Digital River Inc.
This Agreement may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Agreement, and should have your parent or guardian enter into this Agreement on your behalf. By electronically accepting this Agreement, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction.
VENDOR AGREEMENT
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL (“You”) ON THE ONE HAND, AND DIGITAL RIVER, INC. (“DR-Inc”) AND DIGITAL RIVER IRELAND LIMITED (“DR-Ireland”) ON THE OTHER (DR-INC AND DR-IRELAND EITHER INDIVIDUALLY OR COLLECTIVELY AS SET FORTH IN THIS AGREEMENT, “DR”). Please print a copy of this Agreement for Your records.
This Agreement sets out the terms and conditions under which DR is prepared to make Your Applications available to End Users through the DR Commerce Solution on the Panasonic App Store. Before DR will offer copies of Your Applications for sale to End Users through the DR Commerce Solution, You must first agree to the terms and conditions of this Vendor Agreement (the “Agreement”).
Your acceptance of this Agreement constitutes an offer to DR. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS AGREEMENT THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision of notice to You that any of Your Applications have been approved for resale through the DR Commerce Solution portion of the Panasonic App Store shall constitute DR’s acceptance of this Agreement whereupon this Agreement shall form a binding agreement between the parties.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and DR agree as follows:
1. DEFINITIONS
The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where they are defined.
A. “Application” means software programs (or other downloadable content, identified in the Vendor Portal as types of products which are eligible for sale through the DR Commerce Solution) submitted by Vendor, and in relation to the use of which End Users are required to pay fees.
B. “Panasonic App Store” means the Panasonic-owned and constructed portal that supports, among other things, the purchase of Applications through the DR Commerce Solution, which will be accessible by means that include without limitation Panasonic consumer electronics hardware devices.
C. “DR Commerce Solution” means the DR provided functionality through which DR sells Applications to End Users through the Panasonic App Store.
D. “DR Purchase Price” means the purchase price, due to You from DR, for each copy of an Application purchased from You by DR for DR’s resale through the DR Commerce Solution, which shall be calculated as Seventy Percent (70%) of the Suggested Retail Price (less any Taxes reflected in the Suggested Retail Price) for each copy of each Application, and at DR’s sole option net of any currency exchange and cross border transaction fees.
E. “End User” means a person, organization or entity which purchases or wishes to purchase a copy of Your Application through the DR Commerce Solution.
F. “End User Data” means personally identifiable information about an End User (or information that can be used, together with other information or data, to personally identify an End User) provided in connection with a Transaction through the DR Commerce Solution, which may be collected, used or disclosed (in whole or in part) by or on behalf of DR.
G. “EULA” means an end user license agreement between You and an End User for a copy of an Application purchased through the DR Commerce Solution, which an End User is required to enter into as a condition of the End User’s use of an Application.
I. “Panasonic” means Panasonic Corporation of North America and its affiliates, and their respective successors and assigns.
J. “Suggested Retail Price” means the price that You provide through the Vendor Portal as the recommended selling price of a copy of an Application, as may be changed from time to time by You through the Vendor Portal.
K. “Taxes” means any taxes payable by an End User with respect to a Transaction (it does not include any applicable taxes due to You from DR on Your sale of a copy of an Application to DR for resale, which are addressed in Section 4(B) of this Agreement).
L. “Transaction” means the sale of a copy of an Application through the DR Commerce Solution to an End User through a single order.
M. “Vendor Portal” means the online interface provided by Panasonic through which You apply to have copies of Applications sold by DR through the DR Commerce Solution, and through which you will accept this Agreement and provide certain required information regarding the Applications which you desire for DR to sell through the DR Commerce Solution.
2. VENDOR PARTICIPATION REQUIREMENTS
A. DR will not make available copies of Applications through the DR Commerce Solution if You and Your Applications do not meet and follow the following terms and conditions:
(1) Your Application must meet the minimum requirements set out in the guidelines for Applications, as amended from time to time, which may include by way of example and not limitation requirements and restrictions on compatibility with Panasonic consumer electronic hardrware devices, performance requirements, operational requirements, and content or use requirements (the “Panasonic App Store Guidelines”). If any of Your Applications do not meet the Panasonic App Store Guidelines, DR may elect not to offer copies of that Application, or cease sales of copies that Application, through the DR Commerce Solution.
(2) The information You provide to DR through the Vendor Portal in connection with You and Your Applications shall be accurate and truthful, and You shall immediately update such information through the Vendor Portal in the event any such information changes.
(3) End Users must place orders themselves through the DR Commerce Solution. You are not permitted to place orders on behalf of End Users, nor to authorize anyone to place orders on an End User’s behalf.
(4) You will provide DR with all necessary product information through the Vendor Portal so that End Users do not need to contact You for additional information prior to a sale by DR of a copy of an Application.
(5) You shall provide a Suggested Retail Price through the Vendor Portal for copies of each of the Applications which You wish to make available through the DR Commerce Solution. The Suggested Retail Price may only be provided to DR in up to the number of currencies and only in the currencies and in the manner indicated in the Vendor Portal from time to time. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement or in the Vendor Portal, while You may provide Suggested Retail Prices for copies of Your Applications, DR is solely responsible for setting the price at which copies of Your Application will be sold by DR through the DR Commerce Solution, which may reflect Your Suggested Retail Price at DR’s discretion.
(6) You will not submit through the Vendor Portal any products other than Applications (such as but not limited to products which are fulfilled physically), unless otherwise agreed to in writing by You and DR.
If DR determines at any time that You or any of Your Applications do not meet or follow any or all of the provisions of this Agreement, or that You are otherwise in breach of any provision of this Agreement, DR may immediately suspend selling copies of Your Applications until such noncompliance and/or breach is remedied, and/or terminate this Agreement for uncured breach in accordance with the terms of Section 7(A) of this Agreement.
3. GENERAL TERMS OF THIS AGREEMENT
A. Submitting Applications; Approval Process. You will submit to DR, through the Vendor Portal, each Application You would like DR to make available through the DR Commerce Solution, together with such information as is requested by DR or on DR’s behalf by Panasonic, by means of the Vendor Portal or otherwise, in connection with such Application (including by way of example and not limitation, the name of the Application, a description of the Application, compatibility and resource requirements for the Application, a copy of the executable Application for testing, and the Suggested Retail Price of the Application). Your submission of an Application through the Vendor Portal constitutes Your request for DR to sell copies of such Application through the DR Commerce Solution. DR and Panasonic shall have the right to review and test such Application to ensure conformance with the Panasonic App Store Guidelines before offering Your Application for sale through the DR Commerce Solution, but shall have no obligation to do so. You understand and acknowledge that in order for Your Applications to be made available for sale through the DR Commerce Solution through the Panasonic App Store, in addition to this Agreement You must enter into a separate agreement with Panasonic for, among other purposes, the purposes of evaluating and testing Your Applications. The provision of notice to You that Your Application has been approved for resale through the DR Commerce Solution shall constitute approval of Your request for DR to sell copies of such Applications. DR, and/or Panasonic on DR’s behalf, shall notify you if a submitted Application does not meet the Panasonic App Store Guidelines, or if DR has elected not to make available any of Your Applications through the DR Commerce Solution or to not make them available in specific jurisdictions. Notwithstanding the foregoing, You acknowledge that DR may, in DR’s sole discretion with or without advance notice, decline to sell any one or more of Your Applications, at any time, at all, or in specific jurisdictions, and nothing in this Agreement shall constitute DR’s commitment to sell copies of Your Applications or to offer them for sale through the DR Commerce Solution for any particular period of time.
You acknowledge and agree that DR may sell copies of applications and/or other downloadable content provided by others that may be similar to or competitive with Your Applications, and that nothing in this Agreement shall be construed as granting You any exclusivity within the Panasonic App Store with respect to any of Your Applications and/or other downloadable content resold by DR.
B. Non-US Transactions. With respect to the sale of copies of Applications through Transactions with End Users located in certain countries outside of the United States as determined by DR-Inc (the “Non-US Transactions”), DR-Ireland and not DR-Inc will be the seller and merchant of record of such copies of Applications and will be a party to this Agreement solely with respect to its performance of Non-US Transactions, and any references to “DR” in this Agreement in connection with Non-US Transactions shall be construed as references to DR-Ireland and not DR-Inc. DR-Inc and/or DR-Ireland may also utilize any other corporate affiliate of DR-Inc for the sales of copies of Your Applications to End Users located outside of the United States in certain countries as determined by DR-Inc.
C. Legal Relationship; Sales of Copies of Your Applications. As an owner, licensor and/or distributor of Applications, You will provide to DR, through the Vendor Portal, a master copy of Your Application to be made available to End Users through the Commerce Solution. You hereby grant: (a) to DR and Panasonic, the right to make copies of Your Applications for its own internal use and testing purposes, for the purposes of evaluating and ensuring Your Applications comply with the Panasonic App Store Guidelines, and for the purposes of Panasonic’s provision of fulfillment and ancillary services as DR’s fulfillment agent; and (b) to DR, the right (which right with respect to fulfillment may be sublicensed by DR to Panasonic or to another third party fulfillment service provider, at DR’s option) to make a copy of that Application when an order for an Application is placed through the DR Commerce Solution by an End User, which copy DR shall purchase from You and resell to that End User along with the right to use the Application (which right to use is subject to the terms and conditions set out in Your EULA), and DR shall purchase such copy from You for the DR Purchase Price on the terms set forth in this Agreement. You grant to DR a worldwide right to use the materials and information You provide in connection with each such Application to facilitate DR’s sale of copies of each such Application through the DR Commerce Solution and the provision of related services by Panasonic. You further agree to comply with the terms of all agreements entered into between You and Panasonic. DR and/or Panasonic shall have full control over the design, operation, features and functionality (including available End User payment methods), and End User terms and policies applicable to the Panasonic App Store and DR Commerce Solution. Title to a copy of an Application sold through the DR Commerce Solution to an End User shall pass from DR to that End User upon the completion of both: (a) DR’s receipt of payment for that Application; (b) the provision to the End User of access to download the Application.
D. Your EULA. You shall include the EULA under which You wish to license Your Applications within Your Application for the particular jurisdictions in which the Application is to be made available. This EULA shall at minimum, (i) include provisions excluding DR and Panasonic (not necessarily by name, but at least by role, e.g. channel partners and associated service providers) from any liability whatsoever in relation to Your Application, including without limitation in relation to the sale or use of copies thereof, or the performance or non-performance of Your Applications, (ii) shall make DR and Panasonic third party beneficiaries to the EULA with respect to these provision(s), and (iii) shall include an email address (and may include a phone number) through which End Users can obtain support from You as required by Section 3(F) below. Further, the EULA shall also indicate any jurisdictions in which End Users may not use an Application, and shall identify any export restrictions. DR shall not remove, or have removed, any EULA from any Application or copy thereof, and shall state in its terms of sale to the End User, that their right to use the copy of the Application sold to them is subject to the terms and conditions set out in the EULA in Your Application. You agree and acknowledge that any EULA You enter into with an End User is an agreement between You and the End User, and DR shall not be a party to that EULA except in the limited case where DR is in the role of an End User of Your Application. Notwithstanding any provision in Your EULA, You acknowledge and agree that DR shall make it a term of sale to an End User who obtains a copy of Your Application through the DR Commerce Solution that the Application be downloaded, installed and/or used only on a Panasonic consumer electronic hardware device. You shall not include any provision in Your EULA that imposes any obligations on DR or its service providers .
E. End User Data. Because DR is the reseller to End Users of copies of Your Applications, DR is the party with whom the End User is transacting business for each Transaction. As such, the End User is giving his/her/its End User Data to DR. You agree that End User Data obtained in connection with a Transaction shall not be owned by You, and You shall not have any rights to such End User Data. If DR or its service providers provides You with or makes accessible to You any End User Data, You shall only use such End User Data for the purpose for which it was provided to You under this Agreement. With respect to any End User Data provided to You or made accessible to You by DR or its service providers, You agree that You: (a) shall comply with all applicable privacy legislation and, without limiting the generality of the foregoing, handle such End User Data in full compliance with Your privacy policy; (b) shall use best efforts to ensure the confidentiality of such End User Data via encryption or similar means; and (c) shall not use such End User Data to offer any of Your products or services to such End Users or any other party in violation of the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) or other applicable laws, rules or regulations. If You provide End User Data to DR or its service providers, You represent and warrant that You will have obtained any necessary consent from the End User to disclose the End User Data to DR and/or its service providers. Nothing in this Agreement shall restrict You from using for Your lawful business purposes (in compliance with Your privacy policy) any data provided to You directly by an End User in connection with that End User’s registration or use of an Application, provided that in all events You comply with all applicable privacy laws, rules and regulations.
F. Support. You are solely responsible for, and agree to provide, (a) reasonable operational and technical support and assistance to End Users in connection with their installation/un-installation, use, and operation of Your Applications made available through the DR Commerce Solution, and (b) a warranty for Your Application which is at a minimum consistent with the requirements of the laws in the jurisdiction of the End User. You must provide to DR, by means of the Vendor Portal, with, at a minimum, an email address for technical and operational support. Please note that neither DR nor Panasonic will provide software help-desk or other forms of technical support concerning Your Application. DR’s support (which may be provided by Panasonic on DR’s behalf) is limited to assistance to End Users with the use of the DR Commerce Solution.
G. Export. As requested by DR, You agree to provide to DR, through the Vendor Portal or by email to export@digitalriver.com as requested by DR, with current, up-to-date and specific codes and classifications through the Vendor Portal or other related information, under any export control laws applicable to any Application that is made, or that You wish to have made, available through the DR Commerce Solution (including without limitation provision of appropriate Export Control Classification Numbers (“ECCNs”) and license exception codes). The DR Commerce Solution is designed only to accept software that meets, among others, the following criteria: (1) generally available to the public by being sold, without restriction, from stock at retail selling points by electronic transactions; (2) designed for installation by the End User without further substantial support by the supplier; and if applicable (3) the cryptographic functionality cannot be easily changed by the End User. You agree You may not submit Applications that do not meet the above criteria. You are solely responsible for obtaining any government related export, import, use, supply and/or transfer permits (collectively, “Export Permits”) required for any Applications and shall obtain all such Export Permits prior to submitting any such Applications to DR and/or its service providers. In no event shall DR and/or its service providers be required to obtain any Export Permit needed to receive or allow the download of any Application, unless otherwise agreed to in writing by DR. You agree that You will not submit Applications which require a US Government review prior to availability without also submitting at the same time a valid Commodity Classification Tracking System (CCATS) number.
Federal agencies have also banned or regulated trade between U.S. entities and certain organizations, businesses and persons. DR (either directly or through Panasonic on DR’s behalf) retains the right to make its own determination, at its sole discretion, as to whether any proposed sales transaction might put DR and/or its service providers in violation of any applicable laws, rules and regulations which control, regulate, prohibit or otherwise affect the export, import or use of Your Application to or within the country to which the Application will be fulfilled, and may refuse to engage in any such Transactions without prior notice to You.
H. DR’s Trademarks; Publicity. DR’s trademarks, service marks and business names (DR’s “Trademarks”) are owned or licensed solely and exclusively by DR and its licensors. You may not make any press release regarding this Agreement which includes DR’s name, logo, or otherwise refers to DR, or use DR’s name or logo to refer to DR, or use DR’s Trademarks, without DR’s express prior written consent to do so (for the avoidance of doubt, You may issue a press release indicating that Your Application is available through the Panasonic App Store without DR’s consent, provided such press release does not use DR’s name, logo, or DR’s Trademarks, or otherwise refer to DR). Any use by You of DR’s Trademarks shall inure solely to DR’s benefit. You agree, upon DR’s demand, to promptly stop or alter any of Your uses of DR’s Trademarks which DR deems to be improper or which may have the potential to put DR’s Trademark rights at risk.
I. Fulfillment. If necessary in order for DR to reproduce Your Application(s) and deliver same to End Users, You will cooperate with the reasonable requests of DR and Panasonic (who will be providing delivery and ancillary fulfillment services on behalf of DR) in relation to their fulfilling orders for copies of Your Application(s) to End Users.
4. PAYMENTS AND RETURNS
A. Sale of Copies of Applications. For each copy of Your Application that DR sells to an End User, DR will purchase that copy from You for the DR Purchase Price. All amounts which DR owes You for the sale of copies of Your Applications shall be placed in a general in-house account maintained by DR (which for the avoidance of doubt shall not be an account specific to You), and DR will pay You from that account as described below. You will not be entitled to interest on amounts held in DR’s general in?house account while such amounts are in DR’s possession.
B. Taxes. The DR Purchase Price paid to You for sales of copies of Your Applications shall be inclusive of any applicable sales or use, value added and/or other consumption-based taxes (“B2B Taxes”). If there are any B2B Taxes which You are required to collect from DR on Your sale of a copy of an Application to DR, You will be solely responsible for the payment of any and all such applicable B2B Taxes (or Your income derived therefrom) from the DR Purchase Price amounts paid to You by DR. You agree that You shall not have any right to separately invoice DR for B2B Taxes on Your sale of a copy of an Application to DR, except that where law requires a separate invoice of any B2B Taxes, you shall have the right to send any such invoices to DR, marked “paid” as DR’s payment of any amounts in such invoice(s) shall be considered already paid as part of the DR Purchase Price due to You from DR. In the event DR determines that withholding taxes are applicable to any payments due to You from DR, You agree and acknowledge that such payments by DR shall be net of any applicable withholding taxes. You shall provide to DR all data reasonably necessary for DR to support any B2B Taxes included in the purchase price of a copy of an Application. For the avoidance of doubt, under no circumstances shall DR be deemed to be providing tax advice or consulting services to You. You shall be solely responsible for, and shall hold DR harmless from and against, the calculation of B2B Taxes due from DR on Your sale of a copy of an Application to DR, and any failure to collect B2B Taxes from DR on Your sale of a copy of an Application to DR at the time of sale to DR (including without limitation interest and penalties that result from any failure).
C. Returns and Refunds. DR, as the seller and merchant of record for the DR Commerce Solution, is responsible for setting and applying the returns policy applicable to the DR Commerce Solution. If DR, at its option, provides a right of return for Applications made available through the DR Commerce Solution, and DR accepts the return of an Application in accordance with such right of return, You shall also accept the return of that particular copy of the Application, and shall refund the amount paid to You by DR in relation to that Application to DR, at DR’s option, either by paying this sum to DR (either through Your PayPal account or as otherwise agreed by DR) or by way of DR setting off this amount against other monies otherwise owing to You. You further agree and acknowledge that DR will treat any non-fraudulent Chargeback or other non-fraudulent End User-, bank- or payment processor-initiated reversal of a previously completed payment as a validly accepted return and a refund validly provided by DR.
D. Chargebacks, Fraud and Suppressed Orders. A “Chargeback” is another form of refund that happens when PayPal, a credit card processor, or acquiring bank unilaterally revokes a prior transaction, which may be done under the rules of PayPal, the credit card banking system for reasons such as but not limited to fraud or suspected fraud, End User complaint, or other reasons determined at the sole discretion of PayPal, the credit card processors and/or banks. DR makes no promises to You as to whether or how PayPal, credit card processors and/or banks will interpret their rules or rights concerning Chargebacks. You acknowledge that PayPal and credit and debit card transactions through the DR Commerce Solution are ‘non-swiped,’ ‘card?not?present’ Transactions and have no physical signature from an End User, and thus are subject to a higher level of Chargeback activity compared to physical credit card Transactions with wet-ink signatures.
For each Chargeback or other payment reversal in relation to a copy of Your Applications sold through the DR Commerce Solution, You agree to allow DR to offset the amount of such Chargebacks and payment reversals against amounts due to You from DR, or invoice You for such amounts if DR is unable to offset such amounts. (For the avoidance of doubt, DR will be responsible for any chargeback processing fees imposed by a bank or payment processor, but not for the amount charged back.) Further, any sale of a copy of an Application where the fulfillment of that copy of the Application has been made by or on behalf of DR upon receipt of a valid payment authorization but is subsequently rejected or cancelled prior to settlement by DR, the merchant bank or payment processor, will not be treated as a completed sale to an End User by DR for the purposes of calculating payments due to You. This paragraph shall survive the termination or expiration of the Agreement.
E. Payment Method and Frequency. Within thirty (30) calendar days of the end of each calendar month (except as otherwise stated below): (1) DR will make available to You a report which shows each Transaction involving the sale of a copy of Your Application(s) for which DR processed payment during that calendar month and the calculation of the DR Purchase Price for the copy of the Application sold in each such Transaction, and the aggregate amount of DR Purchase Price amounts for that calendar month; and (2) DR will send to You a payment of accrued DR Purchase Price amounts on sales of copies of Your Applications, net of returns, Chargebacks, applicable withholding taxes, and other amounts due to DR under this Agreement (“Due Amounts”). Payments shall be made to You via check or such other payment method offered by DR. DR’s payment obligations to You are subject to the following:
(1) DR may determine to hold back all or a portion of Your Due Amounts if DR has a reasonable basis to believe that it will likely be necessary to cover future refunds, charges against Your account, or other liabilities You may owe to DR. DR may also hold back all or a portion of Your Due Amounts if DR believes that the funds represent fraudulent transactions or involve other kinds of illegal activities. DR will only hold back those amounts which DR determines are reasonable under the circumstances. DR’s statements or other communication from DR will note how much DR is holding back. DR will keep any held back amounts only for a reasonable time as determined in DR’s sole discretion, and will promptly pay to You any remaining held back amounts after that reasonable time has passed. Regardless of any hold back DR may choose to keep, You agree to pay DR, upon demand, for any shortfall owed to DR due to refunds, Chargebacks, fraud, suppressed orders, or other fees for services rendered if they cannot be offset from Your account within ninety (90) calendar days of the date DR first seeks to offset such charges. If DR actually keeps (or sets off) any of the funds DR has held back against amounts due to You, DR will do so in a manner that DR believes fairly reflects Your liability owed to DR, and DR will note the set-off and provide You with an explanation of the set-off. DR shall be entitled to set off, against any holdback funds, any amount needed to reimburse DR for DR’s costs or expenses of defending against any claims against DR related to Your breach of this Agreement, including an amount to pay any attorneys’ fees DR incurs associated with any such claims.
(2) Any and all amounts payable to You under this Agreement shall be paid to You in the currency or currencies indicated in the Vendor Portal from time to time (as of April 2010 the only payment currency available to You is United States Dollars (USD)), and shall be paid into Your PayPal account, or by such other DR authorized payment method as may be made available from time to time.
(3) You may not request that DR make payments of Due Amounts to a third party on Your behalf.
(4) If You do not object in writing to amounts retained by DR within thirty (30) calendar days of a given payment of a Due Amount from which such amounts are retained, or to an invoiced amount by the payment due date specified on the invoice, You shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount. Your dispute as to a portion of any invoice or amount owed shall give You the right to withhold or delay payment of only the disputed amount of such invoice or amount owed, and not the undisputed portion.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Mutual. You and DR each make the following representations, warranties and covenants to the other:
(1) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, including without limitation the right to bind any party it purports to bind to this Agreement.
(2) its execution, delivery and performance of this Agreement do not conflict with any other agreement to which it is a party or by which it is bound.
B. By You. You make the following additional representations, warranties and covenants to DR:
(1) You are the owner or fully authorized licensee of all intellectual property and other proprietary rights to Your Applications submitted through the Vendor Portal, and have all rights necessary to grant the rights granted to DR hereunder and to allow DR to sell copies of Your Application to End Users. DR’s sale of copies of Your Applications to End Users will not violate any laws concerning export over national borders, including laws involving encryption technology.
(2) To the best of Your knowledge, the offer to sell, sale, use, copy, import, storage and/or distribution of Your Applications or copies thereof, by DR, or by third parties on behalf of DR, as contemplated hereunder, will not infringe, violate, or misuse, or constitute a misappropriation of, any third party’s intellectual property or other proprietary rights anywhere in the world.
(3) The Applications You submit through the Vendor Portal, and any content and materials You provided in connection with these Applications, are not subject to licensing or usage fees to You which DR would be required to pay or any third party for which DR may be liable or responsible for payment. Any content and materials You provide through the Vendor Portal or otherwise in connection with Your Applications being made available through the DR Commerce Solution are accurate, and do not violate any applicable laws or regulations concerning advertising claims or other forms of consumer protection laws.
(4) The Applications You submit through the Vendor Portal, including all content within and/or made available directly or indirectly by means of the Applications, is not libelous, does not slander others, does not contain obscene or pornographic material, is not illegal to use and does not otherwise violate the Panasonic App Store Guidelines in effect at the time of submitting each Application. Without limiting the foregoing, the Applications You submit through the Vendor Portal do not contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized or illegal actions on a computer system, or which transmits information or other data from a user’s computer without notice to and the express prior consent of the End User. The Applications You submit through the Vendor Portal are not designed or usable as a tool for processing e-mail for mass mailing (“spamming” tools or the like).
(5) With respect to any promotion by You of Your Applications that are made available through the DR Commerce Solution, You will not display any inaccurate or misleading information concerning Your identity or location, or inaccurate or misleading information concerning the role of DR as the seller and merchant of record to the End User for purchases of copies of Your Applications.
(6) You will not engage in deceptive trade practices, or directly solicit End Users or potential End Users who have not affirmatively consented to receive direct solicitations from You, or otherwise violate any laws, rules or regulations applicable to the sale of copies of Your Application through the DR Commerce Solution to End Users and the conduct of Your business.
(7) You will not use commercial e-mail (solicited or unsolicited) to market Your Application if that use of commercial e-mail violates any applicable laws or regulations regarding the use of commercial e-mail. You will comply with any legal obligations to provide proper labeling and content within Your marketing e?mails, and to provide opt-in or opt-out capabilities to recipients and comply with any such requests. Subject to any approvals required pursuant to Section 3(H) above, any advertising or other marketing materials that mention DR, the Panasonic App Store, or the DR Commerce Solution, or which contain hyperlinks to the DR Commerce Solution or Panasonic App Store, must be in compliance with all laws concerning advertising and marketing for the territories where You deliver those materials. You are responsible for compliance with all of the above, whether You provide the e-mails or advertisements on Your own or use the services of a third party.
(8) You are the owner, licensor and/or distributor of the Applications with all rights necessary to allow DR to purchase copies of the Applications from You for resale.
(9) The Applications are designed for operation and use on Panasonic consumer electronic hardware devices.
C. By DR. DR makes the following additional representations, warranties and covenants to You:
(1) Except to the extent that this prohibition is precluded by law, DR shall not modify any Application without Your express written permission, and may not reverse engineer, disassemble or decompile any Application.
6. DISCLAIMER OF WARRANTIES; INDEMNITY; LIMITATION OF LIABILITY
A. Disclaimer of Warranties. Except as expressly set out herein, DR provides DR’s valued added reseller services to You on an “AS-IS, AS AVAILABLE” basis and makes no promises as to the percentage up-time of the Vendor Portal, Panasonic App Store or DR Commerce Solution, or that the Vendor Portal, Panasonic App Store or DR Commerce Solution will operate completely without error. The Vendor Portal, Panasonic App Store and DR Commerce Solution are subject to change without notice. DR HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE QUALITY OR AVAILABILITY OF THE VENDOR PORTAL, PANASONIC APP STORE OR DR COMMERCE SOLUTION AND ANY OTHER SERVICES PROVIDED BY DR PURSUANT OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON?INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DR DISCLAIMS ANY WARRANTY OR LIABILITY RESULTING FROM OR REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE DR COMMERCE SOLUTION, PANASONIC APP STORE, VENDOR PORTAL, AND/OR DR ADMINISTRATIVE INTERFACE OR ANY INFORMATION ACCESSIBLE THEREON, OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM YOUR USE OF, OR INCLUSION OF YOUR APPLICATIONS ON, THE SAME. DR DOES NOT REPRESENT THAT THE VENDOR PORTAL, DR COMMERCE SOLUTION, PANASONIC APP STORE AND ADMINISTRATIVE INTEFACE ARE FREE OF VIRUSES OR MALICIOUS CONTENT DESPITE ANY EFFORTS BY DR AND ITS SERVICE PROVIDERS TO PREVENT THE INCLUSION OF SUCH CONTENT, AND YOU ACCEPT ALL RISK AND LIABILITY IN CONNECTION WITH YOUR USE OF THE VENDOR PORTAL AND ADMINISTRATIVE INTERFACE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A GUARANTEE, REPRESENTATION OR WARRANTY AS TO THE LEVEL OF SALES OF COPIES OF YOUR APPLICATIONS THAT YOU CAN EXPECT BY ENTERING INTO THIS AGREEMENT.
DR FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS AND OMISSIONS OF ANY AND ALL THIRD PARTIES RELATED TO OR IN CONNECTION WITH THE PROVISION OF THE VENDOR PORTAL, PANASONIC APP STORE OR DR COMMERCE SOLUTION OR THE PURCHASE OF COPIES OF YOUR APPLICATIONS, INCLUDING WITHOUT LIMITATION THE PROVISION OF THE VENDOR PORTAL AND PANASONIC APP STORE AND SERVICES PROVIDED TO DR BY PANASONIC, AND THE USE, SALE OR REDISTRIBUTION OF AN APPLICATION BY AN END USER (WHETHER OR NOT PERMITTED BY ANY APPLICABLE EULA).
EXCEPT FOR ANY OBLIGATIONS DR HAS UNDER SECTION 5(C)(1) OR ITS OBLIGATIONS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1) YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY DR, OR FOR YOUR DISSATISFACTION WITH THE VENDOR PORTAL, PANASONIC APP STORE OR DR COMMERCE SOLUTION OR THE SALE OF COPIES OF YOUR APPLICATIONS PURSUANT TO THIS AGREEMENT, IS FOR YOU TO TERMINATE THIS AGREEMENT.
B. Indemnity. You agree to defend, indemnify, and hold harmless DR and its service providers, their successors and assigns, and their respective officers, directors, employees, representatives, from and against any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys’ fees and costs (collectively, “Losses”) in connection with a claim, action, suit or proceeding made, brought or commenced by a third party other than an affiliate of the indemnified Party (each, a “Claim”), that any such party may incur or suffer, which arise, result from, or relate to: (i) Your breach of any of Your obligations, representations, warranties or covenants made by You hereunder, (ii) the actual or alleged infringement by Your Applications or copies thereof, or other materials provided by You of any third party proprietary or intellectual property rights, or (iii) any liability arising from an End User’s use of Your Applications. The indemnified party will promptly notify You in writing of any Claim and will provide You all disclosable information in its possession (at the indemnified party’s expense) and reasonable assistance (at Your sole expense) as reasonably necessary to evaluate and defend such Claim, and the authority to settle and/or defend such Claim only in accordance with the following sentence. You shall obtain each indemnified party’s express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any Claim if such settlement (a) arises from or is part of any criminal action, suit or proceeding, or (b) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of that indemnified party, or (c) requires any specific performance or non pecuniary remedy by that indemnified party, or (d) requires the actual payment of any amount by that indemnified party. This indemnity shall survive termination of this Agreement.
C. Limitation of Liability. DR SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY LOST PROFITS, DATA, GOODWILL, LOSS OR INTERRUPTION OF BUSINESS, DELAY OF DELIVERY, OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
EXCEPT FOR ANY OBLIGATIONS DR HAS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1)) OR FOR DR’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING A WILLFUL BREACH OF SECTION 5(C)(1)), IF, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DR, OR ITS SERVICE PROVIDERS, IS HELD LIABLE TO YOU FOR ANY DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THIS AGREEMENT, THE SALE OF COPIES OF YOUR APPLICATIONS THROUGH THE DR COMMERCE SOLUTION, OR OTHERWISE FROM OUR RELATIONSHIP, DR’S AGGREGATE AND ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO AND SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
D. Other. THE LIMITATIONS UPON DAMAGES AND CLAIMS, AND DISCLAIMER OF WARRANTIES, SET FORTH IN THIS AGREEMENT FORM A FUNDAMENTAL AND ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN THIS SECTION 6, IN NO EVENT SHALL PANASONIC OR ANY AIRTIME SERVICE PROVIDER HAVE ANY LIABILITY ARISING FROM, RELATING TO, OR RESULTING FROM THIS AGREEMENT.
7. TERM AND TERMINATION
A. Term. This Agreement starts on the date DR acknowledges its acceptance of this Agreement as set forth herein, and will last until either You or DR terminates this Agreement as set forth herein. You may terminate this Agreement with or without cause by providing DR with no less than thirty (30) calendar days prior notice in writing of Your decision to terminate. In the event You are in material breach of this Agreement or have failed to perform any of Your material obligations under this Agreement, and have not cured such breach or failure within three (3) calendar days of being notified by DR of such breach or failure, DR may terminate this Agreement on notice to You without further opportunity to cure. Further, DR may, at any time, terminate this Agreement by delivering to You notice of its decision to do so, if: (a) DR ceases to operate the DR Commerce Solution in connection with the Panasonic App Store; (b) DR is required to do so by law; (c) You, or if You have licensed the distribution rights for the Applications, the licensor(s) for those Applications, no longer has a software development agreement with Panasonic in good standing, that provides for the use of Panasonic’s Application development toolkit and associated APIs; or (d) You are not in good standing with DR or Panasonic (other than due to a breach of this Agreement in which case the cure period set forth above shall apply).
B. Termination. Upon termination of this Agreement: (a) You will immediately cease any use of DR’s name, logos or Trademarks, and remove any approved hyperlinks to the DR Commerce Solution that deal with the sale of copies of Your Application; (b) DR will promptly halt any sale of copies of Your Application(s) through the DR Commerce Solution; (c) DR will continue to make payments to You of amounts due to You under this Agreement, on the regular pay cycle dates, until the time that Your account has reached a zero balance (DR’s hold back rights as described in Section 4(E)(1) above, and Your obligation to pay DR for any shortfall in Your account, shall survive the termination of the Agreement); and (d) You will continue to be responsible for any liability that might arise out of Chargebacks, any infringement of intellectual property rights, any violation of laws, rules or regulations that may have occurred as a result of copies of Your Applications being made available via the DR Commerce Solution, and any breach by You of the terms of this Agreement.
C. Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement, which provisions shall include without limitation sections 1, 2, 3(A), 3(D), 3(E), 3(F), 3(G), 4, 5, 6, 7(B), 7(C), and 8.
8. MISCELLANEOUS
A. Entire Agreement; Assignment. This Agreement and the Panasonic App Store Guidelines sets forth the entire understanding between You and DR with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. However, You may not assign this Agreement, or any of Your rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without DR’s express prior written permission to do so, and any attempt to assign in violation of the preceding shall be null and void and such attempt shall constitute an incurable material breach of this Agreement.
B. Changes to this Agreement. As this agreement has no specified term, and business circumstances and legal requirements may change from time to time, DR reserves the right to revise the terms of this Agreement. In the event of any such revisions that are material in nature, DR will provide You with notice of such revised version in accordance with section 8(F), otherwise DR may provide notice by posting the revised version of the Agreement on the Vendor Portal. Any revisions to the Agreement which are required in order to comply with legal requirements, or changes in legal requirements, will immediately become effective as of the date DR provides notice to You. All other revisions to the Agreement will become effective thirty (30) calendar days after DR provides notice to You of such revisions. Except as set forth above, no conditions other than those set forth in this Agreement, or amendments or modifications to this Agreement, shall be binding on DR unless DR expressly agrees to such amendments or modifications in a writing signed by an authorized representative of DR.
C. Relationship of the Parties. You and DR are independent contractors of, and not an employee, agent or authorized representative of, the other. No agency, partnership, joint venture, employer-employee relationship, or other business combination between You and DR is intended or created by this Agreement. Neither party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. Without limiting the foregoing, neither party shall make any representations or warranties to third parties on behalf of the other party. Panasonic and its affiliates shall be considered third party beneficiaries of sections 3(A), 3(C), 3(D), and 6 of this Agreement and shall be entitled to enforce these sections with respect to Panasonic and its affiliates only. There are no other third-party beneficiaries under this Agreement.
D. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of the State of Minnesota, United States of America, without respect to or application of its conflicts-of-laws provisions. The parties specifically disclaim application of : (i) the United Nations Convention on the International Sale of Goods; and (ii) of Article 2 of the Uniform Commercial Code as codified. If there are any disputes or conflicts related to or arising out of this Agreement, You and DR shall use reasonable means to resolve the conflict prior to starting any lawsuits or other litigation, including negotiation between management personnel capable of resolving the conflicts. However, in the event either You or DR should start any litigation arising out of this Agreement, You expressly agree that the litigation will take place exclusively in the state or federal courts located in Hennepin County, Minnesota, United States of America, and You expressly agree that any such court has personal jurisdiction over You. You waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.
E. Waiver; Severability. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by DR to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity of non-enforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provisions were omitted, and the invalid or non-enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-enforceable provision.
F. Notices. If You are obligated under this Agreement to tell DR something or You wish to give DR legal notice of any kind, You must do so in writing and deliver it by certified mail, postage pre-paid and return receipt requested or by nationally recognized overnight courier which provides a written proof of delivery, to the following address: Digital River, Inc., Attn: General Counsel, 9625 West 76th Street, Eden Prairie, MN 55344. Such notice shall be effective upon DR’s receipt of same. If DR is obligated under this Agreement to tell You something or DR wishes to give You legal notice of any kind, DR may do so by use of any of the addresses You provide through the Vendor Portal, including postal mail or e-mail, and such notice shall be deemed to be sufficiently delivered to You. If any such notice fails to reach You because You gave DR inaccurate address information, DR’s notice shall nonetheless be deemed to have been validly delivered to You on the date such notice was sent by DR.
G. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exigé que cet accord et tous les documents connexes soient rédigés en anglais. The original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et contrôlant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le bénéfice des parties et ne sera pas contrôlant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent être dans la langue Anglaise et touts les interprétations et les applications de ces communications sera dans la langue Anglaise.
H. Other. DR shall not be liable for any inability to perform its obligations under this Agreement if it is unable to do so as a result of any reasons or conditions beyond DR’s reasonable control. No provisions in any of Your purchase orders or other business forms (including by way of example but not limitation, any statement of work or invoice) shall modify, supersede or otherwise alter the terms of this Agreement. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations, and DR will be responsible for the acts and omissions of such subcontractors and agents. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of this Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
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