland to provide distribution services Services to You by marketing and or distributing such Content to End Users via physical non online retail stores owned and or operated by third parties in particular without limitation for selling or otherwise procuring or promoting Devices to End Users each a Retail Store 2 For the purposes of Appland providing the Services to You You hereby grant Appland additionally a non exclusive irrevocable to the extent set forth herein sub licensable to the extent set forth herein royalty free perpetual worldwide right and license to 2 1 use
15. emove Your Content if it is in violation of the terms of service of Device manufacturers mobile network operators and or other partners with whom Appland has entered agreements to place the Appland Store or as the case may be Partner Store software on Devices 9 2 4 If Your Content is removed due to violation of Section 3 6 of this Agreement You shall charge back to Appland all amounts received by You plus any Chargebacks or if You fail to do so such amounts may be withheld by Appland at its sole discretion from any future amounts due to You 10 REPRESENTATIONS AND WARRANTIES 10 1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE STORE IS AT YOUR SOLE RISK AND THAT THE STORE IS PROVIDED AS IS AND AS AVAILABLE WITHOUT WARRANTY OF ANY KIND 10 2 APPLAND SHALL NOT HAVE ANY OBLIGATION TO ALTHOUGH IT MAY MONITOR YOUR CONTENT ASSOCIATED MATERIALS AND INFORMATION OR YOUR USE OF THE STORE FOR COMPLIANCE WITH APPLICABLE LAWS REGULATIONS OR THIS AGREEMENT 10 3 APPLAND FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY FITNESS FORA PARTICULAR PURPOSE AND NON INFRINGEMENT 10 4 Your representations and warranties You hereby represent and warrant that 10 4 1 You have the full power legal right and authority to enter into this Agreement and perform the obligations thereunder 10 4
16. esult of an allegation of a certain wrongdoing that constitutes a violation of Section 3 6 of this Agreement You shall immediately notify Appland about it and if Appland instructs You so charge back to the affected End User who licensed such Content within a year before the date of removal all amounts paid by such End User for such affected Content 9 2 Content Removal by Appland 9 2 1 Appland may block or remove Your Content from the Store if Appland is notified by You or otherwise becomes aware or determines at its sole discretion that Your Content or any portion thereof or any related materials a are in violation of Sections 3 7 of this Agreement or b violates Appland s policies or policies applicable within the Appland Group as set forth by Appland or the respective entity within the Appland Group and may be amended by Appland or the respective entity within the Appland Group from time to time c has a serious default is of low quality or in the opinion of Appland creates excessive uninstallations or Chargebacks d may create liability for Appland any entity within the Appland Group the Processor and or any of their contractors or partners 9 2 2 Appland reserves the right at its sole discretion to suspend and or remove Your Content or any associated material from the Store as well as to bar You from the Store by suspending and or deactivating Your Appland Store account 9 2 3 Appland reserves the right to r
17. her with the following information the title of Your Content a full description of Your Content a short description of Your Content which may be generated by Appland if not provided instructions a thumbnail for the catalogue which may be generated by Appland if not provided images screenshots the platform details and other technical requirements the version if applicable the category the terms of distribution of Content e g whether the Content is provided with a trial period applicable End User Fees or lack thereof and keywords Content classification information e g not recommended for End Users of certain age or other criteria the status of Content active non active serial numbers if the serial number generation form is not chosen builds and their description title version platform device language file formats compatibility etc 3 5 You shall be solely responsible for ensuring and You hereby represent and warrant that the information You provide to Appland and to End Users is true accurate and valid and that Your Content is safe free of defects in design and operation and that it complies with any and all applicable laws and regulations 3 6 Restricted Content You may not upload display and distribute any Content or associated material that violates any of Appland s policies or that 3 6 1 disrupts disables damages in any way or accesses in an unauthorized manner any Device software or netwo
18. ided however that Appland may re classify re categorize or re characterize Your Content at its sole discretion 3 12 At any time and from time to time Appland may offer You additional promotional services by offering preferred placement of Your Content or otherwise promoting Your Content to End Users Any such services shall be provided under terms and conditions determined solely by Appland and may be provided for a fee If such services are provided for a fee provision of such services shall require Your express opt in consent which may be given using the tools provided by Appland 4 END USER FEES 4 1 You are free to choose to a not to charge any End User Fees for or within Your Content or b to charge End User Fees for and or within Your Content including but not limited to for providing additional services licenses functionality and or products associated with Your Content and or extension of the term of license granted to an End User by You e g beyond the initial limited trial period 4 2 If You wish to charge End User Fees You shall set such End User Fee rates at Your sole discretion using the tools provided by Appland You hereby expressly acknowledge and agree that the tools offered by Appland may limit Your choice of the exact amounts of End User Fees You wish to charge including but not limited to determining the available options of the amounts to choose from e g if You wish to charge an End User Fee of USD 1 57
19. individually a the fee charged to an End User as remuneration for the grant of a license to the Content to such End User by You all tax inclusive and or b the fee charged to an End User from within the Content for any additional services licenses functionality and or products associated therewith all tax inclusive End User License Agreement means a legally binding agreement between You and the End User which may be a click wrap click through or similar agreement which grants a non exclusive right and license to such End User to perform display and or otherwise use the Content on the Device Gross Revenue means the gross monetary revenue comprising of End User Fees actually collected by Appland on Your behalf during the reporting month including any Transactional Taxes and reduced by any Chargebacks Net Revenue means Gross Revenue less Transactional Costs Partner Store means any version of Appland Store however named and or branded which is operated by Appland and distributed by or in cooperation with a partner of Appland OEM mobile network operator etc Processor means a company authorized by Appland to provide payment processing and fee collection services Store means both Appland Store and Partner Store s or any of them Third Party Store means any content store platform software and or service other than Appland Store or any Partner Store operated by a third party which
20. is not a member of the Appland Group Transactional Costs means all costs associated with Gross Revenue including but not limited to i credit card mobile carrier billing and other transactional fees ii fees payable to Appland s distribution Partners and iii Transactional Taxes Transactional Taxes means value added tax sales or services tax or any other similar transactional taxes Appland Group means Appland AB and any other company under direct or indirect control by Appland AB Sweden Appland Store means the Appland Store service in whatever form and however branded by Appland which is owned and operated by Appland or any company within the Appland Group and which provides the marketplace for distribution of the Content by You to End Users 1 APPLAND AS YOUR AGENT 1 1 You hereby authorize and instruct Appland to act under the terms of this Agreement as Your non exclusive agent for 1 1 1 marketing and distributing Your Content to End Users through the Appland Store and as the case may be any Partner Store s and 1 1 2 collection of End User Fees if charged by You 1 1 3 providing Your Content to third parties for marketing and distribution in any Third Party Store on a sub agency sub licensing distribution services and or other basis 1 2 You also hereby authorize and instruct Appland to 1 2 1 provide You with hosting services for storage of Your Content and related material
21. mited to the trial period only Under this license You shall be solely responsible for maintenance and support services any warranty or product claim in relation to Your Content any third party intellectual property right infringement claim and for legal compliance In any case the End User License Agreement shall be made between You and End User only Appland in no case being a party to any End User License Agreement 3 USE OF THE STORE 3 1 In order to make use of the Store You must have a valid Store account Such Store account allows You to view and amend Your profile the information about Your Content and payment details to manage promotional activities to view statistics and sales information and to permit or disable reviews and End Users comments 3 2 You must provide Appland with the valid profile information including Your email Your company name VAT ID and or other tax ID addresses country of residence website order email user Support email urgent support email to be used by Appland only and any other information Appland may reasonably require e g telephone number fax number the name of Your contact person etc 3 3 In order to charge an End User Fee for Your Content You must provide Appland with valid payment information which Appland will use to transfer You the End User Fees collected by Appland for You and on Your behalf net of the Agent Fee 3 4 You must provide Your Content to Appland Store toget
22. name proprietary information trade secrets know how or any other intellectual property rights Should any arbitration litigation or other proceedings including proceedings in bankruptcy be commenced arising out of concerning or related to any provision of this Agreement or the rights and duties of any person or entity hereunder the prevailing Party solely as between You and Appland in such litigation or proceeding shall be entitled in addition to such other relief as may be granted to recover its actual attorneys fees costs disbursements and expenses incurred by reason of such proceedings 14 7 The Parties hereto have expressly agreed that this Agreement and related documents shall be written and interpreted in the English language Any notices required or provided under this Agreement shall be in English In the event of any conflict between the English version of this Agreement or any notices and a translation the English version will prevail 14 8 If any court of law having the jurisdiction to decide on this matter rules that any provision of this Agreement is invalid then that provision shall be deemed removed from this Agreement without affecting the rest of this Agreement The remaining provisions of this Agreement will continue to be valid and enforceable 14 9 This Agreement and its exhibits attachments and addenda if any set forth the entire understanding of the parties with respect to the subject matter of this Agr
23. nd Appland hereby expressly disclaims any warranty whether express implied or statutory of such information s accuracy completeness or relevance 5 This Appendix may be terminated together with the Agreement in full or in part with regard to certain Content only if the Agreement is terminated in full or in the respective part as provided in Section 13 of the Agreement Notwithstanding the foregoing You may terminate this Appendix separately from the Agreement by choosing to opt out of the Services using the tools provided to You by Appland including by sending an e mail containing Your express will to opt out of the Services to support appland se from Your e mail address registered in Your Appland Store account 6 If this Appendix is terminated whether together with the Agreement or separately Appland shall be entitled to provide Services and to use Your Content as provided in Section 2 of this Appendix for additional 30 thirty business days after the effective date of termination 7 This Appendix constitutes an integral part of the Agreement and shall be considered accepted and agreed to by You if and as long as You have accepted the Agreement Sections 2 3 5 7 9 10 11 12 13 14 of the Agreement shall be directly applicable with respective changes to Your relationship with Appland concerning Services and distribution of Your Content via Retail Stores and as otherwise contemplated in this Appendix k k k BY CREATING
24. on collected is examined in the aggregate to make improvements to the Stores Appland may at its sole discretion provide limited aggregate information to You for You to be able to improve Your Content 7 3 If Appland subcontracts third parties including but not limited to any entity within the Appland Group and or the Processor to fulfill its obligations under this Agreement cf Section 1 4 some of the data provided by You to Appland according to Sections 3 2 and 3 3 of this Agreement might need to be transferred or disclosed to such third parties for that purpose You hereby expressly consent to such transfer or disclosure of the data according to Sections 3 2 and 3 3 of this Agreement 8 AGENT FEE AND TRANSFER OF END USER FEES TO YOU 8 1 If You charge End User Fees within thirty 30 days after the end of each month Appland will issue to You a summary report of amounts payable pursuant to this Agreement and present You an invoice for the Agent Fee for such month 8 2 Agent Fee Rate Appland shall for its services under this Agreement be remunerated with an Agent Fee in the amount of thirty percent 30 of the Net Revenue The amount of such Agent Fee may be subject to revision from time to time 8 3 Payment of Agent Fee shall take place within thirty 30 days after the end of each month by Appland setting off the Net Revenue against the Agent Fee for such month 8 4 Provided that Appland has been paid by the Processor that Y
25. ou such money bearing no interest 13 5 5 You shall be responsible for continued support of Your Content licensed to End Users 13 6 You acknowledge and agree that the termination of this Agreement does not terminate the rights or licenses of any End User to continue to use Your Content if Your Content was licensed by the End User prior to the effective date of termination 14 GENERAL PROVISIONS 14 1 Either party may sublicense assign or delegate any right or duty hereunder to any of its affiliates without the consent of the other party but with a ninety 90 days prior written notice unless otherwise provided for in this Agreement 14 2 This Agreement will not be construed to create a joint venture or partnership between the parties 14 3 All notices under or relating to this Agreement may be sent by e mail or by registered mail to the address below or to any other address the parties may designate in writing and shall be deemed effective upon receipt 14 4 Appland may from time to time modify the terms of this Agreement by 14 4 1 posting the revised agreement on its website and notifying You of the change by e mail or a news article or 14 4 2 notifying You of the change by e mail and forwarding a copy of the revised Agreement to You electronically upon Your request or 14 4 3 any other means reasonably deemed suitable to inform You of the terms of the revised Agreement 14 5 UNLESS YOU REMOVE ANY AND ALL OF YO
26. ou are not in a material breach of any of Your obligations under this Agreement and subject to the minimum payment amount set forth in Section 8 5 of this Agreement within thirty 30 days after the end of each month Appland will transfer to You an amount equal to the Net Revenue less the Agent Fee plus the Transactional Taxes regarding such month 8 5 Minimum Payment Amount Appland shall have no obligation to effect payment to You in any month in which the total amount You are owed is less than one hundred US Dollars USD 100 Amounts under one hundred US Dollars USD 100 will be retained and accumulated with amounts accruing in subsequent months until thirty 30 days after the end of the month in which the total amount payable comes to exceed one hundred US Dollars USD 100 Accumulated amounts shall not accrue any interest 9 CONTENT REMOVAL 9 1 Content Removal by You 9 1 1 You may remove Your Content from future distribution through the Store at any time provided that the removal of Your Content shall not a affect the license rights of End Users who have previously licensed Your Content or b lead to removal of Your Content from Devices or from any part of the Store where previously licensed Content is stored on behalf of End Users or c change Your obligation to deliver or support Your Content or services that have been previously licensed or purchased by End Users 9 1 2 If You remove Your Content from the Store as a r
27. period if allowed to the party in breach by the other party after the party in breach has been notified of the breach by the other party 13 4 Appland may terminate this Agreement unilaterally by giving You a written notice with an immediate effect if Appland is required to terminate the Agreement by law or Your Content violates any of the restrictions under Section 3 5 3 6 4 5 or 7 1 of this Agreement 13 5 Rights and Duties Upon Termination In the event of termination of this Agreement 13 5 1 You shall remove any and all of Your Content or in the event this Agreement is terminated in part the respective part of Your Content from the Store as provided in Section 9 1 of this Agreement and if the Agreement is terminated in full cease using Your Appland Store account 13 5 2 Appland may but shall not be obligated to unless You remove Your content as provided in Section 9 1 of this Agreement remove Your Content from the Store and stop distributing Your Content after the effective date of such termination 13 5 3 within thirty 30 days after Your Content is removed from the Store Appland shall provide You with a statement of all outstanding amounts due to You under this Agreement with respect to such Content 13 5 4 Appland may set off the outstanding amounts against the damages losses cost expenses incurred by Appland as a result of any claim arising from Your material breach of this Agreement and transfer the residue to Y
28. rk or personal data of any End User Appland any Appland partner or any other third party including but not limited to content transmitting viruses worms malware spyware 3 6 2 contains or links to any illegal content any child pornography obscenity nudity sexual activity extremist hatred violent discriminatory defamatory or any other material whose distribution is forbidden or restricted under applicable laws 3 6 3 processes in an unauthorized manner private and confidential information of individuals 3 6 4 infringes or links to any site that infringes any intellectual property rights including copyright trademark patent know how or any other proprietary rights of others 3 6 5 facilitates online gambling including but not limited to online casinos sports betting and lotteries 3 6 6 mimics functionality or warnings from an End User s operating system or other applications 3 6 7 facilitates promotes endorses or otherwise enables distribution of any content outside of the Appland Store or a Partner Store e g any other content store or similar content distribution platform diverts End Users to or provides links to any other content stores or similar content distribution platforms or provides links to any other site or application that mimics the Appland Store or a Partner Store or passes itself off as the Appland Store or a Partner Store 3 6 8 allows facilitates promotes endorses or otherwise enable
29. s for the purposes of marketing and distributing Your Content to End Users 1 2 2 market demonstrate and promote Your Content 1 2 3 receive and process orders from End Users 1 2 4 issue invoices and collect End User Fees on Your behalf 1 2 5 act as Your direct proxy with regard to Your relationships with End Users and or Third Party Store owners or operators concerning Your Content 1 2 6 deliver Content to End Users on Your behalf 1 2 7 make Chargebacks 1 2 8 perform any other activities reasonably necessary to fulfill its obligations under this Agreement as determined by Appland 1 3 You hereby grant Appland all rights reasonably necessary for Appland to fulfill its obligations as agent under this Agreement 1 4 Appland may subcontract third parties including but not limited to any entity within the Appland Group and or the Processor to fulfill any part of its obligations under this Agreement including but not limited to such services as payment processing fee collection operation of the server virus scanning etc and assign or sublicense to third parties any part of its rights under this Agreement 2 INTELLECTUAL PROPERTY RIGHTS 2 1 You are and shall remain the owner of all right title and interest in and to Your Content including all intellectual property rights therein such as without limitation copyrights patents trademarks and trade secrets This Agreement does not transfer ownership of any of these
30. s making or processing payments by the End User from within such Content via any tool or method other than the ones offered and supplied by Appland 3 7 You shall submit Your Content materials and information to Appland in a format and using the delivery methods and tools as prescribed by Appland 3 8 Appland may cease displaying promoting and giving access to Your Content if it is not properly uploaded 3 9 If Your Content includes any software licensed under an Open Source Initiative Approved License it must not cause any Appland software to become subject to the terms of any such license which You hereby represent and warrant 3 10 Content ratings will be used to determine the placement of Your Content on the Store with higher rated Content generally given better placement subject to Appland s right to change placement at Appland s sole discretion End Users who download Your Content will be able to rate it If Your Content has not received any rating from End Users Appland may rate it at its sole discretion based on its quality and history e g uninstall and or Chargebacks rates 3 11 You shall be solely responsible for any classification categorization or characterization of Your Content including but not limited to as sensitive or age restricted Content as may be required under any applicable law In no case shall Appland be liable for any classification categorization or characterization of Your Content made by You prov
31. spension until You remedy the breach within the period given to You by Appland for these purposes such period being not less thirty 30 calendar days 12 3 LIMITATION OF LIABILITY EXCEPT FOR BREACHES OF SECTIONS 3 5 3 6 4 5 OR 7 1 OF THIS AGREEMENT OR WITH RESPECT TO YOUR OBLIGATIONS UNDER SECTION 11 OF THIS AGREEMENT IN NO EVENT SHALL EITHER PARTY ANY ENTITY WITHIN THE APPLAND GROUP THE PROCESSOR THEIR RESPECTIVE AFFILIATES CONTRACTORS PARTNERS SUCCESSORS ASSIGNS AS WELL AS THEIR RESPECTIVE DIRECTORS OFFICERS AND EMPLOYEES BE LIABLE TO THE OTHER FOR ANY INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS INCONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING FUNCTIONING USE DISTRIBUTION OR MARKETING OF THE CONTENT OR ANY RELATED ITEM OR SERVICE PROVIDED BY YOU OR APPLAND INCLUDING LOSS OF DATA IN NO EVENT SHALL APPLAND S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF AGENT FEES APPLAND RECEIVES UNDER THIS AGREEMENT DURING THE TWELVE 12 MONTHS IMMEDIATELY PRECEDING ANY SUCH CLAIM Notwithstanding the foregoing or anything to the contrary herein in no event will the exclusion of damages or limitations of liability apply to liabilities that cannot be limited by law 12 4 If Appland becomes aware of Content with child abuse or any other illegal materials subject to criminal law Appland may report it
32. st future payments You are owed under this Agreement or ii invoice this amount to You in which case You hereby agree to pay within thirty 30 days of the date of invoicing any amounts invoiced by Appland to You as a result of such Chargebacks 7 PRIVACY 7 1 End User Privacy You shall be solely responsible for protecting the privacy and legal rights of End Users of Your Content under all applicable laws and regulations and as a minimum You shall do as follows 7 1 1 If End Users provide You with or You gather or access End User Information You must make the End Users aware that certain End User Information will be available to You and You must provide a legally adequate privacy notice to End Users about it obtain the End User s permission to gather and use End User Information and ensure the protection of such End User Information 7 1 2 You may only use End User Information for the limited purposes for which the End User has given You permission to do so and only as long as it is needed to achieve such purposes and in no case may the End User Information be used in any manner that would violate Your privacy policy 7 2 Appland and or its partners and or subcontractors including but not limited to any entity within the Appland Group and or the Processor may collect certain statistics from the Store and End Users Devices including but not limited to information on how the Store and Devices are being used The informati
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