Partnership Agreement
DISTRIBUTION AGREEMENT - TERMS AND CONDITIONSThis is a licensing agreement between GadgetApps Ltd, Company Registration number: 6034574 (Aggregator) and developer (Content Partner) whereby developer grants to GadgetApps Ltd in the Territory during the Term a non-exclusive license for the Partner Content within guidelines outlined in this contract and to the extent incorporated for the Partner Content the Underlying Rights to distribute the Partner Content by Electronic Means including without limitation, by browsing, streaming, downloading, playback, storage and purchase.
It is accordingly agreed as follows:-
OPERATIVE CLAUSES
1. Interpretation In this Agreement :-
1.1 - The following expressions have the following meanings:
"Agreement" - A binding contract between Aggregator and the Content Partner.
"Device" - A digital computation equipment or computer including but not limited to Personal Digital Assistants (PDAs), Desktop Computers and Mobile Phones.
"Partner Content" - A product which is sourced by the Content Partner who has ownership and/or distribution rights for, which includes any Executables, Music Content, Images, Caller Tunes, MMS Content, Ring tones,Video Content and Digital Literature
"Music Content" means any product consisting of or including any musical work (including but not limited to monophonic, polyphonic or real music ringtones, Caller Tunes, music downloads).
"Executable" means a piece of software ( eg. game, utility, computer application) in the form of an executable file (e.g., .exe or .bat files), including class libraries, images and melodies that are required by the device concerned in order to use the full range of content functions; also including screenshots, FAQs (frequently asked questions) and other documentation that the Content Partner is obliged to deliver to Aggregator under this Agreement.
"Image" means any visual representation that is stored in digital format - this term also includes, without restrictions, a series of such representations that can be played in combination as an animation or a video clip.
"Caller Tune" means a type of Content consisting of an original master recording or an extract thereof (as selected by a user to be a customised call connection tone that a caller hears when calling that user) and which may be played simultaneously with a standard ITU call connection tone.
"Digital Literature" means any form of literature which has been digitised including but not limited to ebooks and so forth.
"Video Content" refers to the video clips of movies, dramas, plays, and any form of video, along with their individual titles.
"MMS Content" means a content package that consists of one or more images, melodies and/or items of text data and is transmitted via the MMS gateway, if necessary, together with program instructions (or codes) needed for the proper display and execution of the content package concerned
"Melody" means any monophonic or polyphonic sound or sound sequence that is stored in digital format and can be played in audible form on a device.
"Ring Tone" means a melody that a device can use to signal an incoming telephone call or similar event.
"SMS Text" means any text to be transmitted to a user in the form of an SMS message.
"Electronic Means" means any wireless and wireline technology (whether now known or subsequently developed) including but not limited to, that which is or may be used with radio frequency spectrum in any band, to enable or facilitate transmission of textual material, data, voice, audio, video, audio-visual and/or multimedia services to devices (including wireless technology employed in General Packet Radio Services (GPRS), the Global System for Mobile Communications (GSM), Personal Communications Networks (PCN), Code Division Multiple Access (CDMA and CDMA2000), Time Division Multiple Access (TDMA), Tetra, Local Area Networks (LAN), Wireless Local Area Networks (WLAN), Wireless Application Protocol (WAP), the Universal Mobile Telecommunications System (UMTS) and wireless-enabled websites and their related or derivative systems.
"Business Day" - A day other than Saturday, Sunday or a public bank holiday in England, USA and Canada.
"Transaction" - The sale of the Partner Content to a customer through the Aggregator or Aggregator affiliated or branded portal.
"Commission" - The agreed amount after revenue paid to Aggregator after sale of Partner Content.
"Royalty" - The agreed amount paid to the Content Partner after the sale of Partner Content at the Aggregator or Aggregator affiliated or branded portals.
"Aggregator's Marks" - Such trade names, trade marks or service marks owned by Aggregator as may be in use in connection with the sales and marketing of the product.
"Content Partner's Marks" - Such trade names, trade marks or service marks, logo owned by Content Partner as may be in use in connection with the sales and marketing of the product.
"Commencement Date" - As agreed between the Parties being the date on which the provision hereunder of the agreement will commence.
"Data" - All data relating to marketing collateral, customers and prospects of this title sold through Aggregator portals.
"Intellectual Property Rights" - Patents, trade marks, service marks, design rights (whether registerable or otherwise), copyright, know-how and other similar rights or obligations whether registerable or not in any country.
"Proprietary Information" - All information which relates to the business affairs products developments trade secrets know how personnel Customers and suppliers of either Party (whether or not designated as "proprietary information" by either party) together with all information derived from the foregoing or any other information which is by its nature confidential.
"Territory" - the world - All exceptions will be managed in the management screens accessible by the Content Partner, for each individual product where territorial restrictions can be defined and enforced.
"Musical Publishing Rights" - In the case of music, the rights in underlying literary and/or musical copyright works embodied in the Content.
"Underlying Rights" - any and all rights that may be embodied in the Partner Content including without limitation copyright, in the case of music; any performer's rights, copyright, and any other intellectual Property Right including the Musical Publishing Rights.
1.2 - A reference to an Act of Parliament shall include any modification extension replacement or re-enactment thereof for the time being in force and shall also include all instruments orders plans regulations permissions and directions for the time being made issued or given thereunder or deferring validity therefrom;
1.3 - The singular number shall include the plural and vice versa and reference to natural persons shall include bodies corporate;
1.4 - References to Aggregator and to Content Partner shall be construed as including each party's permitted assigns and/or successors to the benefit of this Agreement;
1.5 - The clause and schedule headings are for convenience only and shall be ignored for the purposes of construction;
1.6 - References to clauses, schedules, paragraphs and sub-paragraphs are to the clauses, schedules, paragraphs and sub-paragraphs of this Agreement;
2. Parties' Contribution
2.1 - Aggregator will promote and distribute the Partner Content(s) through the Aggregator portals ( including but not limited to www.gadgetapps.net, www.msmobilesoft.com, www.msmobileware.com) and/or Aggregator's Partner Channel branded Portals.
2.2 - Aggregator will manage the payment and collection process of all transactions through the Aggregator or Aggregator-affiliated branded portals.
2.3 - Upon successful payment collection, Aggregator will notify the Content Partner with the details of each transaction via email.
2.4 - Aggregator will provide the Content Partner with information on all transactions via password protected web screens.
2.5 - Upon request by the Content Partner Aggregator will provide royalty remittance by PayPal (in USD), to the Content Partner, including revenue based on sales aged at least 45 days totalling USD200 or more, minus commission to the Aggregator.
2.6 - All Royalty payments are subject to Aggregators receipt of all payments due from Aggregator's customers. Aggregator shall deduct from any Royalties due to Content Partner an amount equivalent to Royalties previously paid or credited on sales of the Partner Content which have since been charged back by Aggregator's customers (whether by reason of credit card fraud or other reason, which in Aggregator's judgment renders the account uncollectible.)
2.7 - Content Partner will be responsible to provide 2nd level support to all Partner Content support related queries by customers. These support queries will include 1) (where applicable) the sending of unlock codes to the customer 2) responding to technical support. Failure to respond within 48 hours will result in a service charge of 5 USD levied on the Content Partners account and a full refund to the customer.
2.8 - Content Partner warrants that all Partner Content is, as far as Content Partner can reasonably determine, free of all viruses and other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system operations or data. Before delivering any Partner Content to the Aggregator, Content Partner shall first test the Partner Content to ensure that it is, to a reasonable extent, free of viruses and defects.
2.9 - Information about customers delivered by the Aggregator to Content Partner shall not, without the permission of the customer, be made available to any third party in violation of applicable privacy and confidentiality laws.
2.10 - Content Partner will set the retail price applicable to each Partner Content item in the Aggregators Content Partner extranet system. The Aggregator and its Channel Partners may offer discounts, provided such discounts shall not exceed 20% of the retail price specified by Content Partner. Content Partner may offer the software for "free" or for any price that is equal to or greater than USD$0.99. The retail price cannot be higher than the applicable retail price provided to other distributors.
3. Royalty Agreement
3.1 - For all Partner Content sold at the Aggregator portals ( including but not limited to GadgetApps.net, MSMobileSoft.com and MSMobileWare.com), using Credit/Debit Card or PayPal, payment methods, royalties paid to the Content Partner are 65% of the retail value of each unit sold, whilst for J2ME/JAVA software sales royalties are 55% of the retail value.
4. Licence to Use Client Marks
4.1 - Aggregator hereby authorises the Content Partner on the terms set out in this agreement to use Aggregator's Marks in the form stipulated by Aggregator from time to time. The Content Partner shall observe the Aggregator's reasonable directions concerning the use of the Client Marks in all literature, stationery, invoices, publicity material and the like.
4.2 - Content Partner undertakes that it will not use any trade names, trade marks or service marks of Aggregator other than those whose use by the Content Partner is expressly authorised by Aggregator and further that it will not use the Client Marks in any way which would allow them to lose their distinctiveness, be liable to mislead the public, or be materially detrimental to or inconsistent with the goodwill, reputation or image of Aggregator or any Aggregator Group Company.
4.3 - Content Partner recognises Aggregator's proprietary rights in its trade names, trade marks or service marks including the Aggregator's Marks and undertakes not to do any act either alone or jointly with others which may jeopardise or in any way infringe Aggregator's title to its trade names, trade marks or service marks or which might invalidate any registration of such marks.
4.4 - Upon termination of this Agreement for any reason whatsoever the Content Partner shall immediately cease to make use of the Aggregator's Marks and shall do and execute all such acts, deeds and things that Aggregator shall require for the purpose of cancellation of the permission granted hereunder.
4.5 - The Content Partner acknowledges that its use of Aggregator's Marks shall not create for itself any rights in such marks and if any such rights are created Aggregator undertakes to assign such rights to Aggregator or as it shall otherwise direct.
4.6 - Aggregator warrants and undertakes to the Content Partner that the use of Aggregator's Marks for the purposes of and in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party.
5. Confidentiality
5.1 - The Content Partner will keep confidential any Proprietary Information and/or any information obtained from Aggregator in pursuance of this Agreement and neither will divulge the same to any third party (except such of its employees contractors and agents as may need to know the same for the purposes of the implementation of this Agreement and who agree to be bound by the provisions of this clause) or use the same (except as is reasonably necessary for the performance of obligations arising under this Agreement without the consent in writing of the other.
5.2 - The obligations aforesaid shall not apply to any material or information which :-
5.2.1 - is in the public domain (other than as a result of a breach of this Agreement);
5.2.2 - the receiving party can clearly demonstrate was already known to him;
5.2.3 - is lawfully disclosed to him by a third party (without breach of any obligation of confidentiality on the part of the disclosing party );
5.2.4 - is ordered to be disclosed by any court or other tribunal of competent jurisdiction.
6. Ownership of Data
6.1 - All customer data and any other Proprietary Information relating to the direct sale of the Partner Content through the Aggregator or Aggregator affiliated or branded portal is owned by Aggregator and the Content Partner.
7. Term
7.1 - This is a perpetual contract, unless either parties (Aggregator or the Content Partner decides) to terminate this contract giving 30 days notice.
8. Exclusion of all Damages
8.1 - To the maximum extent permitted by applicable law, in no event shall Aggregator be liable for any consequential, incidental, direct, indirect, special, punitive or other damages whatsoever (including, without limitiation, damages for any injury to person of property, damages for loss of profits, business interruption, loss of business information, for loss of privacy for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Partner Content(s), whether based on contract, tort, negligence, strict liability or otherwise, even if Aggregator has been advised of the possibility of such damages. The exclusion of damages shall be effective even if any remedy fails of its essential purpose.
9. Entire Agreement
9.1 - This Agreement contains all the terms which the Parties have agreed in relation to the transactions provided for by this Agreement and neither of the parties have been included to enter this Agreement by a statement or promise which it does not contain. This shall not exclude any liability which a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of this Agreement.
10. Contracts (Rights of Third Parties) Act 1999
10.1 - A person who is not a Party to this Agreement at the relevant time from time to time has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
11. Operative Law
11.1 - This Agreement shall be considered as a contract made in England and according to English law and subject to the exclusive jurisdiction of the English courts to which both parties hereby submit.
12. Proprietary rights
12.1 - Ownership by Content Partner. The parties agree that the Content Partner owns all proprietary rights, including copyrights, patents, trademarks, and trade secrets, in and to the Partner Content and that this Agreement does not transfer ownership of any of these rights.
13. Representations and Warranties.
13.1 Content Partner hereby represents and warrants that: (a) Content Partner is the sole and exclusive owner of all right, title and interest in and to the Partner Content, and/or has full distribution rights of the Partner Content, in the Territory during the Term of this agreement, including and not limited to copyright, patent, trade secret and trademark rights. (b) none of the Partner Content infringes upon or otherwise violates any rights, including without limitation, copyright, patent, trade secret or trademark rights, of any person or entity (c) Content Partner has full power to enter into this Agreement and to grant all rights herein granted; and (d) there is not now any outstanding litigation or threat of litigation or claim or threats of claims that affect or are concerned with or any way touch upon the Partner Content or any of the rights granted by Content Partner pursuant to this Agreement.
14. Content Partner Indemnification.
14.1 Content Partner will, at its sole cost and expense, indemnify, defend and hold harmless Aggregator, its parent, subsidiaries, affiliates, successors and assigns, and the officers, directors, members, managers, shareholders, administrators, agents and employees of same, from and against any and all claims, demands, actions, suits, judgments and liabilities of any kind and character whatsoever (collectively, "Claims") arising out of or in connection with breach of any representation or warranty by Content Partner, and Content Partner shall pay all damages arising from same, including but not limited to attorneys' fees. Content Partner agrees to cooperate fully with Aggregator in the defense of such Claims.
15. Amendment
15.1 Aggregator may, from time to time, modify the terms of this Agreement by posting the revised agreement on Aggregator's website and notifying Content Partner of the change by e-mail or by posting to the Partner News section of the login screens or any other means reasonably calculated to inform Content Partner of the terms of the revised agreement. Unless Content Partner objects to the revised agreement in writing to Aggregator within fifteen (15) days of receiving notice of the change, in which case no revision will take effect, Content Partner will be deemed to have accepted the terms of the revised Agreement and the as-revised Agreement will take effect and be binding on both parties at the end of Content Partner's fifteen (15) day objection period. No modification, amendment, supplement to or waiver of any provision of this Agreement shall be binding upon the Parties unless in writing and accepted by Content Partner in the manner described above or signed by both Parties.
16. Special Provisions
16.1 MUSIC AND VIDEO CONTENT
The Content Partner shall provide details of payments made to collecting societies and other licensors, in addition to any other information reasonably requested by Aggregator from time to time.
The Content Partner will take sole responsibility in obtaining any necessary licences from the relevant collecting society or other licensor as may be required to reproduce, adapt, make available, distribute or otherwise exploit the Music and/or Video Content and the musical works underlying such Music and/or Video Content in any part of the world.
SCHEDULE I : Territory, countries, excluded by this Agreement
Territory restrictions for specific content are to be outlined below or may be provided as an excel spreadsheet. Any content not specified will default to the definition of Territory as outlined in definitions.
BY COMPLETING THE INFORMATION OR CLICKING THE "I ACCEPT THE AGREEMENT TERMS AND CONDITIONS" BUTTON BELOW, YOU REPRESENT AND WARRANT THAT THE INFORMATION PROVIDED BELOW IS TRUE AND ACCURATE, YOU ARE AT LEAST 18 YEARS OLD, AN AUTHORIZED REPRESENTATIVE OF THE CONTENT PARTNER AND HAVE THE POWER AND AUTHORITY TO ENTER INTO AND BIND CONTENT PARTNER TO THIS AGREEMENT. YOU AND THE CONTENT PARTNER, ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT (WHICH INCLUDES ALL EXHIBITS), UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.