APP BAZAAR DEVELOPER DISTRIBUTION AGREEMENT
1. “Agreement” means this App Bazaar Developer Distribution Agreement.
2. “App Bazaar” means the marketplace OSLabs Technology (India) Pvt Ltd has created and operates which allows registered Developers in certain countries to distribute Products directly to users of Devices.
3. “Brand Features” means the trade names, trademarks, service marks, logos, domain names,and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
4. “Developer or You”: Any person or company who is registered and approved by App Bazaar to distribute Products in accordance with the terms of this Agreement.
5. “Developer Account”: A publishing account issued to Developers that enables the distribution of Applications via App Bazaar.
6. “Devices”: Any device that can access App Bazaar, as defined herein.
7. “OSLabs Technology (India) Pvt Ltd”: OSLabs Technology (India) Pvt Ltd Solutions Pvt. Ltd. an Indian company having principal place of business at 505 5th Floor Town Centre 1, Opp. Times Square, Andheri Kurla Road, Sakinaka, Andheri (E) Mumbai 400059.
8. Products: Software, content and digital materials distributed via the App
2. AGREEMENT FORMATION:
1. Acceptance of this Agreement: This Agreement forms a legally binding contract between you and OSLabs Technology (India) Pvt Ltd in relation to your use of the App Bazaar to distribute Products. You acknowledge that OSLabs Technology (India) Pvt Ltd will, solely on your behalf, and not on OSLabs Technology (India) Pvt Ltd’s behalf, display and make Products available for download and purchase by users. In order to use the App Bazaar to distribute Products, you must accept this Agreement. You may not distribute Products on the App Bazaar if you do not accept this Agreement.
2. Authority: You represent and warrant that you are of the legal age of majority in the country in which you reside (typically 18) or that you have your parent or legal guardian’s permission to agree to these terms. If you are agreeing to be bound by this Agreement on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have such legal authority, you may not accept this Agreement or submit Products for App Bazaar on behalf of your employer or any other entity.
3. LICENSE GRANTS
1. You grant to OSLabs Technology (India) Pvt Ltd a non-exclusive, worldwide and royalty-free license to: reproduce, perform, display and use your name and Products for administrative and demonstration purposes in any medium, in connection with (i) the operation and marketing of the App Bazaar; (ii) the marketing of devices and services that support the use of the Products, and (iii) making improvements to the App Bazaar platform.
2. OSLabs Technology (India) Pvt Ltd may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this Agreement, provided that such consultants and contractors are subject to the same obligations as OSLabs Technology (India) Pvt Ltd. After termination of this Agreement, OSLabs Technology (India) Pvt Ltd will not distribute your Product, but may retain and use copies of the Product for support App Bazaar platform.
3. You grant to the user a non-exclusive, worldwide and perpetual license to perform, display and use the Product on the Device. If you choose, you may include a separate end user license agreement (EULA) in your Product that will govern the user's rights to the Product in lieu of the previous sentence.
4. You represent and warrant that you have all the intellectual property rights, including all necessary patents, trademarks, trade secrets, copyrights or other proprietary rights, in and to the Product. If you use third-party materials, you represent and warrant that you have the right to distribute the third-party material in the Product. You agree that you will not submit material to App Bazaar that is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit the material.
4. BRAND FEATURES AND PUBLICITY
1. Brand feature Ownership and License. Each party will own all right, title and interest (including, without limitation, all intellectual property rights) in and to its Brand Features. Except to the limited extent expressly provided in this Agreement, neither party grants, nor will the other party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the other party. Subject to the terms and conditions of this Agreement, you grant to OSLabs Technology (India) Pvt Ltd a limited, non-exclusive license during the term of this Agreement to display your Brand Features, submitted by you to OSLabs Technology (India) Pvt Ltd, for use in connection with the distribution and sale of your Products through App Bazaar and/or to otherwise fulfill OSLabs Technology (India) Pvt Ltd's obligations under this Agreement. If you discontinue the distribution of specific Products on the App Bazaar, OSLabs Technology (India) Pvt Ltd will cease use of the discontinued Products' Brand Features pursuant to this Section 4.1, except as necessary to allow OSLabs Technology (India) Pvt Ltd to facilitate any reinstalls for users who downloaded the Products prior to the date you removed them from the App Bazaar.
2. No Confusion. Unless you have received OSLabs Technology (India) Pvt Ltd's express written permission, you will not otherwise use any trademark, service mark, commercial symbol or other proprietary right of OSLabs Technology (India) Pvt Ltd as part of the title for any of your Products.
3. Publicity. In addition to the license granted in 4.1 above, for purposes of marketing the presence and distribution of the your Products via the App Bazaar, OSLabs Technology (India) Pvt Ltd may include your Brand Features submitted by you to OSLabs Technology (India) Pvt Ltd: (a) within the App Bazaar and in any OSLabs Technology (India) Pvt Ltd owned online or mobile properties; (b) in other online or mobile communications; © in presentations; and (d) in customer lists, which appear either online or on mobile devices (which includes, without limitation, customer lists posted on OSLabs Technology (India) Pvt Ltd website). If you discontinue the distribution of specific Products via the App Bazaar, OSLabs Technology (India) Pvt Ltd will cease use of the discontinued Products' Brand Features for such marketing purposes within a reasonable period of time.
5. PRICING AND PAYMENTS
1. This Agreement covers both Products you choose to distribute for free and Products for which you charge a fee. In order to charge a fee for your Products, you must have a valid payment account under a separate agreement with a payment processor.
2. Products are displayed to users on your behalf, at prices you establish at your sole discretion. OSLabs Technology (India) Pvt Ltd may include applicable taxes in the price charged to users on the App Bazaar. You may set the price for your Products in the currencies permitted by the Payment Processor. OSLabs Technology (India) Pvt Ltd may display the price of Products to users in their native currency, but it is not responsible for the accuracy of currency rates or currency conversion.
3. You may also choose to distribute Products free of charge. If the Product is free, you will not be charged a Transaction Fee. You may not start charging a user for a Product that was initially free unless the charge correlates with an alternative version of the Product. The Payment Processor must process all fees a Developer receives for any version of a Product distributed via the App Bazaar.
4. You Support Your Product. Buyers are instructed to contact the Developer concerning any defects or performance issues in applications downloaded and installed from App Bazaar. You will be solely responsible for, and OSLabs Technology (India) Pvt Ltd will have no responsibility to undertake or handle support and maintenance of your Products and any complaints about your Products.
5. Authority to Refund. You authorize OSLabs Technology (India) Pvt Ltd to give the buyer a full refund of the price of a Product or in-app transaction on your behalf if the buyer requests the refund at any time within 48 hours after purchase. In all other respects, the Payment Processor’s standard terms and conditions regarding refunds will apply.
6. YOUR USE OF THE APP BAZAAR
1. Limited License. Except for the license rights granted by you in Sections 3 and 4 above, OSLabs Technology (India) Pvt Ltd agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of your Products, including any intellectual property rights in those Products.
2. Use of Apps. You agree to use App Bazaar and related market only for purposes that are permitted by: (a) this Agreement; and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions in which your Products are distributed or used (including any laws regarding the export of data or software to and from the India or other relevant countries).
4. Prohibited Actions. You agree that you will not engage in any activity with the app Bazaar and/or the related market, including the development or distribution of Products, which interferes with, disrupts, damages or accesses in an unauthorized manner the devices, servers, networks or other properties or services of any third party and their users, OSLabs Technology (India) Pvt Ltd or any mobile network operator.
5. Non-Compete. You may not use App Bazaar to distribute or make available any Product whose primary purpose is to facilitate the distribution of software applications for Android and/or iOS mobile devices that do not make use of, do not interact with and/or are unrelated to the Devices.
6. Sole Responsibility. You agree that you are solely responsible for (and that OSLabs Technology (India) Pvt Ltd has no responsibility to you or to any third party for) any Products you distribute App Bazaar and for the consequences of your actions (including any loss or damage that OSLabs Technology (India) Pvt Ltd may suffer as a result). You agree that you are solely responsible for (and that OSLabs Technology (India) Pvt Ltd has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third-party contract or terms of service, or any applicable law or regulation and for the consequences (including any loss or damage which OSLabs Technology (India) Pvt Ltd or any third party may suffer) of any such breach.
7. Uploading Products to App Bazaar. You will be responsible for uploading your Products to App Bazaar, providing required Product information to users and accurately disclosing the security permissions necessary for the Product to function on user Devices, as applicable. Products that are not properly uploaded will not be published in the App Bazaar.
8. Restricted Content. Any Product you distribute on the App Bazaar must adhere to the Developer Terms and Conditions.
7. PRODUCT TAKEDOWNS
1. Your Removals. You may remove your Products from future distribution via App Bazaar at any time, but you must comply with this Agreement for any Products distributed through the App Bazaar. Removing your Products from future distribution via App Bazaar does not (a) affect the license rights of users who have previously purchased or downloaded your Products, (b) remove your Products from Devices or from any part of the App Bazaar where previously purchased or downloaded applications are App Bazaar on behalf of users, or © change your obligation to deliver or support Products or services that have been previously purchased or downloaded by users. Notwithstanding the foregoing, in no event will OSLabs Technology (India) Pvt Ltd maintain on any portion of the App Bazaar (including, without limitation, the part of App Bazaar where previously purchased or downloaded applications are App Bazaar on behalf of users) any Product that you have removed from App Bazaar and provided written notice to OSLabs Technology (India) Pvt Ltd that such removal was due to (i) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (ii) an allegation of defamation or actual defamation, (iii) an allegation of violation, or actual violation, of any third-party's right of publicity or privacy, or (iv) an allegation or determination that such Product does not comply with applicable law. If you remove a Product from App Bazaar pursuant to clauses (i), (ii), (iii) or (iv) of this Section 6.1, and an end user purchased such Product within a year before the date of removal, at OSLabs Technology (India) Pvt Ltd's request, you must refund to the affected end user all amounts paid by such end user for such affected Product, less the portion of the Transaction Fee specifically allocated to the credit card/payment processing for the associated transaction.
2. OSLabs Technology (India) Pvt Ltd Removals. While OSLabs Technology (India) Pvt Ltd does not undertake an obligation to monitor the Products or their content, if OSLabs Technology (India) Pvt Ltd is notified by you or otherwise becomes aware and determines at its sole discretion that a Product or any portion thereof or your Brand Features; (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; © is pornographic, obscene or otherwise violates OSLabs Technology (India) Pvt Ltd's hosting policies or other terms of service as may be updated by OSLabs Technology (India) Pvt Ltd from time to time at its sole discretion; (d) is being distributed by you improperly; (e) may create liability for OSLabs Technology (India) Pvt Ltd; (f) is deemed by OSLabs Technology (India) Pvt Ltd to have a virus or is deemed to be malware, spyware or have an adverse impact on OSLabs Technology (India) Pvt Ltd’s network; (g) violates the terms of this Agreement or OSLabs Technology (India) Pvt Ltd Terms and Conditions; or (h) the display of the Product is impacting the integrity of OSLabs Technology (India) Pvt Ltd servers (i.e., users are unable to access such content or otherwise experience difficulty), OSLabs Technology (India) Pvt Ltd may remove the Product from the App Bazaar or reclassify the Product at its sole discretion. OSLabs Technology (India) Pvt Ltd reserves the right to suspend and/or bar any Developer from App Bazaar at its sole discretion. If your Product contains elements that could cause serious harm to user devices or data, OSLabs Technology (India) Pvt Ltd may at its discretion disable the Product or remove it from devices on which it has been installed. OSLabs Technology (India) Pvt Ltd may suspend or terminate distribution of your Products if you materially breach the terms of any non-disclosure agreement or other agreement relating to the App Bazaar. OSLabs Technology (India) Pvt Ltd enters into distribution agreements with device manufacturers and authorized carriers to place the App Bazaar software client application on Devices. These distribution agreements may require the involuntary removal of Products in violation of the Device manufacturer's terms of service. In the event that your Product is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third-party's right of publicity or privacy, or does not comply with applicable law, and an end user purchased such Product within a year before the date of removal,: (i) you must refund to OSLabs Technology (India) Pvt Ltd all amounts received, plus any associated fees (i.e. chargebacks and payment transaction fees), and (ii) OSLabs Technology (India) Pvt Ltd may, at its sole discretion, withhold from your future sales the amount in subsection (i) above.
9. TERM AND TERMINATION
1. This Agreement is effective until terminated by OSLabs Technology (India) Pvt Ltd or you as described below.
2. You may terminate this Agreement by providing OSLabs Technology (India) Pvt Ltd with thirty (30) days' prior written notice, unless this Agreement otherwise terminates pursuant to Section 8.2.
3. OSLabs Technology (India) Pvt Ltd may terminate this Agreement at any time if: (a) you have breached any provision of the this Agreement; (b) OSLabs Technology (India) Pvt Ltd is legally required to do so; or © OSLabs Technology (India) Pvt Ltd decides not to provide the App Bazaar to users in the country in which you reside.
4. The provisions of Sections 1, 4.3, 7, 8.3, and 9 through 13 of this Agreement will survive any termination or expiration of this Agreement.
10. DISCLAIMER OF WARRANTIES
11. LIMITATION OF LIABILITY
1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT OSLABS TECHNOLOGY (INDIA) PVT LTD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT OSLABS TECHNOLOGY (INDIA) PVT LTD OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
1. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless OSLabs Technology (India) Pvt Ltd, its affiliates and their respective directors, officers, employees, agents and representatives from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of or allegedly based (in whole or in part) on: (a) your use of the App Bazaar; (b) your Product(s) (and any content contained therein); © any violation by you of any applicable law or regulation, including, without limitation, the violation of any privacy law or regulation; or (d) any non- compliance by you with the terms of this Agreement.
13. CHANGES TO THE AGREEMENT
1. OSLabs Technology (India) Pvt Ltd may make changes to this Agreement and terms and Conditions at any time. You should look at the Agreement, and check for notice of any changes, regularly. If you do not agree with the modifications to the Agreement, you must terminate your use of App Bazaar, which will be your sole and exclusive remedy. You agree that your continued use of App Bazaar constitutes your agreement to the modified terms of this Agreement.
14. GENERAL LEGAL TERMS
1. This Agreement constitutes the whole legal agreement between you and OSLabs Technology (India) Pvt Ltd and governs your use of the App Bazaar, and completely replaces any prior agreements between you and OSLabs Technology (India) Pvt Ltd in relation to the App Bazaar.
2. You agree that if OSLabs Technology (India) Pvt Ltd does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which OSLabs Technology (India) Pvt Ltd has the benefit of under any applicable law), this will not be taken to be a formal waiver of OSLabs Technology (India) Pvt Ltd's rights and that those rights or remedies will still be available to OSLabs Technology (India) Pvt Ltd.
3. 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 will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
4. You acknowledge and agree that each member of the group of companies of which OSLabs Technology (India) Pvt Ltd is the parent shall be third-party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favour of) them. Other than this, no other person or company shall be third-party beneficiaries of this Agreement.
5. EXPORT RESTRICTIONS. PRODUCTS ON THE APP BAZAAR MAY BE SUBJECT TO INDIAN EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF PRODUCTS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
6. The rights granted in this Agreement may not be assigned or transferred by either you or OSLabs Technology (India) Pvt Ltd without the prior written approval of the other party. Neither you nor OSLabs Technology (India) Pvt Ltd shall be permitted to delegate the responsibilities or obligations under this Agreement without the prior written approval of the other party. Any other attempt to assign is void. If you experience a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) you will give written notice to OSLabs Technology (India) Pvt Ltd within 30 days after the change of control; and (b) OSLabs Technology (India) Pvt Ltd may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.
7. All claims arising out of or relating to this Agreement or your relationship with OSLabs Technology (India) Pvt Ltd under this Agreement, shall be governed by the laws of the India. The parties hereby accept the exclusive jurisdiction of the courts in Mumbai, Maharashtra.
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