Welcome, and thank you for your interest in Origo Networks, Inc. ("Origo Networks") and AppDirect.com, an Internet-based marketplace owned and operated by Origo Networks that enables end users to browse, purchase, and manage subscriptions to third-party "software as a service" applications, and to access applications purchased in this manner through a single sign-on system (the "AppDirect Marketplace"). Origo Networks also makes available syndicated versions of the AppDirect Marketplace white labeled on behalf of third-party resellers (each such third party, a "Syndication Partner," and each such white-labeled instance, a "Syndicated Marketplace"). All Syndicated Marketplaces, together with the AppDirect Marketplace, are referred to herein as the "Marketplace."
THE FOLLOWING DEVELOPER TERMS OF SERVICE (the "Agreement") CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN ORIGO NETWORKS AND YOU, AN INDEPENDENT APPLICATION DEVELOPER ("Developer" or "You"), AND GOVERNS THE TERMS UNDER WHICH YOU MAY SUBMIT YOUR APPLICATION TO ORIGO NETWORKS TO BE CONSIDERED FOR INCLUSION ON THE MARKETPLACE, AND THE TERMS ON WHICH YOUR APPLICATION MAY, IF ACCEPTED, BE INCLUDED ON THE MARKETPLACE. IF YOU ARE CREATING AN ACCOUNT ON BEHALF OF A COMPANY, REFERENCES TO "YOU" AND "DEVELOPER" HEREIN REFER TO THAT ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. BY CLICKING "I AGREE," SUBMITTING THE APPLICATION FORM, CREATING AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THIS SITE TO MAKE YOUR APPLICATION AVAILABLE THROUGH THE MARKETPLACE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS.
- "API" means an application program interface, which interface exposes certain features, inputs, or outputs of a program available to external applications.
- "Application" means each software as a service application owned and operated by Developer that has been submitted to Origo Networks for consideration for inclusion in the Marketplace, as identified by Developer through the Developer Portal.
- "Application Net Revenue" means the Developer's share of Application Gross Revenue, after deduction of the Distribution Fee.
- "Application Gross Revenue" means amounts actually paid by End Users for purchases through the Marketplace of any rights to access and use any Application (including without limitation, basic subscriptions, additional seats, plan and feature upgrades, and any other use-based charges incurred in connection with use of the Applications), less any applicable deductions for fraud, returns, charge-backs, and bad debt. Application Gross Revenue excludes amounts collected by Developer from End Users for value added services such as integration and consulting services, and amounts collected from advertisers in respect of impressions, clicks, and actions taken by End Users.
- "Developer Portal" means a password protected portal that enables Developer to setup Application profiles and distribution options, manage customers and bills.
- "Distribution Fee" means the amount of Application Gross Revenue retained by Origo Networks and its Syndication Partners, as established in each distribution option selected by Developer through the Developer Portal.
- "End User" means an individual user of the Marketplace, or any portion thereof.
- "Intellectual Property Rights" means patents, copyrights, trademark rights, and analogous rights in works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, including applications and registrations for the foregoing, trade secret rights, and all other intellectual property or proprietary rights (whether registered or not) and arising under the laws of any jurisdiction.
- "Single Sign-On" means the ability of an End User to access third party applications purchased through the Marketplace using a single set of Marketplace access credentials.
- "Usage Data" means data generated in connection with End User use of the Marketplace, including transactional and Single Sign-On data generated in connection with End User access and use of Applications.
2. ACCOUNT SETUP, INTEGRATION, AND LICENSE
- Developer Portal Account Setup. To submit an Application for consideration, you must create an account on the Developer Portal, and choose a password. You will remain solely liable for maintaining the confidentiality of your password, and for any and all activity on the Developer Portal taking place under its password. Developer shall keep any and all required profile information accurate and up to date, including without limitation any payment information.
Application Integration. Following submission of your Application, You agree to work with Origo Networks on an ongoing basis to enable and enhance the integration of each Application into the Marketplace for the purposes of making it available to End Users through the Marketplace, as follows:
a. Single Sign-On. Developer shall be responsible for implementing and maintaining support for Single Sign-On access to each Application, which Origo currently enables through Open ID (http://openid.net).
b. Origo Networks API Set. Developer will integrate the Application with the Marketplace through the APIs documented in the AppDirect Developer Center currently located at devcenter.appdirect.com (the "Origo Networks APIs"), including without limitation APIs for billing, user management, provisioning, upgrade, downgrade, import, sync, and other features for each Application, and to maintain and enhance them throughout the Term.
c. Developer APIs. Upon mutual agreement in writing, Origo Networks may choose to integrate with Developer's existing APIs to the Application.
- Application Hosting. The Application is a "software as a service" application, and is not reproduced or distributed to End Users. Developer is solely responsible for hosting the Application and all associated network connectivity, maintenance, backup, and other hardware, software, and services required to provide the Application to End Users, and shall bear all costs and expenses associated therewith.
- No Other Connections. Developer shall not use any robot, spider, or other automated process to scrape, crawl, or index the Marketplace, other than by integrating the Application with the Marketplace through documented APIs expressly made available by Origo Networks.
- Syndication of Applications. Upon successful completion of integration to Origo Networks' satisfaction, Applications will be eligible for inclusion in the Marketplace, at the sole discretion of Origo Networks and its Syndication Partners. Notwithstanding the foregoing, Syndication Partners may have additional requirements for eligibility for inclusion in Syndicated Marketplaces, including without limitations on revenue share percentages and minimum terms for inclusion in Application Terms (as defined below).
- Third Party Syndication Confirmation. You may request confirmation of whether a particular Syndication Partner plans to include an Application in its Syndicated Marketplace, in which case Origo Networks will use reasonable efforts to procure confirmation from the Syndication Partner. However, such a confirmation is not a representation or warranty that the applicable Syndication Partner will ultimately include the Application on the Syndicated Marketplace.
- Developer Content. For each Application submitted to the Marketplace, Developer shall upload and submit certain promotional and documentation content to its account on the Developer Portal (the "Developer Content") for use by Origo Networks in connection with creating a profile page for the purpose of identifying, indexing, marketing, promoting, and supporting the Applications on the Marketplace. Developer Content may include, but is not limited to, marketing and promotional materials, logos, diagrams, specifications, FAQs, documentation, end user terms, descriptions of Applications and features, and support materials, and shall at all times be true, correct, complete, accurate, and not misleading.
- No Obligation to Publish; Compliance with Program Policies. Applications and Developer Content may not contain infringing material, and must comply with the AppDirect Program Policies (available at http://devcenter.appdirect.com/program-policies), as modified from time to time at Origo Networks' sole discretion. Origo Networks is under no obligation to publish any Application or Developer Content, and may, at its discretion, remove any Application or Developer Content at any time from the Marketplace or any part thereof, and for any reason, including without limitation for failure to comply with AppDirect Program Policies.
- No Direct Marketing. Developer may not market, promote, advertise, sell, offer to sell, or otherwise solicit sales to any End User of any products or services that are not offered through the Marketplace; provided, however, that Developer may market value-added services related to the Application directly to End Users of that Application.
Licenses. In order to facilitate the inclusion of the Application on the Marketplace, each party needs to grant the other certain rights, as follows:
a. Developer. Developer hereby grants Origo Networks worldwide, nonexclusive, fully paid up, royalty free, rights and licenses to (i) market and promote in any medium, and to distribute and sell subscriptions to the Applications through the Marketplace; and (ii) reproduce, distribute, display publicly, perform publicly, transmit, modify, create derivative works of, and otherwise utilize the Developer Content and Developer's trademarks and logos in connection with the marketing, promotion, and sale of the Applications and the Marketplace, it being understood that any and all goodwill generated through the use of Developer's trademarks inures solely to the benefit of Developer.
b. Origo Networks. Origo Networks hereby grants to Developer permission during the Term to access and use the Origo Networks APIs and related documentation made available by Origo Networks through the Developer Center, solely for the purpose of integrating the Applications into the Marketplace for access and use by End Users;
3. END USER TERMS AND SUPPORT
- Support. As between the Parties, Origo Networks shall be responsible for providing support to End Users related to such End Users' use of the Marketplace itself, including Single Sign-On, billing, and transaction processing systems. Developer or its designee shall be solely responsible for providing support, if any, to End Users related to the operation of the Application, pursuant to its own support terms and policies (which, for the avoidance of doubt, may be offered for a fee).
4. BILLING AND REVENUE SHARE
- Pricing and Pricing Parity. Developer shall set the prices for subscriptions, upgrades, and other applicable use charges for each Application, in both US Dollars and Canadian Dollars. Developer shall not offer the same Application to End Users directly or through any other distribution channel for prices below those offered through the Marketplace. Further, while it is acknowledged that exchange rates fluctuate over time, prices quoted in Canadian Dollars shall not represent a substantial variation from the analogous US Dollar price, in light of the exchange rate in effect at the time the prices are set.
- Billing and Payment. Origo Networks will be responsible for processing purchase transactions and collecting subscription, upgrade, and other applicable usage fees directly from End Users. Origo Networks will remit to Developer on or before the fifth day of each calendar month, Application Net Revenue in respect of purchases processed in the previous calendar month, provided that the accumulated earned balance exceeds two hundred dollars ($200.00 USD). Accumulated earned balances less than two hundred dollars ($200.00 USD) will be rolled over to the next month. Origo Networks may remit payment in the manner of its choosing, including without limitation by check, wire transfer, or direct deposit to the account Developer indicates in its account on the Developer Portal.
- Refunds. Origo Networks does not grant refunds to Users for any fees paid by End Users for Applications. Developer is solely responsible for specifying the terms and conditions under which refunds are provided, and for providing refunds in accordance with such terms and conditions. Origo Networks and its Syndication Partners are not responsible for providing any refunds to End Users.
5. INTELLECTUAL PROPERTY OWNERSHIP
- Developer IP. As between the Parties, Developer shall retain exclusive right, title and interest in and to the Applications (including any modifications or enhancements made thereto during the Term), the Developer Content, and any and all Intellectual Property Rights in any of the foregoing.
- Origo Networks IP. As between the Parties, Origo Networks shall retain exclusive right, title and interest in and to the Marketplace and all visual interfaces, text graphics and other content included on the Marketplace, and all underlying technology, software, Usage Data and other data, and other materials that implement and or operate the Marketplace (including the Origo Networks APIs), including any and all modifications and enhancements made thereto during the Term, and any and all Intellectual Property Rights in any of the foregoing. For the avoidance of doubt, Origo Networks shall own all Origo Networks APIs and any other software or other technology (excluding the Application) that is developed or integrated with the Marketplace in connection with integration of any Application or otherwise supporting interoperation of the Applications and the Marketplace.
- No Implied Licenses. All rights not granted are expressly reserved. Except as expressly stated herein, nothing in this Agreement shall confer to either Party any license or right of ownership in material owned by the other Party, whether by implication, estoppel, or otherwise.
6. TERM AND TERMINATION
- Term. This Agreement will last for a period of two (2) years, after which the Agreement will renew automatically for successive one (1) year terms (collectively, the "Term") unless a Party gives notice of nonrenewal at least ninety (90) days prior to the end of the then-current term.
- Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party in the event that the other Party breaches any of its material obligations under this Agreement that remains uncured for thirty (30) days after notice thereof.
- Termination for Convenience. Origo Networks may terminate this Agreement at any time for any reason at all immediately upon written notice to Developer. Developer may terminate this Agreement for any reason at all immediately upon written notice to Origo Networks, any time prior to receiving confirmation that an Application has been accepted for inclusion in the Marketplace, or any time thereafter upon six (6) months advance written notice.
- Effect of Expiration or Termination. Upon termination of this Agreement for any reason whatsoever, all licenses granted hereunder shall terminate immediately, all exercise of activities permitted under such licenses shall cease, except as follows: (i) Developer shall continue to provide to End Users access to and support of Applications as previously purchased by such End Users (subject to the applicable Application Terms), and (ii) except in the event of a termination by Developer under Section6.2, Origo Networks shall continue to enable such End Users' use of Applications through the Marketplace (subject to the survival of Section 4.3 with respect to such End Users payments). Two years following the effective date of termination or expiration, Developer may elect to terminate the survival of the foregoing clause (ii), and resume full control of such End Users' use of the Applications.
- Survival. Sections 1, 3, 4.2, 4.3, 5, 6.4, 6.5, and 7 through 11 will survive expiration or termination of this Agreement for any reason.
7. REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties. Each Party represents and warrants that:
a. it has the full corporate right, power, and authority to enter into this Agreement and to perform the acts required of it under this Agreement;
b. the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party; and
c. this Agreement constitutes the legal, valid, and binding obligation of such Party when executed and delivered.
Developer Representations and Warranties. Developer hereby represents and warrants that:
a. Developer is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to grant and authorize Origo Networks and End Users to access and use the Applications and Developer Content as necessary to exercise the rights and licenses granted in this Agreement and in the manner contemplated by Origo Networks and this Agreement;
b. Developer will properly implement the Origo Networks APIs and will perform in accordance with applicable descriptions and specifications (including without limitation any such descriptions and specifications provided in the Developer Content) and with the AppDirect Program Policies (including without limitation, any applicable user interface guidelines), and Developer's marketing and promotional materials related to the Applications (including any applicable Developer Content), are not false or misleading;
c. The Applications and Developer Content, and Origo Networks' and End Users' interaction with, access to, or use of, the Applications and Developer Content as permitted hereunder does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity, or contain false or misleading information; or (c) violate any law or governmental rule or regulation, including any laws related to the collection, storage, processing, use, and disclosure of personal information.
d. The Applications and Developer Content do not contain any viruses, adware, spyware, back door, time bomb, drop dead device, worms, or other malicious code or any content or file or system that provides a method to circumvent any security features of the Marketplace (including without limitation any End User privacy settings, such as settings prohibiting direct solicitation and sales contact from Developers), or obtain unauthorized access to any End User device or computer.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES, AND THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND NEITHER MAKES ANY WARRANTS THAT ANY PARTICLUAR RESULTS WILL BE DERIVED FROM THE USE OF THE MARKETPLACE OR THE APPLICATIONS, OR ANY MATERIALS, DELIVERABLES, RECOMMENDATIONS, OR SERVICES PROVIDED UNDER THIS AGREEMENT. SPECIFICALLY, EXCEPT AS EXPRESSLY STATED OTHERWISE HEREIN, THE MARKETPLACE AND THE APPLICATIONS ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY.
8. LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL ORIGO NETWORKS BE LIABLE TO DEVELOPER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT ORIGO NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL ORIGO NETWORKS' TOTAL AGGREGATE LIABILITY TO DEVELOPER EXCEED THE AMOUNT OF DISTRIBUTION FEE ACTUALLY COLLECTED BY ORIGO NETWORKS HEREUNDER IN THE TWELVE MONTHS PROCEEDING ANY CLAIM GIVING RISE TO LIABILITY. THE FOREGOING CAP IS AN AGGREGATE FOR ALL CLAIMS AND SHALL NOT BE INCREASED BY MULTIPLE CLAIMS SUBJECT TO THE SAME, OVERLAPPING, OR ENTIRELY SEPARATE LOOKBACK PERIODS.
- By Developer. Developer shall indemnify, defend, and hold harmless Origo Networks and its Resellers, and its and their respective directors, officers, shareholders, agents and employees from and against any and all suits, actions, damages, costs, losses, expenses (including reasonable outside attorneys' fees), and other liabilities (each, a "Claim") arising from or in connection with (i) allegations that any Application or Developer Content violates or infringes any Intellectual Property Right of a third party, invades or infringes any right of privacy, or right of publicity, or any other Intellectual Property Right of any third party, or is slanderous, defamatory, or libelous of any third party or that Developer or any Application or Developer Content otherwise violates or infringes any other right of any person or entity, (ii) a breach or alleged breach of any of Developer's representations, warranties or obligations set forth in this Agreement, and (iii) for any refunds or other amounts paid to End Users or expenses incurred in connection with providing warranty or support services for the Applications to End Users. Developer shall solely conduct the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise of such a Claim shall be entered into or agreed to without Origo Networks' prior approval (not to be unreasonably withheld or delayed) and (b) Origo Networks shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.
- By Origo Networks. Origo Networks shall indemnify, defend and hold harmless Developer, and its respective directors, officers, shareholders, agents and employees from and against any and all claims from End Users arising as a result of any representation, warranty, or other obligation made by Origo Networks to such End User on behalf of Developer beyond the scope of the representations, warranties, and obligations Developer makes to end users generally. Origo Networks shall solely conduct the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise of any such Claim shall be entered into or agreed to without Developer's prior approval (not to be unreasonably withheld or delayed) and (b) Developer shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.
In connection with this Agreement, each of Origo Networks and Developer may be exposed to and will be furnished with certain proprietary or non-public information, material or data relating to the other's businesses, technologies, products, productions, or services, or plans therefor, which are confidential and not otherwise available or known to the public, including without limitation the terms of this Agreement and the financial interests of the Parties in the Agreement, and any unpublished APIs ("Confidential Information"). Each Party shall keep confidential and not reveal or disclose any Confidential Information, during the Term or thereafter to any third party; provided, however, that each Party may disclose Confidential Information to its employees and independent contractors with a need to know to perform such Party's obligations under this agreement, and third party counsel, advisors and accountants so long as all such third party disclosures are made pursuant to written obligations of confidentiality no less protective than the terms of this Agreement. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by or at the direction of the receiving Party, (b) is or becomes available to the receiving Party on a non-confidential basis from a source that is entitled to disclose it to such Party, (c) was known to the receiving Party prior to receipt from the disclosing Party, or (d) is developed by the receiving Party without the benefit of the Confidential Information. Notwithstanding any of the foregoing, a Party may disclose Confidential Information if and solely to the extent that such disclosure is required by law, court order, judicial process, subpoena, or similar process, or applicable rule or regulation, provided that such Party shall use commercially reasonable efforts to seek confidential treatment for any such disclosed Confidential Information, and to the extent legally permissible, promptly notify the disclosing Party of such disclosure.
- Non-waiver. The failure by a Party to take action by reason of any default by the other Party, whether in a single instance or repeatedly, shall not constitute a waiver of any such default or of the performance required of the defaulting Party. The express waiver by a Party of any provision of this Agreement or a default by the other Party in any one instance shall not be construed as a waiver of the same provision or default in any subsequent instance.
- Notices. Any notice required or permitted under this Agreement or by law shall be in writing by email, and shall be deemed given upon dispatch, unless the sender receives a notice of non-delivery within 4 hours of sending. In the case of Origo Networks, notices should be sent to email@example.com, and in the case of Developer, to the email address listed in Developer's profile in the Developer Portal.
- Entire Agreement. This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No amendment to or waiver of any provision this Agreement shall be binding unless executed in writing by the Party to be bound thereby.
- Headings and Captions. The headings and captions used in this Agreement are for convenience of reference only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof.
- Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of California, without regard for choice of law or conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Santa Clara County, California, and both parties agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
- Severability. If any provision of this Agreement as applied to either Party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, it shall be revised so as to effectuate the intent of the parties to the maximum extent possible, of if not capable of such revision will be deemed severed from this Agreement, and the remaining provisions of this Agreement will remain in force and unaffected.
- Assignment. Neither Party may assign its rights or delegate its obligations hereunder, including by operation of law, without the express prior written approval of the other, except that prior written approval shall not be required for either Party to assign this Agreement, along with all its rights, licenses, and obligations, to an entity that succeeds to all or substantially all of such Party's assets related to this Agreement in the event of a merger (irrespective of which party to such merger is the surviving party), change of control, acquisition, or other corporate reorganization. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
- Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
- Independent Contractors. Each Party's performance of its duties and obligations under this Agreement shall be that of an independent contractor and nothing herein shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties.