Software Distribution Agreement
Before using content distribution services provided by MobiHand, you (for yourself or on behalf of your company) must agree to the terms of this online Service Agreement, you must provide information about your business requested at the bottom of the page, and you must receive a communication from MobiHand indicating that your application to use MobiHand's services has been accepted and an account has been established for you. MobiHand reserves the right to accept or reject your application for any reason.
THIS IS A BINDING LEGAL AGREEMENT THAT DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO SERVICES PROVIDED TO YOU BY MOBIHAND. IF YOU AGREE WITH THE TERMS OF THIS SERVICE AGREEMENT, PLEASE CLICK ON THE "ACCEPT" BUTTON BELOW. IF YOU DO NOT AGREE WITH THIS SERVICE AGREEMENT PLEASE CLOSE THIS WEB PAGE.
Service Agreement
Introduction
MobiHand, Inc., a California corporation, ("MobiHand") provides several services ("Services") related to distribution of application software, sound files, graphical files, subscriptions to digital services, and other types of content to various third-party individuals and entities ("Customers"). Each item of content is provided to MobiHand by an individual or entity that owns or has otherwise obtained rights to such content.
As used in this Service Agreement, the term "Content Provider" means you or the entity on whose behalf you are entering this Service Agreement and "Content" means any item that Content Provider submits to MobiHand for distribution.
- Services
- Service Descriptions. Each Service is described in a Service Description that is a part of this Service Agreement. Service Descriptions are displayed on this document and may be viewed by scrolling down.
- Terms and Conditions. Every Service provided by MobiHand is subject to the terms and conditions of this Service Agreement and the applicable Service Description.
- Obligations of Content Provider
- Ownership. Content Provider warrants that all Content is owned by Content Provider or that Content Provider has legally obtained, from the actual owner of such Content, all rights necessary to enable Content Provider to deliver Content to Mobihand, to enter this Service Agreement and to grant the rights described herein. Content Provider warrants that Content does not infringe upon any patent, copyright, trademark, trade secret, or any other proprietary right belonging to any third party.
- Viruses. Content Provider warrants that all Content is, as far as Content Provider can reasonably determine, free of all viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots and other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system operations or data.
- Defects. Before delivering any Content to MobiHand, Content Provider shall first test the Content to ensure that it is, to a reasonable extent, free of defects.
- Customer Information. Information about Customers delivered by MobiHand to Content Partner shall not, without the permission of the Customer, be sold, given, loaned or made available to any third party, nor be used to contact the customer in violation of applicable laws.
- Use of MobiHand Systems. Content Provider shall ensure that all items of information entered by Content Provider into MobiHand's systems, including contact information, mailing address, payment instructions, tax information and product descriptions, are accurate. Content Provider shall not use MobiHand's systems for any illegal or malicious purpose or in any manner that is not consistent with their intended use.
- Payment
- Payment Amounts. MobiHand shall pay Content Provider the percentage share of Net Receipts specified in the applicable Service Description. Net Receipts means the net amount of gross receipts received and refunds, chargebacks and other reversals incurred by MobiHand for downloading, licensing and selling Content under the applicable Service, less any applicable taxes (e.g. VAT or sales taxes), whether separately stated and billed to the customer or otherwise levied on such transactions by taxing authorities (but not including taxes upon MobiHand's income), and less shipping and handling charges, if any, included in such receipts.
- Withholding Taxes. Payments will be reduced by the amounts of tax, if any, that MobiHand is required to withhold by the United States Internal Revenue Service or any other taxing authority and amounts withheld, if any, will be paid on Content Provider's behalf by MobiHand to the appropriate taxing authority. Content Provider is solely responsible for providing to MobiHand all information and forms that the IRS or any other taxing authority might require to reduce or eliminate withholding of tax. Upon request by Content Provider, MobiHand will provide to Content Provider a blank copy of Form W-9 (for US companies) or Form W-8BEN (for companies outside the US) to be used for this purpose. As a courtesy to Content Provider, MobiHand will delay payments until information required by tax authorities is provided or Content Provider requests that payments be made in the absence of such information (whereupon such payments may be subject to the maximum rates of withholding tax).
- Payment Timing. For Customer purchases completed in each calendar month, MobiHand shall pay Content Provider its share of Net Receipts on the 15th day of the following month (or the next business day if the 15th is on a weekend or US holiday). If the total amount due to Content Provider is one hundred U.S. Dollars ($100.00) or less, MobiHand may withhold payment until the earlier of (i) the next payment date on which the cumulative unpaid amount owed to Content Provider exceeds one hundred U.S. Dollars ($100.00), or (ii) the payment date that occurs in the last month of the calendar quarter. Payments will be made by check, unless MobiHand and Content Provider have arranged an alternate electronic payment method. In the event of an unusual level of chargebacks or refunds for an item of Content, MobiHand may reduce payments by amounts sufficient to cover reasonably expected future chargebacks, refunds and related banking fees. If, for any reason, Content Provider's balance with MobiHand at the end of a month becomes negative (for example as a result of customer refunds or chargebacks), then Content Provider shall pay such balance to MobiHand by the 15th day of the following month.
- Audit. No more than once during any twelve (12) month period, upon at least thirty (30) days' prior written notice, Content Provider may, at its expense, engage an independent auditor to review the records of MobiHand for the sole purpose of verifying MobiHand's compliance with its reporting and payment obligations hereunder. Should such audit discover an underpayment that results from understated reporting of Net Receipts in the amount of ten percent (10%) or more of the Net Receipts for any calendar quarter, Content Provider shall be reimbursed for the reasonable costs of such audit, not to exceed Content Provider's share of Net Receipts for such calendar quarter, in addition to receiving the adjusted payment.
- Term and Termination
- Term. This Agreement shall become effective upon (i) Content Provider's electronic acceptance at MobiHand's website, or (ii) the date that authorized signatures of Content Provider and MobiHand have been affixed on a paper copy of this Agreement; and it shall continue in full force and effect until terminated as provided herein.
- Termination. Either party may terminate this Agreement for any reason or for no reason by delivering written notice to the other party at least thirty (30) days prior to the effective date of termination. In the event of termination of this Agreement, MobiHand shall cease providing Services and destroy or return to Content Provider all Content covered by this Agreement, except that MobiHand shall have the right to and may, at its sole discretion, retain archived versions of Content and provide copies of such Content and applicable registration codes only to customers who previously obtained and paid for such items through MobiHand Services.
- Proprietary Rights
- Ownership by Content Provider. This Agreement does not transfer ownership of any proprietary rights, including copyrights, patents, trademarks, and trade secrets, in and to the Content. Content Provider hereby grants MobiHand a nonexclusive, worldwide, royalty-free right and license to use Content Provider's trademarks, trade names, service marks, logos or other identifying or distinctive marks for the sole purpose of providing the services, provided that MobiHand will comply with Content Provider's trademark usage guidelines communicated in writing to MobiHand.
- Ownership by MobiHand. This Agreement does not transfer ownership of any proprietary rights, including copyrights, patents, trademarks, and trade secrets of MobiHand, nor does it grant to Content Provider any license to copy or use any portion of MobiHand's systems, except as permitted in connection with Content Provider's use of Services during the Term. MobiHand owns all proprietary rights, including copyrights and trademarks, in any marketing materials created, modified or otherwise prepared by MobiHand.
- Disclaimers
- Liabilities. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY SERVICE PROVIDED BY MOBIHAND.
- Warranty Disclaimer. MobiHand makes no warranty that its Services will be uninterrupted, timely, secure or error free, nor that such Services will meet the requirements of Content Provider.
- Indemnification
- Content Provider shall indemnify, defend and hold harmless MobiHand, as well as MobiHand's Channel Partners, and their officers, directors, shareholders, controlling persons, employees and agents from and against any and all liabilities, suits, losses, damages, judgments and expenses (including reasonable attorney fees and court costs) arising directly or indirectly out of (i) any claim by any third party that Content Owner or Content violates the property rights of a third party, or (ii) any claim relating to the content, quality or performance of the Content, including, but not limited to, existence of viruses or other damaging elements in the Content. MobiHand shall promptly notify Content Provider if MobiHand becomes aware of any claim subject to indemnification. MobiHand shall allow Content Provider to control the defense against such claims provided that Content Provider uses counsel reasonably acceptable to MobiHand to defend each claim. MobiHand shall retain the rights to participate in the defense and to take action to prevent a default judgment against it.
- General Provisions
- Relationship of the Parties. This Agreement does not create a partnership, joint venture, agency relationship or business combination between the parties and neither party shall be obligated by any agreement, representation or warranty given by the other party.
- Notices. All notices under or relating to this Agreement shall be deemed delivered on the day that delivery of such notices is initiated via email to the primary contact email address provided by Content Provider for notices to Content Provider or to payments@mobihand.com for notices to MobiHand.
- Entire Agreement. This Service Agreement, including the Service Descriptions, sets forth the entire understanding of the parties and supersedes all prior agreements, understandings and negotiations, with respect to the subject matter hereof.
- Changes to Services and Agreement. MobiHand may, at any time, change this Service Agreement or add, discontinue or change its Services and related Service Descriptions (any such action is a "Change"). In the event of a Change, MobiHand will post the revised Service Agreement and/or Service Description on its website and notify Content Provider no later than 30 days prior to the effective date of the Change. In the event of a Change deemed unacceptable to Content Provider, Content Provider's sole remedies are to terminate this Agreement or discontinue using the Service(s) to which the unacceptable change applies. Content Provider may also request a specific modification of the revised Service Agreement and/or Service Description, but such request shall not modify any Change or delay the effective date of any Change unless it is accepted in writing by MobiHand.
- Governing Law, Jurisdiction and Venue. This Service Agreement shall be governed by the laws of the State of California, without regard to rules governing conflicts of law. Any claims or actions regarding or arising out of this Service Agreement shall be brought exclusively in a court of competent jurisdiction located in San Mateo County, California. This Service Agreement shall not be governed by the Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.
- Assignment. Content Provider may not assign this Service Agreement without the prior written consent of MobiHand; except that it may be assigned to the acquiring party in connection with the merger or sale of all or substantially all of Content Provider's assets, including Content Provider's rights in the Content, provided that the acquiring party notifies MobiHand in writing that it agrees to assume Content Provider's obligations under the Service Agreement.
- Authority. Each party warrants that it has the full power, legal right and authority to enter into this Service Agreement and perform its obligations hereunder.
Service Description
Content Distribution Service
Service Summary. MobiHand distributes, through a network of online and over-the-air sales channels, many different types of content owned by content providers that enroll in the Service. MobiHand processes payment transactions and pays the applicable portion of the amounts collected to the content provider.
Service Enrollment. To enroll in this service, Content Provider must make an item of Content available for distribution, in a form suitable for electronic reproduction and delivery, by (i) uploading such Content onto MobiHand's servers using the upload functions accessible to Content Provider, under password protection, within MobiHand's web site, (ii) giving written or email authorization for MobiHand to upload such Content, or (iii) by activating previously uploaded Content for sale by selecting a "Publish" button.
Distribution Network. MobiHand distributes Content through a variety of different channels, including websites, catalogs accessible on mobile devices and other physical and electronic channels that enable potential customers to find, try and buy Content. Some channels, including the online store at www.mobihand.com, are owned by MobiHand and some channels are owned by MobiHand's authorized distribution contractors ("Channel Partners"). MobiHand will determine which channels to use to distribute Content. MobiHand may decline to distribute any item of Content from Content Provider that it deems inappropriate for any reason.
Pricing. Content Provider shall enter into MobiHand's system the retail price applicable to each item of Content. MobiHand and its Channel Partners may offer discounts, provided such discounts shall not exceed 20% of the retail price specified by Content Provider. Content Provider may offer the software for "free" or for any price that is equal to or greater than $3.95. At no time shall the retail price of Content or the special price of upgrades provided to MobiHand be higher than the applicable retail price or special upgrade price provided to other distributors.
Downloading. MobiHand enables customers to download Content. Such downloads may be trial versions if Content Provider has made such a version available. All trial versions provided by Content Provider must clearly direct the Customer to register and/or purchase the Content at the web site where the Customer obtained the trial version and there shall be no reference to any other website where registration and purchase may be completed. The foregoing instructions for registration and purchase must be displayed, at a minimum, in the registration screen contained in the Content, or, if the Content does not contain a registration screen, then the instructions must be displayed in all comparable introductory and informational screens. At Content Owner's request, a temporary waiver of the foregoing trial version requirements may be provided, in writing or via email, to provide sufficient time for compliance.
Activation Codes. If Content Provider requires the use of activation codes, registration codes or any other information to activate purchased Content ("Activation Codes"), such Activation Codes will be provided to MobiHand either in advance or in real time when each sale occurs, so that MobiHand may provide an Activation Code to the Customer immediately upon completion of each sale.
Customer Support by Mobihand. MobiHand will assist customers in the downloading, installation and activation of Content, which will not include resolving problems caused by the Content's malfunction and which shall not be continued for items of Content for which customer installation problems are frequent or persistent
Customer Support by Content Provider. Content Provider shall provide customer support that is accessible via e-mail, telephone and/or Content Provider's website. The level of support must, at a minimum, be in accordance with Content Provider's support policies then in effect for customers who purchase Content directly from Content Provider and through other channels. Content Provider shall provide to MobiHand and make available to customers, bug fixes, upgrades and enhancements within seven (7) days of their release. Content Provider may, at its sole discretion, charge customers for upgrades and enhancements.
License. MobiHand and its Channel Partners shall have a worldwide, non-exclusive right and license to use, publicly demonstrate, copy, deliver, market, and license the Content that Content Provider submits to MobiHand for distribution.
Refunds. Refunds to customers will be made in accordance with MobiHand's return policy as described on its website.
Reports. MobiHand will make available to Content Provider a monthly report that identifies the number of customers who purchased the Content and submitted payment to MobiHand and a computation of the amounts owed by MobiHand to Content Provider.
Payments. MobiHand will pay to Content Provider 80% of Net Receipts occurring at www.mobihand.com and 60% of Net Receipts at all other channels.
Service Description
Website Electronic Commerce Service
Service Summary. MobiHand operates electronic commerce systems that are accessible by Customers at the websites of content providers who enroll in the Service. The commerce system includes a secure order process, credit card billing, content downloads, communication to the content provider of orders requiring fulfillment, and real-time and monthly sales reporting. MobiHand processes payment transactions and pays the applicable portion of the amounts collected to the content provider.
At Content Provider's option, content products of third-parties who have authorized MobiHand to distribute their products ("Third-Party Content") may be made available for purchase along with Content Provider's Content. Content Provider agrees that neither this Agreement nor any activities related to this Agreement shall give Content Provider any rights in or to such Third-Party Content, including copyrights, patents, trademarks, and trade secrets.
Service Enrollment. To enroll in the Website Electronic Commerce Service, Content Provider must (i) be already enrolled in MobiHand's Content Distribution Service, including uploading Content to MobiHand's system, (ii) request this service by electronic mail to "partners@mobihand.com", and (iii) implement hyper-link(s) within Content Provider's website(s) to the applicable pages provided by MobiHand.
Third-Party Content. At Content Provider's option, content products of third-parties who have authorized MobiHand to distribute their products ("Third-Party Content") may be made available for purchase, along with Content Provider's Content, at Content Provider's website. Content Provider agrees that neither this Agreement nor any activities related to this Agreement shall give Content Provider any rights in or to such Third-Party Content, including copyrights, patents, trademarks, and trade secrets.
Pricing. The retail price for each item of Content entered in MobiHand's system in connection with the Content Distribution Service shall apply to this Service also.
Customer Support by Content Provider. All Customer support will be the responsibility of Content Provider.
Refunds. Refunds to customers will be made in accordance with MobiHand's return policy as described on its website. In addition, Content Provider may initiate refunds to resolve Customer service issues by instructing MobiHand to issue a refund.
License. MobiHand shall have a worldwide, non-exclusive right and license to copy Content and deliver such copies to Customers that access such Content through the links on Content Provider's website(s) and MobiHand shall have the right to collect payments from Content Provider's customers.
Reports. MobiHand will include and separately identify Electronic Commerce transactions in the reports that MobiHand produces for the Content Distribution Service.
Payments. MobiHand will pay to Content Provider 90% of Net Receipts for sale of Content Provider's Content processed under this Service at the website of Content Provider. Further, MobiHand will pay to Content Provider 18% of Net Receipts for sale of Third-Party Content to Customers who obtain and pay for such Third-Party Content at the website of Content Provider.
Service Description
Mobile Device Electronic Commerce Service
Service Summary. MobiHand operates electronic commerce systems that are accessible by Customers through web pages designed for viewing on mobile devices or through screens presented within content provided by content providers who enroll in the Service. The commerce system includes a secure order process, credit card billing, Content downloads, communication to the content provider of orders requiring fulfillment, and real-time and monthly sales reporting. MobiHand processes payment transactions and pays the applicable portion of the amounts collected to the content provider..
Service Enrollment. To enroll in the Mobile Device Commerce Service, Content Provider must (i) be already enrolled in MobiHand's Content Distribution Service, including uploading Content to MobiHand's system, (ii) request this service by electronic mail to "partners@mobihand.com", and (iii) make links to the Service accessible to Customers either by including them in Content or by communicating them through email messages, website pages or other means.
Third-Party Content. At Content Provider's option, content products of third-parties who have authorized MobiHand to distribute their products ("Third-Party Content") may be made available for purchase along with Content Provider's Content. Content Provider agrees that neither this Agreement nor any activities related to this Agreement shall give Content Provider any rights in or to such Third-Party Content, including copyrights, patents, trademarks, and trade secrets
Pricing. The retail price for each item of Content entered in MobiHand's system in connection with the Content Distribution Service shall apply to this Service also.
Customer Support by Content Provider. All Customer support will be the responsibility of Content Provider.
Refunds. Refunds to customers will be made in accordance with MobiHand's return policy as described on its website. In addition, Content Provider may initiate refunds to resolve Customer service issues by instructing MobiHand to issue a refund.
License. MobiHand shall have a worldwide, non-exclusive right and license to copy Content and deliver such copies to Customers that access such Content through the links on Content Provider's website(s) and MobiHand shall have the right to collect payments from Content Provider's customers.
Reports. MobiHand will include and separately identify Electronic Commerce transactions in the reports that MobiHand produces for the Content Distribution Service.
Payments. MobiHand will pay to Content Provider 90% of Net Receipts for sale of Content Provider's Content processed under this Service through links provided by Content Provider. Further, MobiHand will pay to Content Provider 18% of Net Receipts for sale of Third-Party Content to Customers who obtain and pay for such Third-Party Content through links provided by Content Provider.
BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS SERVICE AGREEMENT, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER THIS SERVICE AGREEMENT, AND IF YOU ARE ENTERING THIS SERVICE AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR OTHER TYPE OF BUSINESS ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER THIS SERVICE AGREEMENT ON BEHALF OF SUCH ENTITY.
If you agree to be bound by the terms of this Service Agreement, please enter the following information about you and your company and click the accept button below.
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