This License Agreement ("Agreement") is a legally binding agreement between you, the developer, ("You") and Smartball International, LLC ("Smartball"). This Agreement sets forth the terms and conditions applicable to Smartball distribution of any of the software applications and related documentation that You provide ("Applications") to Smartball and desire for Smartball to distribute through Smartball D2C Sites and/or Additional Distribution Channels (collectively, the "Smartball Sites"). "Smartball D2C Sites" means any site owned by Smartball or any of its subsidiaries, which may include but is not limited to blackberrysoftware.net, phonestage.com, wm6software.net, wm7.net, wm7software.com, wm8software.com, wm6devices.com, veryphony.com. "Additional Distribution Channels" means any site (other than Smartball D2C Sites) for which Smartball provides content, performs billing, and/or manages the user experience.
1. License Grant.
1.1 License. You hereby grant to Smartball an assignable, non‑exclusive, license to (i) copy, reproduce, display, and sell all Applications as provided by You, via the Smartball Sites; (ii) exploit, use, distribute, transmit, sublicense, transfer and assign an unlimited number of copies of all Applications to end users, in object code format only via the Smartball Sites; (iii) copy, publicly display, publicly perform, and otherwise use the Applications for demonstration purposes in connection with the marketing and sale and distribution of the Applications; and (iv) use any trademarks used by You in connection with the Applications solely in connection with the marketing, sale and distribution of the Applications through the Smartball Sites. With respect to each Application, the foregoing license shall commence on the date You provide the Application to Smartball and will terminate on the earlier of (a) the date the Application is removed from the Smartball Site(s), or (b) the date of termination of this Agreement. All rights in the Applications not granted in this Agreement are hereby reserved by You.
1.2 License Restrictions. Except to the extent permitted by this Agreement or by applicable law, Smartball agrees not to (i) decompile, reverse engineer, disassemble or modify the Applications; or (ii) remove, efface or obscure any copyright or other proprietary notices or legends from the Applications. Notwithstanding the foregoing, Smartball shall have the right to modify any documentation that accompanies an Application to conform such documentation to Smartball's posted terms of submission.
1.3 Smartball Property and Rights. You hereby acknowledge and agree that nothing in this Agreement grants to you a right or license in any patents, copyrights, trade secrets, trademarks, logos or other property or rights of Smartball.
2. Removal of Applications from the Smartball Sites.
2.1 Removal Request. You may request, in writing, the removal of an Application(s) from the Smartball Sites. Any such request shall be deemed a request to remove such Application(s) from all Smartball Sites.
2.2 Removal by Smartball. Smartball may at any time, at its sole discretion and for any reason, remove an Application(s) from any or all Smartball Sites.
2.3 End User's Rights Upon Removal. Although any removal of any Application(s) as provided herein will terminate this Agreement with respect to the Application(s), you acknowledge and agree that the removal of an Application(s) by Smartball from the Smartball Sites will not terminate an end user's rights or licenses to continue to use such Application(s) if the Application(s) was downloaded by the end user prior to removal.
3. Pricing and Payments.
3.1 For each purchase of an Application hereunder, Smartball shall pay You a percentage of the Net Receipts, based on the Revenue Exhibits (which are incorporated herein by reference), and Smartball will retain the balance of the Net Receipts. "Net Receipts" means all amounts Smartball receives from a sale of an Application hereunder, less (i) applicable sales, use, value-added or other taxes, and (ii) transactions costs, including but not limited to credit card fees, network charges, Paypal fees and other direct costs Smartball incurs in connection with the sale transaction. Except as otherwise noticed in a Revenue Exhibit, Smartball shall pay Your percentage of Net Receipts in US dollars and from Smartball's US offices. IF REQUIRED BY APPLICABLE LAWS AND REGULATIONS, SMARTBALL MUST WITHHOLD TAXES FROM PAYMENTS TO YOU.
3.2 Smartball shall pay You at the end of each calendar month for all amounts owed to You with respect to Application sales during the previous calendar month, less credits for returns and chargebacks as described below. Notwithstanding the foregoing and unless otherwise provided in a Revenue Exhibit, if the total amount due to You is less than one hundred U.S. dollars ($100.00), Smartball shall have the right to withhold payment until the earlier of (i) the next payment date on which the amount owed to You equals or exceeds one hundred U.S. dollars ($100.00), or (ii) six (6) months from the original payment due date.
3.3 At Smartball's discretion, payment may be by means of check or electronic payment methods. If You request a payment method other than the payment method chosen by Smartball, Smartball reserves the right to deduct its processing and delivery costs from the amount of the payment.
3.4 If Smartball issues a refund from the sale of an Application, or any amounts are charged back to Smartball as a result of a disputed credit card charge, after payment has been made to You, then on the next payment to You, Smartball shall deduct all amounts paid to You related to such refunds or chargebacks.
3.5 The regular list price that You set for all Applications that You submit shall not exceed Your list price (including discounts that You offer) that You offer through any other sales channel. The percentage of Net Receipts that Smartball retains shall be at least as favorable as any commission percentage that You offer to any other sales channel. Smartball shall also have the right to receive notice of and participate in any promotions, special pricing, rebates, co-op advertising, market development funds, or other programs to the same extent that You offer such opportunities to other resellers.
3.6 In connection with limited time offers and promotions by Smartball or its authorized sales agents, Smartball may discount any or all Applications up to 25% off of the regular sales price.
4. Limitation of Obligations. Smartball is under no obligation under this Agreement to upload or market any Applications submitted to the Smartball Sites.
5. Service Level Agreement. You agree to comply with the applicable performance obligations set forth in the service level agreement posted on the sites on which You have agreed to have Applications offered ("Service Level Agreement"). The terms of the Service Level Agreement are incorporated herein by reference. In the event of any conflicts between the terms of this Agreement and the Service Level Agreement, the terms of the Service Level Agreement shall control.
6. Representations and Warranties.
6.1 No Malware. You represent and warrant to Smartball that each Application, as submitted, will be free from code that: (i) might disrupt, disable, harm or otherwise impede the operation of any software, firmware, hardware, wireless communications device, computer system or network; (ii) would enable You or anyone else to access the Application for any reason unless permitted by this Agreement; and/or (iii) would enable the misappropriation of private information. Smartball may pursue any rights in law or at equity to remedy any harm caused by any Application that violates this Section 6.1 (No Malware).
6.2 Application Representation and Warranty. You represent and warrant to Smartball that, for as long as an Application remains on the Smartball Sites,
(i) the Application will perform in accordance with applicable documentation and standards;
(ii) You have all necessary rights to grant the licenses provided hereunder, and neither Smartball's exercise of its license nor the Application will infringe or otherwise violate any third party rights including but not limited to copyrights, trademarks, patents, or other intellectual property rights; and
(iii) the Application does not and will not contain any material that is unlawful, harmful, threatening, defamatory, obscene, pornographic, harassing, private, or racially, ethically or otherwise objectionable, facilitates illegal activity, promotes violence, discrimination, or illegal activities, or incorporates any materials that infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, NEITHER YOU NOR SMARTBALL MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.1 Indemnification. You hereby agree to defend, indemnify and hold harmless Smartball and all end users (each an "Indemnified Party") against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, whether under a theory of negligence, strict liability, contract or otherwise, incurred or to be incurred by an Indemnified Party, including, but not limited to, reasonable attorneys' fees, arising out of, resulting from or related to any alleged breach of Your obligations under this Agreement. Smartball agrees to provide You with written notice of any claim subject to indemnification, allowing You to have sole control of the defense of such claim and any resulting disposition or settlement of such claim; provided, however, that Smartball may participate in the defense of a claim at its own expense. Any disposition or settlement of a claim that imposes any liability on or affects the rights of Smartball will require the prior written consent of Smartball.
7.2 Exceptions. You will have no liability under this Section 7 (Indemnification) for any claim or action where such claim or action would have been avoided but for modifications to an Application, or any portion thereof, made by Smartball or an end user in violation of this Agreement.
8. Liability Limitations.
8.1 No Consequential Damages. IN NO EVENT SHALL SMARTBALL BE LIABLE IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR STATUTORY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUES, BUSINESS OR PROFITS. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF WHETHER SMARTBALL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limits on Liability. IN NO EVENT SHALL SMARTBALL'S TOTAL, CUMULATIVE LIABILITY REGARDING ANY AND ALL CLAIMS AND CAUSES OF ACTION, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS RECEIVED BY YOU FOR THE APPLICATIONS DISTRIBUTED BY SMARTBALL TO END USERS.
8.3 Other. THE LIMITATIONS SET FORTH IN THIS SECTION 8 (LIABILITY LIMITATIONS) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE AND REGULATION, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION 8 (LIABILITY LIMITATIONS) ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. Term and Termination.
9.1 Term. This Agreement will become effective upon Your receipt of notice from Smartball of Smartball's approval of Your application to the Smartball developer program and shall continue in full force and effect until terminated as provided herein.
9.2 Termination. Either party may terminate this Agreement for any reason or for no reason by delivery of written notice to the other party at least thirty (30) days prior to the effective date of termination, which must occur on the last day of a calendar month. Smartball may terminate this Agreement with respect to any or all Applications, with or without cause, by removing the Applications from the Smartball Sites. Upon termination of this Agreement, Smartball agrees to cease permitting end users, or any other persons, to download the subject Applications. You acknowledge and agree that the termination of this Agreement with respect to an Application does not terminate the rights or licenses of an end user to continue to use the Application if the Application was downloaded by the end user prior to termination. Smartball shall have the right to permit end users to download the Application(s) if such end users have ordered the Application prior to the effective date of termination.
9.3 Survival. Upon termination of this Agreement, Sections 2.3 (End User's Rights), 7 (Indemnification), 8 (Liability Limitations), 9 (Term and Termination), and 10 (General) will survive.
10.1 Linking. To that extent that You include any links or references to Your web site or those of Your other resellers in the Application, You shall also link or reference Smartball in a manner comparable in prominence, placement, and substance to the links or references to You or You other resellers.
10.3 Support and Maintenance. You shall be solely responsible for the content, quality and performance of the Application(s), and for any warranty, support, maintenance or other obligations related to the Application(s).
10.4 Conflicting Terms. In the event that any provision of this Agreement conflicts with the Terms of Submission, the Terms of Submission shall control.
10.5 Amendment. Smartball may amend this Agreement by: (i) posting the revised Agreement on the Smartball Sites and delivering notice to You of the new Agreement, (ii) delivering a copy of the new Agreement, either in electronic or paper form, to You, or (iii) any other means reasonably calculated to notify You of the revised terms. You may reject the revised terms by making a written request to have all Applications removed from the Smartball Sites within fourteen (14) days of Smartball's delivery of the revised terms. If You do not make such a request within that time period, then the revised terms shall be binding.
10.6 Publicity and Confidentiality. Except as provided herein, You may not issue any marketing or other communications intended for public disclosure, including, without limitation, press releases, advertisements and websites, that reference Smartball or use the Smartball logo without the prior written consent of Smartball.
10.7 Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired, and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.
10.8 Waiver. The failure by either party to require the performance of the other party under any provision of this Agreement will not affect the right of such party to require performance under said provision at any time thereafter. Nor will waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.
10.9 Construction. The headings and captions of this Agreement are inserted only for convenience and identification and are in no way intended to define, limit or expand the scope and/or intent of this Agreement.
10.10 Relationship of Parties. You and Smartball are independent contractors under this Agreement, and nothing herein shall establish any relationship of partnership, joint venture, employment, franchise or agency between you and Smartball. Neither you nor Smartball shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
10.11 Assignment. You may not assign this Agreement in whole or in part without the prior written consent of Smartball. This Agreement will bind and inure to the benefit of the respective successors and permitted assigns of Smartball.
10.12 Compliance with Laws. Both parties agree to comply with all applicable laws, rules and regulations in connection with their activities under this Agreement.
10.13 Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of ILLINOIS, without regard to its conflict of law principles. The United Nations Convention on Contracts for Sale of International Goods does not apply to this Agreement. Any claim or controversy arising out of or relating to this Agreement will be settled by confidential binding in ILLINOIS in accordance with the Commercial Arbitration Rules of the American Arbitration Association (including, if You are not a United States resident, the Supplementary Procedures for International Commercial Arbitration. The arbitration shall occur before a single, neutral arbitrator. The decision of the arbitrator shall be enforceable in the Federal District Court for the district where the arbitration is held. Notwithstanding the foregoing, either party may seek from a court any provisional remedy necessary to protect intellectual property rights pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. The prevailing party shall be entitled to an award of all costs of the arbitration including reasonable attorneys' fees and expenses.
10.14 Notices. All notices required by this Agreement must be in writing and delivered, via e-mail, United States mail (postage prepaid), courier or facsimile to the other party. You are responsible for ensuring that Smartball has a current and valid email address for You. Smartball shall not be responsible for Your failure to receive any notices delivered to any invalid or discontinued email address, and such notices shall be deemed delivered in accordance with this Agreement. Notices shall be deemed delivered on the day that delivery of such notice is initiated by the delivering party.
10.15 Entire Agreement. This Agreement completely and exclusively states the agreement between you and Smartball regarding its subject matter. This Agreement supersedes and replaces all prior or contemporaneous understandings, representations, agreements or other communications between you and Smartball, whether oral or written, regarding its subject matter.
Smartball D2C Sites
For all sales of Applications through the Smartball D2C Sites, Smartball shall pay You 75% of Net Receipts.