1.1 This MiKandi Developer Distribution Agreement (referred herein as the "Agreement") sets forth legal and contractual rights and obligations by and between You and Innovative Mobile Endeavors LLC dba MiKandi (“MiKandi”). It is a required condition precedent to Your participation in and use of the MiKandi App Store (“Store”); whereby you must first agree to this Agreement by clicking to "accept" where this option is made available to You.
1.2 If you are agreeing to be bound to the Agreement on behalf of your employer, company or other entity, you explicitly represent and warrant that you have full legal authority to bind your employer, company or such entity to this Agreement. If you do not have the requisite authority, you may not "accept" this Agreement or use the Store on behalf of your employer, company or other entity.
MiKandi, a Washington limited liability company, is the developer and operator of the MiKandi App Store, wherein MiKandi markets, solicits, obtains orders and delivers third-party Developers' Products to Users. Unless otherwise specified, all defined terms herein are set forth in Section 17 of this Agreement.
3. Agent and/or Commissionaire Arrangement
3.1 Subject to the terms and conditions herein, You hereby acknowledge and appoint MiKandi as Your non-exclusive agent and/or commissionaire for the marketing, solicitation and delivery of Products to Users within the Territory. MiKandi acknowledges and agrees that You shall have the right to appoint one or more other agents or commissionaires within the Territory for the Products.
3.2 MiKandi will be entitled to receive a fee for all Products sold to Users attributable to orders processed by MiKandi on Your behalf, excluding applicable taxes.
3.3 You hereby authorize and instruct MiKandi to:
- Market, solicit and obtain orders on Your behalf for Products from Users located in the Territory;
- Copy, perform, display and use the Products for administrative and demonstrative purposes in connection with the operation and marketing and promotion of MiKandi and the Store;
- Market and promote the availability of Your Products in MiKandi, directly or indirectly, using all Marks, and You grant Affiliate Operators the rights to do the same;
- Provide hosting services to You, in order to allow for the storage of, and End User access to, the Products;
- Make copies of, format, and otherwise prepare Products for acquisition and download by End Users;
- Allow End Users to access copies of the Products, so that End Users may acquire from You and electronically download those Products;
- Issue invoices for the purchase price payable by End Users for the Products;
- Translate Your Product information into foreign languages.
You agree that MiKandi will acquire no ownership interest or licensing rights in the Products and no royalty or other compensation will be attributable authority granted by You to MiKandi in this Section 3.3 or any other provision of this Agreement.
3.4 The Parties mutually acknowledge and agree that their relationship under this Agreement is, and shall be, that of principal and agent, or principal and commissionaire, as the case may be, and that You, as principal, are, and shall be, solely responsible for any and all claims and liabilities, involving or relating to, the Products, as provided in this Agreement.
4. Pricing and Payments
4.1 You will set the prices of Your Products in MiKandi Gold, and MiKandi shall market and sell those Products, on Your behalf, to End Users at such established prices. Although MiKandi Gold may be offered to Users at varying discount rates, the rate of MiKandi Gold to United States Dollar ("USD") is 1 MiKandi Gold : $0.01. The gross sale prices less MiKandi's commission as defined in Section 3.2 above and applicable taxes, will be remitted to you, which may be revised from time to time. You agree that the remittance currency shall be in USD and that any currency differentials or fees associated to the remittance of payment to You by any payment process offered by MiKandi or instructed by You for MiKandi to use shall be deducted from any such remittances. You remain responsible for any fees (e.g. wire transfer fees) charged by Your bank or any intermediary bands between Your bank and MiKandi's bank.
4.2 No refunds are required for any of the Products, except in the event (i) the Product contains malware, viruses, illegal content, does not work properly, or is not accurately represented; (ii) the Product otherwise violates this Agreement; (iii) You remove the Product from the Store; or (iv) at MiKandi's sole and absolute discretion. In the event that a User purchases Your Product, and files a dispute against payment and the payment is ultimately refunded ("Chargeback"), You must refund to MiKandi the amount collected on Your behalf in relation to the Product.
4.3 In the event that the sale or delivery of any of the Products to any End User is subject to any income, sales, use, goods and services, value-added, or other similar tax, under applicable law, You shall be solely responsible for remitting that tax to the appropriate taxing authority. You shall indemnify and hold MiKandi harmless against any and all claims by any tax authority for any underpayment of any income, sales, use, goods and services, value-added or other tax or levy, and any penalties and/or interest thereon.
4.4 If you are not a resident of the United States of America for U.S. federal income tax purposes, You may be required to complete Internal Revenue Service Form W-8BEN and/or any other required tax forms and provide MiKandi with a copy of such completed form(s), and any other information necessary for compliance with applicable tax laws and regulations. If MiKandi reasonably believes any withholding or similar tax is due, the full amount of that withholding or similar tax shall be solely for Your account, and MiKandi will deduct the full amount of such withholding or similar tax from the balance owed to You, and will remit the amount held to the appropriate tax authorities on Your behalf. You will indemnify and hold MiKandi harmless against any and all claims by any competent tax authority for any underpayment of any such withholding or similar taxes, and any penalties and/or interest thereon.
4.5 In the event that You incur liability for income tax, franchise tax, business and occupation tax, or any similar taxes based on Your income, You shall be solely responsible for that tax.
5. Delivery of Products to MiKandi and Your Use of the Store
5.1 You acknowledge and agree that in the course of acting as agent and/or commissionaire for You, MiKandi is hosting the Products and is allowing the download of those Products by End Users, on Your behalf.
5.2 MiKandi offers a wide range of services, and sometimes, additional terms may apply. You acknowledge and agree that You will be subject to and will adhere to any and all MiKandi generally accepted practices, guidelines, terms, agreements, and policies, including, but not limited to, MiKandi’s Affiliate Program Agreement and MiKandi’s Publisher Policies.
5.3 You will deliver to MiKandi, at Your sole expense, using the MiKandi Developer site, the Products, Product information and associated metadata, in a format and manner prescribed by MiKandi, as required for the delivery of the Products to End Users in accordance with this Agreement.
5.4 You agree that you will protect the privacy and legal rights of Users. If the users provide you with, or Your Product accesses or uses, usernames, passwords, or other login information or personal information, you must make the users aware that the information will be available to Your Product, and You must provide legally adequate privacy notice and protection for those Users. Further, Your Product may only use that information for limited purposes for which the User has given You permission to do so. If the User has opted into a separate agreement with You that allows You or Your Product to store or use personal or sensitive information directly related to Your Product (not including other products or applications) then the terms of that separate agreement will govern Your use of such information.
5.5 You agree that You will not engage in any activity with the Store, including development and delivery of Products, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, Users, or any mobile network operator. You may not use customer information obtained from the Store to sell or distribute Products outside the Store.
5.6 You may not provide Products whose primary purpose is to facilitate the distribution of Products outside the Store. Likewise, you may not publish Products whose primary purpose is to share Products of other Developers with other Users or Devices, or Products whose primary purpose is that of affiliate marketing.
5.7 You represent and warrant that You have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright and other proprietary rights, in and to the Content of Your Products. If You use third-party content, You represent and warrant that You have the right to distribute the third-party content. You agree that You will not submit Products containing Content to MiKandi that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to use and submit the Content.
5.8 You certify that the Content in Your Products are compliant with 18 U.S.C. 2257. You certify that You keep records of the models and performers in the Content of Your Products, that they are over 18 years of age and/or the age of majority in the jurisdiction which they reside and in which the content was recorded, and that You have the written consent, release, and/or permission of each and every identifiable individual person in your Products to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Products in the manner contemplated by the Site, Store, and this Agreement. If You use third-party Content, You represent and warrant that the third-party Content is compliant in accordance with this Section 5.8.
5.9 Users are allowed unlimited reinstalls of each application delivered or sold through the Store, provided however that if you remove a Products(s) from the Store pursuant to clauses (i), or (ii) of Section 8.1, such Product(s) shall be removed from all portions of the Store and Users shall no longer have a right or ability to reinstall the affected Products.
5.10 When submitting Products to the Store, you may be offered the option of distributing Your Products to additional distribution channels offered by MiKandi. Electing to participate does not guarantee that Your Products will be offered in MiKandi’s additional distribution channels. You acknowledge and agree that such distribution is pursuant to MiKandi’s relationships with third party storefronts and that MiKandi bears sole responsibility under this Agreement with regard to such distribution.
6. Ownership and End User Licensing
6.1 The Parties acknowledge and agree that MiKandi shall not acquire any ownership interest in or licensing rights to any of the Products, and title, risk of loss, responsibility for, and control over the Products shall, at all times, remain with You.
6.2 You may deliver to MiKandi a separate end user license agreement (EULA) in your Product that will govern the User's rights to the Product. You hereby acknowledge that the EULA for each of the Products is solely between You and the End User and conforms to applicable law, and MiKandi shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by You or any End User of any of the terms and conditions of any EULA.
7. Marks and Publicity
7.1 Each Party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Marks. Except to the limited extent provided by this Agreement, neither Party grants, nor shall the other Party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Mark of the other Party. Subject to the terms and conditions of this Agreement, You authorize MiKandi and its affiliates to display Your Marks, provided by You to MiKandi, for use solely in connection with the sale of Your Products or to otherwise fulfill its obligations under this Agreement. Upon the termination of this Agreement between You and MiKandi, MiKandi will cease use of the discontinued Products' Marks pursuant to this Section 7.1.
7.2 For the purpose of marketing the presence and sale of Your Products in MiKandi, MiKandi and its Affiliate Operators may include Your Marks, submitted by You to MiKandi: (i) within the Store and Sites; (ii) in online or mobile communications outside the Store when mentioned along with other Store Products; (iii) when making announcements of the availability of the Products online or on Devices; (iv) in presentations; and (v) in customer lists which appear either online or on Devices. Upon the termination of this Agreement between You and MiKandi, MiKandi will cease use of the discontinued Products' Marks for such marketing purposes.
8. Product Takedowns
8.1 Developer Takedowns. You may remove your Products from future delivery or sale via the Store by MiKandi on Your behalf at any time, but you must comply with this Agreement, including, but not limited to, refund requirements. Removing your Products for delivery or sale via the Store by MiKandi on Your behalf does not (a) affect the license rights of Users who have previously purchased or downloaded Your Products, (b) remove your Products from Devices or from any part of the Store where previously purchased or downloaded applications are stored on behalf of Users, or (c) change your obligation to deliver or support Products or services that have been previously purchased or downloaded by Users. In no event will MiKandi maintain on any portion of the Store any Product that you have removed from the Store and provided written notice to MiKandi that such removal was due to (i) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, or (ii) an allegation or determination that such Product does not comply with applicable law.
8.2 MiKandi Takedowns. While MiKandi does not undertake to monitor the Products or the Content of the Products, if MiKandi is notified by You, Users, or otherwise is made aware and determines, in its sole discretion, that a Product or any portion thereof or Your Marks (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) may create a liability for MiKandi; (d) is deemed harmful to devices, servers, networks, or other properties; (e) is defective, malicious, contains malware or viruses; (f) is inaccurately represented by You; (g) is deemed to have an adverse impact on MiKandi's network; (h) violates the terms of this Agreement or the MiKandi Publisher Policies; or (i) the display of the Product is impacting the integrity of MiKandi servers, MiKandi may remove the Product from the Store or reclassify the Product at its sole discretion.
8.3 In the event that Your Product is involuntary removed because it is defective, malicious, infringes intellectual property rights of another person or entity, is inaccurately represented, or does not comply with applicable law, (i) you must remit to MiKandi all amounts collected on Your behalf by MiKandi in association to the sale of the Product, plus any associated fees (i.e. chargebacks and payment transaction fees), and (ii) MiKandi may, at its sole discretion, withhold from your future sales the amount in subsection (i) above.
8.4 In addition to Section 8.3 above, in the event that Your Product is involuntary removed because it infringes the intellectual property rights of another person or entity, or knowingly violates applicable law, You agree to forfeit any amounts collected by MiKandi from Users on Your behalf. Additionally, MiKandi may, in its sole discretion, choose to immediately terminate this Agreement, and any and all additional agreements between You and MiKandi, with you without prior notice.
9. Responsibilities and Liability
9.1 You acknowledge and agree that MiKandi is not responsible for reviewing the Content of Your Products prior to, during, or after the delivery or sale of Your Products to Users. You agree that You are solely responsible for (and that MiKandi has no responsibility to you or to any third party for) any Products you deliver to MiKandi and for the consequences of your actions (including any loss or damage which MiKandi may suffer) by doing so.
9.2 You shall be responsible for the support and maintenance of Your Products and any complaints about Your Products. Your contact information will be displayed in each application detail page and made available to Users for customer support purposes.
9.3 You shall be solely responsible for, and MiKandi shall have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from the Products and/or the use of those Products by any User, including, but not limited to: (i) claims of breach of warranty; (ii) product liability claims; and (iii) claims that any of the Products and/or the End User's possession or use of those Products infringes the copyright or other intellectual property rights of any third-party or violates any applicable law.
9.4 You agree that You are solely responsible for (and that MiKandi has no responsibility to you or to any third-party for) any breach of your obligations under this Agreement, any applicable third-party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which MiKandi or any third-party may suffer) of any such breach.
10. Privacy Information
10.1 In order to continually innovate and improve the Store, MiKandi may collect certain usage statistics from the Store and Devices, including, but not limited to, information on how the Store and Devices are being used.
11. Terminating this Agreement
11.1 This Agreement will continue to apply until terminated by either You or MiKandi as set out below.
11.2 If you want to terminate this Agreement, you must provide MiKandi with thirty (30) days prior written notice (unless this Agreement terminates under Section 15) and cease Your use of any relevant developer credentials.
11.3 MiKandi may at any time, terminate this Agreement with you if:
- You have breached any provision of this Agreement; or
- MiKandi is required to do so by law; or
- MiKandi decides to no longer provide the Store.
12. DISCLAIMER OF WARRANTIES
12.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE STORE IS AT YOUR SOLE RISK AND THAT THE STORE IS PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
12.2 YOUR USE OF THE STORE AND ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE STORE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
12.3 MIKANDI FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIKANDI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT MIKANDI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless MiKandi, its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Your use of the Store in violation of this Agreement, and (b) Your Product that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of third-party or defames any person or violates their rights of publicity or privacy.
15. Changes to the Agreement
MiKandi may revise this Agreement from time to time. The most current version will always be available at http://publisher.mikandi.com. By continuing to access or use the Store after such revisions become effective, You agree to be bound by the revised Agreement.
16. General Provisions
16.2 You agree that if MiKandi does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which MiKandi has the benefit under any applicable law), this will not be taken as a formal waiver of MiKandi's rights and that those rights or remedies will still be available to MiKandi.
16.3 If any court of law, having jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
16.4 You acknowledge and agree that each member of the group of companies of which MiKandi is the parent shall be third-party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers to benefit on (or rights in favor of) them. Other than this, no other person or company shall be third-party beneficiaries to this Agreement.
16.5 In the event of any action, mediation, arbitration, or proceeding arising from or under that terms, provisions or conditions of this Agreement, the prevailing Party shall be entitled to recover reasonable attorney's fees and costs so incurred.
16.6 PRODUCTS IN THE STORE MAY BE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU HEREBY CERTIFY THAT ALL OF THE PRODUCTS YOU DELIVER TO MIKANDI UNDER THIS AGREEMENT ARE AUTHORIZED FOR EXPORT FROM THE UNITED STATES, IN ACCORDANCE WITH THE REQUIREMENTS OF THE UNITED STATES EXPORT ADMINISTRATION REGULATIONS, 15 C.F.R. PARTS 730-744. YOU ACKNOWLEDGE THAT MIKANDI IS RELYING UPON YOUR CERTIFICATION IN THIS SECTION 16.6 IN ALLOWING END-USERS TO ACCESS AND DOWNLOAD THE PRODUCTS UNDER THIS AGREEMENT.
16.7 The rights granted in this Agreement may not be assigned or transferred by either You or MiKandi without prior written approval of the other Party. Neither You nor MiKandi shall be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other Party.
16.8 This Agreement, and Your relationship with MiKandi under this Agreement, shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and MiKandi agree to submit to the exclusive jurisdiction of the courts located within King County, Washington to resolve any legal matter arising from this Agreement. Notwithstanding this, You agree that MiKandi shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
16.9 The obligations under Sections 6, 7.1 (solely to permit MiKandi to effectuate Section 5.9), 8, 9, 12, 13, 14, and 16 will survive any expiration or termination of this Agreement.
The following capitalized terms, when used in this Agreement, shall have the meanings stated below (unless otherwise expressly provided herein):
“MiKandi” means Innovative Mobile Endeavors LLC dba MiKandi, a Washington corporation with a principal place of business at 12345 Lake City Way NE #169 Seattle, WA 98125.
“Affiliate Operator(s)” means independent third party contractors, who market and promote the MiKandi App Store.
“Content” means all digital content, including motion pictures, audio, visual, audio/visual, text, metadata, graphics or other media of any kind available in and from Your Products or provided by You to MiKandi.
“Developer” or “You” means any person or company who is registered with the Store, as defined herein.
“Developer Account” means an account issued to Developers that enables Developers to deliver Products and Content to MiKandi.
“Device” means any electronic device that can access the Store.
“KandiLibs API” means the application programming interface for 3rd party applications to allow in-app purchases using MiKandi Gold.
“Marks” means all registered and common law names, trademarks, service marks, trade names, trade dress or logos owned or licensed by a Party.
“MiKandi Gold” means the official virtual currency created by and used in the MiKandi App Store.
“Store” means the MiKandi App Store operated by MiKandi, where MiKandi delivers and sells Products to Users in the Territory.
“Party” means either MiKandi or Developer. Both Parties are sometimes collectively referred to in this Agreement as "Parties".
“Product(s)” means software, content and digital materials created for Devices, including any additional functionality content or services sold by You from within a Product using the KandiBilling API.
“Territory” means the entire world.
“User or End User” means a subscriber of MiKandi having a subscriber agreement with MiKandi and gaining access to the Products using a Device.
If you have any questions about this Agreement, please contact MiKandi at firstname.lastname@example.org.