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Definitions
Authorized Operator. A mobile network operator who is authorized to receive a distribution fee for Products that are sold to users of Mobile Devices on its network.
Brand Features. 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.
Employer. Where the registration is completed by an employee or an authorized representative, the Employer is the Partner as if it was completed by the Partner itself.
Partner or You. Any company who has registered and is approved by APPTUTTi to publish Products in accordance with the terms of this Agreement. In case that the registration is completed by an employee or an authorized representative, you will be the employee or the authorized representative of the Partner.
Partner Account. A publishing account issued to Partners, which enables the publication of Products via APPTUTTi.
Partner Resources Portal. The portal that resources, downloads, software development kit, plug-ins or other online tools provided by APPTUTTi to Partners to manage the publication of Products and related administrative functions.
Mobile Device. Any mobile devices, such as smartphones, tablets, etc. that can access APPTUTTi’s allied publishing Channel(s) in China, as defined herein.
APPTUTTi. APPTUTTi Group Limited and/or APPTUTTi (Hong Kong) Limited both incorporated under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China, its subsidiaries, associates, and/or affiliates.
Products: Software, content and digital materials from Partners to be published by APPTUTTi.
Publishing Channel(s). The marketplace that APPTUTTi uploads and publishes the Products, including but not limited to all available App stores or Game stores whether directly or indirectly through Publisher as well as mobile device built-in store operated by Mobile Device manufacturers.
RSPP. The short form of a program title: Register/Submit/Plug/Publish (RSPP)
DDCP. The short form of a program title: Deep Dive Customization Program (DDCP)
Introduction
In order to distribute Products on the Publishing Channel(s), the Partner must acquire and maintain a valid Partner Account either in form of RSPP or DDCP Programs.
Accepting this Agreement
This agreement ("Agreement") forms a legally binding contract between Partner and APPTUTTi in relation to the use of the Partner Resources Portal provided by APPTUTTi and authorization grants to APPTUTTi to publish Products. You acknowledge that APPTUTTi will, solely on your behalf, and not on APPTUTTi’s behalf, display and make Products available for download and purchase by Device users. In order to use the Publishing Channel(s) to publish the Products, you must accept this Agreement and provide complete and accurate information in the Partner Resources Portal. You may not publish Products on the Publishing Channel(s) if you do not accept this Agreement. If you agree to be bound by this Agreement on behalf of your employer or any other 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 the requisite authority, you may not accept the Agreement or use the Partner Resources Portal on behalf of your employer or any other entity.
Pricing and Payments
This Agreement covers both Products you choose to publish for free and Products for which you charge a fee. In order to charge a fee for your Products, you must have a valid Partner Account and must use APPTUTTi’s Billing Plug-In Package (software development kit and related documentation) for billing integration.
Products are published by APPTUTTi to users on your behalf, at prices that you establish at your sole discretion. APPTUTTi may include additional applicable taxes (if any) in the price charged to users on the Publishing Channel(s). You may set the price for your Products in the currencies permitted by the Billing Plug-In. APPTUTTi will display the price of Products to users in local currency applicable in the respective market. APPTUTTi is not responsible for the accuracy of currency rates or currency conversion in Partner’s calculation of the prices.
You are the merchant of record for Products you sell through the Publishing Channel(s). The price you set for Products will determine the amount of payment you will receive. A Transaction Fee will be charged on the sales price and apportioned to the Authorized Operator and the related administrative parties. Where either the Authorized Operator or the related administrative parties are required by applicable (local) legislation to withhold any taxes ("Withholding Taxes") on payments made or received by anyone of them, APPTUTTi will also deduct an amount equal to such Withholding Taxes from the sales proceeds. For the avoidance of doubt, Withholding Taxes include, but are not limited to, withholding tax obligations on cross-border payments or imposed by telecommunications taxes. The remainder (sales price less Transaction Fee, and less the amount equal to any Withholding Taxes) will be split equally between you and APPTUTTi and will be credited to you through your registered Partner Account.
Partner is responsible for determining if a Product is taxable under any law applicable in its country of domicile or incorporation or any other jurisdiction where the Partner is subject to payment of any tax and the applicable tax rate for APPTUTTi to collect from the users when Products are sold. The Partner is responsible for remitting taxes to the appropriate taxing authority. Where APPTUTTi or the Authorized Operator is required by applicable (local) legislation to determine, apply and pay the applicable tax rate, APPTUTTi or the Authorized Operator (and not Partner) will be responsible for applying and collecting and remitting the taxes to the appropriate taxing authority.
Partner may also choose to publish Products for free. 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 Billing Plug-In Package must process all fees that a Partner receives for any version of a Product distributed via the Publishing Channel(s).
User or Buyer Support. Buyers are instructed to contact the Partner concerning any defects or performance issues in applications downloaded and installed from the Publishing Channel(s). You will be solely responsible for, and APPTUTTi will have no responsibility to undertake or handle, support and maintenance of your Products and any complaints about the Products. Partner must supply and maintain valid and accurate contact information that will be displayed in each application detail page on the Publishing Channel(s) and made available to users for customer support and legal purposes. For paid Products or in-app transactions, Partner must respond to customer support inquiries within three (3) working days, and within 24 hours to any support or Product concerns stated to be urgent by APPTUTTi. Failure to provide adequate information or support for the Products may result in low Product ratings, less prominent product exposure, low sales, billing disputes or removal from the Publishing Channel(s).
Authority to Refund. Partner authorizes APPTUTTi to give the buyer a full refund of the price of a Product or in-app transaction on behalf of Partner if the buyer requests the refund at any time within 48 hours after purchase. In all other respects, the Billing Plug-In’s standard terms and conditions regarding refunds will apply. User refunds may be exclusive of taxes previously charged to users for Product purchases.
Reinstalls. Users are allowed unlimited reinstalls of each Product published via APPTUTTi’s allied Publishing Channel(s), provided however that if you remove a Product(s) from the Publishing Channel(s) pursuant to clauses (i), (ii), (iii) or (iv) of the Section “Product Takedowns”, such Product(s) shall be removed from all portions of the Publishing Channel(s) and users shall no longer have a right or ability to reinstall the affected Products.
Use of the Partner Resources Portal by Partner
Except for the license rights granted by Partner in Section “License Grants” below, APPTUTTi agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of Products, including any intellectual property rights which subsist in those Products. Partner agrees to use the Partner Resources Portal 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. Partner agrees that if using APPTUTTi’s allied Publishing Channel(s) to distribute Products, you will protect the privacy and legal rights of users. If the users provide you with, or the Product accesses or uses, user names, passwords or any other login information or personal information, you must make the users aware that the information will be available to your Product and you must provide a legally adequate privacy notice and protection for those users. Furthermore, the Product may only use that information for the limited purposes for which the user has given you permission to do so. If the Product stores personal or sensitive information provided by users, it must do so securely and only for as long as it is needed. But if the user has opted into a separate agreement with Partner that allows Partner or the Product to store or use personal or sensitive information directly related to the Product (not including other products or applications) then the terms of that separate agreement will govern the use of such information.
Prohibited Actions. You agree that you will not engage in any activity with APPTUTTi and its allied Publishing Channel(s), including the development or distribution of Products, that interferes with, disrupts, damages or accesses in an unauthorized manner the devices, servers, networks or other properties or services of any third party including, but not limited to, Android users, APPTUTTi or any mobile network operator. You may not use customer information obtained from APPTUTTi and/or its allied Publishing Channel(s) to sell or distribute Products outside of the Publishing Channel(s). You agree that you are solely responsible for (and that APPTUTTi has no responsibility to you or to any third party for) any Products you distribute through the APPTUTTi’s allied Publishing Channel(s) including use of any APPTUTTi Plug-Ins and for the consequences of your actions (including any loss or damage which APPTUTTi may suffer) by doing so. These consequences include, but are not limited to, product liability, consumer protection and/or intellectual property claims relating to your products. You agree that you are solely responsible for (and that APPTUTTi 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 APPTUTTi or any third party may suffer) of any such breach.
Restricted Content. Any Product you distribute on the Publishing Channel(s) must adhere to the APPTUTTi Partner Program Policy.
License Grants
You grant to APPTUTTi an exclusive and royalty-free license to: reproduce, perform, display and use the Products for administrative and demonstration purposes in connection with (i) the operation and marketing of the Publishing Channel(s); (ii) the marketing of devices and services that support the use of the Products and (iii) making improvements to the Android or iOS platform.
You grant to APPTUTTi an exclusive and royalty-free license to distribute the Products in the manner indicated in the Partner Resources Portal for publishing the Products in APPTUTTi’s allied Publishing Channel(s). APPTUTTi 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 APPTUTTi.
The exclusive and royalty-free license granted as mentioned above is for a period of twenty-four months and upon expiry automatically renewed for a period of twelve months so on and so forth until being terminated in the manner as set forth in the termination clause.
After termination of this Agreement, APPTUTTi will not distribute your Product, but may retain and use copies of the Product for support of the Publishing Channel(s).
You grant to the user a non-exclusive, worldwide and perpetual license to perform, display and use the Product on the Device.
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 APPTUTTi 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.
In order to protect the intellectual property rights of Partner’s product, you authorize APPTUTTi to apply for intellectual property registration applicable where the products are to be published. The authorization is an irrevocable licence granted to APPTUTTi for so long as APPTUTTi in operating and marketing Partner’s product or products as herein mentioned above so as to allow APPTUTTi to consistently provide the services.
Brand Features and Publicity
Each party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Brand Features. With the exception of the limited extent expressly provided in this Agreement, neither party grants, nor shall the other party acquire, any rights, 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, Partner grants to APPTUTTi and its affiliates a limited, non-exclusive, royalty-free license during the term of this Agreement to display Partner Brand Features, submitted by Partner to APPTUTTi, for use solely online or on mobile devices and in either case solely in connection with the distribution and sale of Partner's Product through the Publishing Channel(s), or to otherwise fulfil its obligations under this Agreement. If Partner discontinues the distribution of specific Products on the Publishing Channel(s), APPTUTTi will cease use of the discontinued Products' Brand Features pursuant to this Section “Brand Features and Publicity”, except as necessary to allow APPTUTTi to effectuate Section “Reinstalls”. Nothing in this Agreement gives Partner a right to use any of APPTUTTi's trade names, trademarks, service marks, logos, domain names or other distinctive brand features.
Publicity. In addition to the license granted above, for purposes of marketing the presence, distribution and sale of the Partner's Product in the Publishing Channel(s) and its availability for use on devices and through other APPTUTTi services, APPTUTTi and its affiliates may include Partner Brand Features, submitted by Partner to APPTUTTi: (i) within the Publishing Channel(s) and in any APPTUTTi owned online or mobile properties; (ii) in online, mobile, television, out of home (e.g. billboard), and print advertising formats outside the Publishing Channel(s) when mentioned along with other Publishing Channel Products; (iii) when making announcements of the availability of the Product; (iv) in presentations; and (v) in customer lists which appear either online or on mobile devices (which includes, without limitation, customer lists posted on APPTUTTi websites). If Partner discontinues the distribution of specific Products on the Publishing Channel(s), APPTUTTi will cease further use of the discontinued Products' Brand Features for such marketing purposes.
Product Takedowns
Your Takedowns. You may remove your Products from future distribution via the Publishing Channel(s) at any time, but you must comply with this Agreement and the Billing Processor's Payment Account terms of service for any Products distributed through the Publishing Channel(s), including but not limited to refund requirements. Removing your Products from future distribution via the Publishing Channel(s) 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 Publishing Channel(s) where previously purchased or downloaded applications are stored on behalf of users, or (c) 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 APPTUTTi maintain on any portion of the Publishing Channel(s) (including, without limitation, the part of the Publishing Channel(s) where previously purchased or downloaded applications are stored on behalf of users) any Product that you have removed from the Publishing Channel(s) and provided written notice to APPTUTTi 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 the Publishing Channel(s) pursuant to clauses (i), (ii), (iii) or (iv) of this Section “Product Takedowns”, and an end user purchased such Product within a year before the date of takedown, at APPTUTTi'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.
APPTUTTi Takedowns. While APPTUTTi does not undertake an obligation to monitor the Products or their content, if APPTUTTi 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; (c) is pornographic, obscene or otherwise violates APPTUTTi's hosting policies or other terms of service as may be updated by APPTUTTi from time to time at its sole discretion; (d) is being distributed by you improperly; (e) may create liability for APPTUTTi or Authorized Operators; (f) is deemed by APPTUTTi to have a virus or is deemed to be malware, spyware or have an adverse impact on APPTUTTi's or an Authorized Operator's network; (g) violates the terms of this Agreement or the Partner Program Policies for Partners; or (h) the display of the Product is impacting the integrity of APPTUTTi servers (i.e. users are unable to access such content or otherwise experience difficulty), APPTUTTi may remove the Product from the Publishing Channel(s) or reclassify the Product at its sole discretion. APPTUTTi reserves the right to suspend and/or bar any Partner from the Publishing Channel(s) at its sole discretion. If your Product contains elements that could cause serious harm to user devices or data, APPTUTTi may at its discretion disable the Product or remove it from devices on which it has been installed. APPTUTTi 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 Publishing Channel(s) or the Android platform.
APPTUTTi enters into distribution agreements with device manufacturers and Authorized Operators to place the Publishing Channel(s) software client application for the Publishing Channel(s) on Devices. These distribution agreements may require the involuntary removal of Products in violation of the Device Manufacturer's or Authorized Operator's terms of service. In the event that your Product is involuntarily removed because it is defective, malicious, infringes the 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 has purchased such Product within a year before the date of the removal: (i) you must refund to APPTUTTi all amounts received, plus any associated fees (i.e. chargebacks and payment transaction fees) and (ii) APPTUTTi may, at its sole discretion, withhold from your future sales the amount in sub-section (i) above.
Your Partner Credentials
You agree that you are responsible for maintaining the confidentiality of any Partner credentials that APPTUTTi may issue to you or which you may choose yourself and that you will be solely responsible for all Products that are developed under your Partner credentials. APPTUTTi may limit the number of Partner Accounts issued to you or to the company or organization for which you work.
Privacy and Information
In order to continually innovate and improve the Publishing Channel(s), APPTUTTi may collect certain usage statistics from the Publishing Channel(s) and Devices, including but not limited to, information on how the Publishing Channel(s) and Devices are being used.
The data collected is examined in the aggregate to improve the Publishing Channel(s) for users and Partners and is maintained in accordance with APPTUTTi's Privacy Policy. To ensure the improvement of Products, limited aggregate data may be available to you upon written request.
Terminating this Agreement
This Agreement will continue to apply until terminated by either you or APPTUTTi as set out below.
If you want to terminate this Agreement, you must provide APPTUTTi with three (3) months' prior written notice (unless this Agreement is terminated under Section “Changes to the Agreement”) and cease your use of any relevant Partner credentials.
APPTUTTi may at any time, terminate this Agreement with you if:
(A) you have breached any provision of this Agreement or
(B) APPTUTTi is required to do so by law or
(C) you cease being an Authorized Partner
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE PUBLISHING CHANNEL(S) IS AT YOUR SOLE RISK AND THAT THE PUBLISHING CHANNEL(S) IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE PUBLISHING CHANNEL(S) AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PUBLISHING CHANNEL(S) IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. APPTUTTi 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 FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT APPTUTTi, 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 APPTUTTi OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
Indemnification
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless APPTUTTi, its subsidiaries or affiliates and their respective directors, officers, employees and agents, and Authorized Operators from and against any and all third-party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable solicitor's fees) arising out of or accruing from (a) your use of the Publishing Channel(s) in violation of this Agreement, and (b) your Product that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the applicable Billing Plug-Ins (which may include APPTUTTi and/or third parties) and the Billing Plug-Ins' subsidiaries or affiliates, directors, officers, employees and agents from and against any and all third-party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable solicitor's fees) arising out of or accruing from taxes related to Your distribution of Products distributed via the Publishing Channel(s).
Changes to the Agreement
APPTUTTi may make changes to this Agreement at any time by sending the Partner notice by email describing the modifications made. APPTUTTi will also post a notification on this page and/or on the Partner Resources Portal describing the modifications made. You should look at the Agreement, and check for notice of any changes, regularly. Changes will not be retroactive. They will become effective, and will be deemed accepted by Partner, (a) immediately for those who become Partners after the notification is posted, or (b) for pre-existing Partners, on the date specified in the notice or on the date the changes are posted. If you do not agree with the modifications to the Agreement, you must terminate your use of the Publishing Channel(s), which will be your sole and exclusive remedy. You agree that your continued use of the Publishing Channel(s) constitutes your agreement to the modified terms of this Agreement.
General Legal Terms
This Agreement constitutes the whole legal agreement between you and APPTUTTi and governs your use of the Publishing Channel(s), and completely replaces any prior agreements between you and APPTUTTi in relation to the Publishing Channel(s).
You agree that if APPTUTTi does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which APPTUTTi has the benefit of under any applicable law), this will not be taken to be a formal waiver of APPTUTTi's rights and that those rights or remedies will still be available to APPTUTTi.
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.
You acknowledge and agree that each member of the group of companies of which APPTUTTi 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. The rights granted in this Agreement may not be assigned or transferred by either you or APPTUTTi without the prior written approval of the other party. Neither you nor APPTUTTi shall be permitted to delegate the responsibilities or obligations under this Agreement without the prior written approval of the other party.
All claims arising out of or relating to this Agreement or your relationship with APPTUTTi under this Agreement, shall be governed by the law of the Hong Kong Special Administrative Region of the People’s Republic of China. You and APPTUTTi further agree to submit to the exclusive jurisdiction of the Hong Kong Court to resolve any legal matter arising from, or relating to this Agreement or your relationship with APPTUTTi under this Agreement, except that you agree that APPTUTTi shall be allowed to apply for injunctive relief in any jurisdiction.
The obligations in Sections “License Grants”, “Brand Features and Publicity” (solely as necessary to permit APPTUTTi to effectuate Section “Reinstalls”), “Product Takedowns”, “DISCLAIMER OF WARRANTIES”, “LIMITATION OF LIABILITY”, “Indemnification” and “General Legal Terms” will survive any expiration or termination of this Agreement.