Terms and Conditions for Application Distribution
Whereas Licensor is the developer submitting their application for distribution in China (adfunded) and operator stores (Paid Optional) and whereas
Distributor is Appsborg who offer to distribute the Licensors application in China (adfunded) and operator stores (Paid Optional)
By distributing your app with the Distributor you agree to these terms and conditions.
Terms and Conditions :
This Agreement shall take effect from the delivery off your application and shall continue in force for a period of 2 years. The will automatically be extended unless either party expressly requests the agreements ends.
The Licensor hereby grants to the Distributor the right during the Term:
(a) to distribute copies of Licensed Content Elements to End-Users in the Territory of China (ad funded), Brazil (Paid), Mexico (Paid), Argentina (Paid), France and Spain (Paid). This service is Optional and only if the App is selected by the distributor. In China the Applications will be distributed to Chinese App stores. Appsborg will distribute the licensors applications to up to 10 Chinese app stores for free.
Applications will also be distributed to operator channels in Brazil, Mexico, Argentina, France and Spain are Operator channels and games will be Paid versions. The operator are as Follows Oi Brazil, Telcel Mexico, Persona Argentina, Movistar Spain, Orange Spain, Orange France and SFR France. New operator channels and Chinese app stores can be agreed by email.
The Licensor will also have the option to approve 40 more operator channels that the distributor can deliver the paid application. Approval can be done by email.
Gameloft: If selected and agree by the licensor the distributor will present the game to Gamelofts partner. If the game is approved by Gameloft partner the Distributor will also request the game be packaged according to Gameloft speciification regarding marketing assets. The game will then be delivered to Gameloft's Operator and B2C channels (448 channels globally for example Vodafone DE, IT, GR, Telcel Mexico, Oi brazil etc) and published when accepted by these channels. Approval for Gameloft channels can be agreed by email with the licensor. All payments will be conducted as normal as set out below in the contract.
(b) to store on its servers and create transitory copies of the Licensed Content as the Distributor may require to support the exploitation of the license granted in sub-clause (a) above;
(c) to play and perform the Licensed Content Elements (and permit End-Users to do the same);
(d) to make available on the Authorized Sites, a portion of any Licensed Content Element for “previewing” by the public;
(e) to modify the Licensed Content solely as required for delivery to a Mobile Device (for example, the format and/or size); and to modify the Licensed Content in order to watermark a piece of Image Content or Video Content to designate it as a “preview” or similar in respect of Music Content and App content;
(f) if an Authorized Site is not administered by the Distributor, to the extent required the Distributor may sub-license the license in sub-clause (a), (c) and (d) in respect of transient copying PROVIDED THAT the Licensed Content remains generally stored on its servers in accordance with sub-clause (b).
(g) In the event that permission has been granted for external hosting in the Commercial Terms for a particular Authorized Site, the Distributor may sub- license the licence in sub-clause (b) and the proviso contained in sub-clause (e) shall not apply. However the Distributor shall ensure that any permitted sub- licensee complies strictly with the terms of Clause 8 and shall be responsible to the Licensor for all defaults of such sub- licensee.
(1) The Licensor hereby grants to the Distributor the right:
(a) to distribute the Licensed Content via its own D2C sites (see glossary definition);and
(b) to distribute the Licensed Content via operators of mobile networks as defined above (a); and
(c) to distribute the Licensed Content via third-parties and to permit those third-parties themselves to distribute via operators of mobile networks.
(2) In the furtherance of the rights granted in sub-clause (1) above the Licensor hereby grants to the Distributor the right to grant sub-licences of the Licence on terms no wider than those of this Agreement and subject to the restrictions contained in Clause 10.
3. RESERVATION OF RIGHTS AND MARKETING
(1) Any rights not expressly granted in the Licences are expressly reserved to the Licensor.
(2) The Distributor may use the Licensed Content, or the name, likeness and/or voice of any Artist, Game IP or the cover-art (as applicable), any screen-shot, excerpt or similar for marketing and promotional purposes, unless not allowed by the Licensor, notified with a written note in electronic/mail form or/at ingestion time.
4. DELIVERY OF THE LICENSED CONTENT
The Licensor shall make the Licensed Content available to the Distributor:
(a )via an online download site, the details and access credentials for which will be provided by the Licensor. These Credentials are personal to the Distributor and the Distributor must keep a written record of all persons to whom the credentials have been supplied. This record must be promptly produced to the Licensor on request. The Licensor may assume that all use of the credentials is use by the Distributor unless the Distributor has notified the Licensor that the credentials have been compromised; and
(b) in the formats requested in writing by the Distributor, provided that the Licensor supports such formats.
5. CHANGES TO THE LICENSED CONTENT
(1) The Licensor may include further items as Licensed Content hereunder by including such items in the online download site above and informing the Distributor that it has done so.
(2) Subject to the remainder of this Clause, the Licensor may, at any time on at least 30 days’ notice in writing, withdraw the Licence over one or more Licensed Content Elements. If this before the initial 2 year agreement has ended then a USD 49 fee will be charged for work to remove the application from the stores.
6. REVENUE SHARE & PAYMENT
Chinese Stores: The Licensor keeps all revenue from all ads shown within their App as it is delivered to the distributor. The Distributor keeps all its revenue from ads shown on a timer after wrapping the Application. The distributor ads will be cross promotonal ads and normal ads and shown every 3-5 minutes as not to be to intrusive.
Samsung Stores (optional) : 65% of net revenue received by the Distributor from the licensors applications will be paid to the Licensor, and 35% paid to the Distributor.
Operator Stores: The net revenue received by the Distributor from the Licensors applications on the agreed paid operator channels will be split 50% for licensor and 50% for Distributor. The distributor can only pay the licensor once the distributor has reveived payment from the operator chanels.
Revenue will be paid monthly once your owed balance exceeds 300usd, if your account balance is inferior to 300usd after one month, this will simply accumulate on to the next month, and so on so forth until your balance reaches the minimum of 300usd, these payment will be made using PayPal.
7. RESTRICTIONS ON USE OF THE LICENSED CONTENT
(1) The Distributor shall not remove, deface or obscure any copyright notice included by the Licensor in the Licensed Content.
(2) The Distributor shall keep the Licensed Content securely on its systems so as to prevent, so far as technically and commercially feasible, the unauthorised access thereto.
(3) The Distributor shall provide a copyright method, if requested by the Licensor, ensuring that ensure that each Licensed Content Item delivered to an End- User is:
(4) The Distributor may not use any trade mark of the Licensor or its licensor, nor any Licensed Content (or part thereof), nor any Artist (or the likeness, name, voice of an Artist) in such a manner that implies an endorsement of any goods or services by the Licensor, any of its licensor and/or any Artist.
8. INSPECTION RIGHTS
(1) The Licensor shall have the right:
(a) to appoint an independent third party from an internationally recognised firm of auditors, to examine the Distributor’s records to determine the compliance by the Licensor of its obligations in Clause 9 and thus the accuracy of the Fees calculation; and/or
(b) to inspect the technical facilities of the Distributor (and any permitted sub- licensee) insofar as they relate to the Licensed Content.
(2) The Licensor shall provide the Distributor with at least 30 days prior written notice of the inspection and the inspection shall be conducted during normal office hours.
(3) In the exercise of its rights under sub-clause (1)(a), the Licensor may only exercise its right a maximum of one time in any rolling twelve month period and may not examine the records of the Licensor more than once for any period of time. In exercising its right, the Licensor must notify the Distributor for which period of time it is wishing to have the Distributor’s books examined.
(4) The Distributor shall be entitled to require the inspector to execute a non-disclosure agreement that prevents disclosure of any Confidential Information to any third party (including, without limitation, the Licensor). The Licensor shall be entitled to a disclosure by the inspector only of whether the Distributor has or has not complied with its obligations and, if not, what balancing payment is due (if relevant) and a brief description of the discerned reasons for non-compliance and the Licensed Content effected.
(5) If an inspection under sub-clause (1)(a) discloses an under or over payment by the Distributor the relevant Party will make a balancing payment within 30 days of receipt of an invoice from the other Party. If the balancing payment is greater than USD 1,000 (or foreign currency equivalent at the time of the audit report), interest, as calculated in accordance with Clause 12(3), shall also be due and payable on such sum.
(6) If an inspection under sub-clause (1)(b) discloses a failure in compliance, the same shall be considered a material breach of this Agreement and the Distributor shall remedy the defect promptly and in any event within the cure period set out in Clause 18(1)(a)(ii).
(7) The costs of such inspection shall be borne by the Licensor. If any failure is found the Distributor shall promptly reimburse the Licensor the difference with a 20% extra penalty.
9. INTELLECTUAL PROPERTY TITLE
(1) Nothing in this Agreement shall serve to transfer title or ownership in any Intellectual Property Rights owned by one Party to the other Party.
(2) The Distributor acknowledges that the Licensed Content is owned by or licensed to the Licensor
10. WARRANTIES AND REPRESENTATIONS
(1) Each Party represents and undertakes to the other that:
(a) It has the requisite corporate authority to enter into this Agreement and perform its obligations hereunder;
(b) The entry into this Agreement does not put it in breach of any contractual or other duty owed to any third party.
(2) The Licensor warrants and represents to the Distributor that:
(a) it owns the Intellectual Property Rights in the Licensed Content or, to the extent that it does not so own such rights, it has a sufficiently wide licence over such rights so as to be able to grant the Licences to the Distributor.
(b) neither the possession nor use of the Licensed Content by the Distributor or any of its permitted sub-licensors in accordance with the terms of this Agreement shall infringe the Intellectual Property Rights of any third party.
(c) the Application Content does not include, so far as the Licensor is aware, any virus, work, backdoor, trapdoor, time-bomb, logic-bomb, Trojan or other extraneous code designed to impair, hinder or prevent the performance of the Game Content and/or the relevant Mobile Device. Some Games, may, however, be designed by their publishers to be level-limited or similar. The licensor warrants that the application is acceptable for China with regards to content and does not contain Religious, political and sexual applications or content. This includes Bikini content.
11. EXCLUSIONS AND LIMITATIONS ON LIABILITY
(1) Neither party excludes or limits its liability to the other for:
(a) fraudulent misrepresentation;
(b) death or personal injury caused by the negligence;
of, in either case, that Party or the employees, agents or sub-contractors of that Party; nor
(c) any liability that cannot, by application of law or public policy, be excluded or limited.
(2) Subject to sub-clause (1) above, neither Party shall be liable under contract, tort or any other head of law, to the other Party for any indirect loss, consequential loss, loss of profits (whether direct or indirect), loss of earnings, loss of anticipated savings or loss of data.
(3) The Licensor agree's that at no point present or in the future for a period of 3 years from the start of this contract shall they directly or indirectly contact any of the Operators or operator distribution partners including Gameloft for the Paid distribution of there application. This means any of the operator channels they agreed the distributor to distrisbut to whether that was in this initial contract agreement or by email . If the Licensor does this will be treated as a serious breach of this contract and the Distributor will seek the appropriate revenue share of 50% of many games submitted within this period.
(1) This Agreement shall take effect from the delivery off your application and shall continue in force for a period of 2 years. The will automatically be extended unless either party expressly requests the agreements ends. For china the Licensor may, at any time on at least 30 days’ notice in writing, withdraw the Licence over one or more Licensed Content Elements. If this before the initial 2 year agreement has ended then a USD 49 fee will be charged for work to remove the application from the stores. For operator Channels and Samsung the game must be live for at least 18 months on a channels before removal can be requested. This is because the distributor and operator to publish an application incur substantial labour and translation costs. The distributors relationship could also be damaged if games are removed from sale soon after publishing.
(a) the other Party materially breaches this
Agreement and either:
(i) such breach is incapable of remedy; or
(ii) such breach remains unremedied after
30 days of receipt of notice from the non-breaching Party identifying the breach and requiring its remedy.
(b) the other party is unable to pay its debts as they fall due, is wound-up or has a liquidator, administrator, receiver or manager appointed over some or all of its assets or suffers any similar insolvency-related event in any jurisdiction
(c) the other party ceases to carry on business.
13. EFFECT OF TERMINATION
(1) On termination, hows ever caused, the
(a) cease distributing the Licensed Content
(b) desist from further distribution of Licensed Content;
(c) promptly delete the Licensed Content from its systems;
(2) Termination, howsoever caused, shall not affect the accrued rights and remedies of either Party.
(3) On termination, howsoever caused, the following clauses shall survive termination: Clauses 1, 9 (for the last Reporting Period),
14. CONFIDENTIAL INFORMATION
(1) All Confidential Information given by either Party to the other or otherwise obtained shall be treated by the other Party, its employees and subcontractors as confidential and shall not be used other than for the benefit of the disclosing Party or the furtherance of each Party’s obligations under this Agreement. The foregoing applies notwithstanding that such Confidential Information may have been disclosed prior to this Agreement.
(2) Each Party undertakes not to disclose, without the prior consent in writing of the other, Confidential Information belonging to or disclosed by the other in whole or in part to any other person save those of its employees, agents and contractors who are engaged in performing the provision or receipt of that Party’s obligations hereunder and have a reasonable need to know such information and to its board members, professional advisers and auditors who have a reasonable need to know such information in order to advise the Company or otherwise carry out their duties. Each Party undertakes to use the Confidential Information belonging to or disclosed by the other solely in connection with their performance of this Agreement and not for its own benefit or the benefit of any third party.
(3) Each Party undertakes
(a) to protect the Confidential Information of the other to at least the same manner as it protects its own; and
(b) not to co-mingle the Confidential Information of the other.
(4) The provisions of the preceding clause shall not apply to any information which:
(a) is trivial or obvious (for the avoidance of doubt an element that is trivial or obvious in and of itself should not necessarily be taken as trivial or obvious in the context of the whole of the Confidential Information);
(b) becomes public knowledge other than by breach of this clause;
(c) is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;
(d) is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure;
(e) is independently developed without use of the other Party’s Confidential Information; or
(5) It shall not be a breach of this Clause if the receiving Party is obliged to disclose the Confidential Information of the disclosing
Party by order of a court of competent jurisdiction, pursuant to a regulatory demand or the rules of an internationally recognised stock-exchange provided that, so far as practical, the receiving Party gives prior written notice of such disclosure and provides reasonable assistance to the disclosing Party in trying to prevent or contain such disclosure.
(6) At the request of a disclosing Party, the receiving Party shall promptly (and in any event within 30 days) return to the disclosing Party or destroy all Confidential Information of the disclosing Party and shall certify by a signature of a Director (as the term is understood in law) that is has complied with this sub-clause. In respect of confidential information stored electronically, it shall be sufficient that a party uses its reasonable endeavours to expunge such data from its systems. This shall not include the expunging of such data from a party’s enterprise level backups or archives unless and until such backups and/or archives are restored to a live environment.
If any part of this Agreement becomes or is illegal or unenforceable that part of this Agreement shall be deemed excised and the Parties shall act in good faith to replace the relevant part of this Agreement with an alternative that is not illegal or unenforceable and that maintains the intended business relationship between the Parties.
(1) This Agreement represents the entire relationship between the Parties and supersedes all previous written or other correspondence and agreements as to the subject matter of this Agreement.
(2) In entering into this Agreement, the Parties acknowledge and agree that they have not relied on any warranty or representation of the other Party save as to those that are expressed herein, and all such warranties and representations are expressly disclaimed by each Party including, without limitation, any warranty relating to fitness for any particular purposes and merchantable quality.
(3) The Parties are entering into this Agreement as principals and nothing in this Agreement shall serve to create any agency or partnership between the Parties.
(4) No amendment to this Agreement shall be valid unless made in writing and signed by authorised representatives of both Parties but new sales channels can be agreed by email.
(5) No rights under the Contracts (Rights of Third Parties) Act 1999 shall accrue to any third party in relation to this Agreement save that any Affiliate of the Distributor may enforce this Agreement directly against the Licensor.
(6) If either Party needs to send notices to the other Party they shall do so by first-class (or international equivalent) pre-paid post to the address given for that Party at the start of this Agreement or such other address as a Party may notify the other Party in accordance with this Clause.
(7) Any notice will be deemed to be delivered
48 hours after posting it unless posted internationally, in which case delivery shall be deemed to take place 72 hours after postage.
(8) Where there is an obligation to “inform” (as opposed to notify), providing such information by way of electronic mail shall be sufficient.
17. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong (without regard to its provisions on conflict of law) and the Parties submit unconditionally to the exclusive jurisdiction of the courts of Hong Kong.
Appsborg and Appsborg.com are domains and brand names owned by Smart Device International Ltd Hong Kong and the Licensor's contract is with Smart Device International Ltd Hong Kong which a limited company registered in Hong kong. The contract begin's with Appsborg/Smart Device International Ltd Hong Kong when the licensor delivers there Application for distribution to Appsborg/Smart Device International Ltd Hong Kong.
Affiliate means, in respect of a party, any company that is controlled by that party, controls that party or is under common control with that party. “control” for the purposes of this definition means the direct or indirect right to control the votes of the board of directors (or other relevant management body) and/or the votes in the company itself
Application means an executable programme designed to be used on a Mobile Device
Application Content means the Applications that the Licensor agrees to license to the Distributor under this Agreement
Billing Report means a report issued by the Distributor in accordance with Clause 9
Carrier Store means where the Distributor is either a Master Content Provider or utilize a third party to distribute to particular carrier store. Third parties and/or carrier will retain a share (varies on each channel) of the EUP
Distribution Channel means any storefront where the Distributor will sell content this includes: Direct to Consumers, Carrier stores.
Distributor is Appsborg who offer to distribute the Licensors application in China (adfunded) and operator stores (Paid)
Confidential Information means, without limitation, all information, software, data, manuals, concepts relating to marketing methods, products, developments, business and financial affairs and trade secrets (whether or not designated as “confidential information” by either Party and whether written, oral or in electronic form) and any other information clearly designated by the disclosing Party as confidential information or that is evidently confidential by its nature or the nature of its disclosure
End-User means an individual making use of a Mobile Device to access the Licensed Content where such Mobile Device has a home network in the Territory
Gross Income Margin means the money actually collected by Distributor (excluding VAT and chargebacks if any) from an End User for the purchase of the Content Credits actually redeemed by the End User to purchase licenses for Licensed Content Elements hereunder
Intellectual Property Rights means all patents, copyrights, database rights, design rights, registered designs, trademarks, trade names, know-how, rights in confidential information any other proprietary and/or intellectual property and/or similar rights; in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
Licensor is the developer submitting their application for distribution in China (adfunded) and operator stores (Paid)
Licences means those licences that are granted in Clause 4
Licensed Content means the Music Content, the Image Content, the Video Content, the Mobile Themes Content and the Applications Content
Licensed Content Element means a single item of Licensed Content and/or any derivative work thereof
MetaData means the ancillary information about each Licensed Content Element that the
Net Revenue means the revenue actually received by the Distributor in respect of the exploitation of the Licences in a Reporting Period less any VAT;
Retail Price means the price paid by an End-User for a Licensed Content Element (exclusive of VAT)
VAT means value added tax and any similar value added or sales tax that may be applicable