Akaun.com Vendor Agreementdiana Filimonova2021-05-28T12:49:27+00:00
This Akaun.com Vendor Agreement (this "Agreement") is a binding agreement between Bigledger Sdn Bhd ("Bigledger", "we" or "us") and the individual or entity registering as a vendor or partner in the Akaun.com Marketplace ("Marketplace Partner" or "you"). If you are an individual using the Akaun.com Marketplace on behalf of your company, organization or other entity (for example, as an employee), then "you" means your entity and you are binding your entity to this Agreement.
Under this Agreement, you appoint and authorize Bigledger, as your commercial agent, to promote, sell, test and distribute Marketplace applets (as defined below) on the terms and conditions of this Agreement, and Bigledger accepts such appointment. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. The Akaun.com Marketplace is not intended for and may not be used by anyone under the age of 16.
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the Akaun.com Marketplace or (ii) by submitting any Marketplace App to the Akaun.com Marketplace.
Bigledger may modify this Agreement from time to time, subject to the terms in Agreement Changes below.
Introduction to the Akaun.com Marketplace
The Akaun.com Marketplace is a forum for connecting partners who make applets for Bigledger products with potential end users. applets can be written using the Akaun.com Platform. As a partner, you may charge a fee for your applets and designate whether end users may order your applets through Bigledger's ordering and license management system (in which case revenue sharing will apply) or directly from you (in which case there will be no revenue sharing with Bigledger). You may also offer your applets free of charge under certain circumstances.
Key Definitions
"Akaun.com Marketplace" or "Marketplace" means Akaun.com or any other webpage, application, interface, service or in-product experience at which Bigledger makes available or lists applets.
"Bigledger Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by Bigledger. Nothing contained herein shall grant you any ownership right in the Bigledger Marks or any other Bigledger intellectual property.
"Akaun.com Platform" has the meaning given in the Bigledger Developer Terms.
"End User Data" means any data, content or information of an end user that is accessed, collected or otherwise processed by you or your App in connection with use of the Akaun.com Marketplace.
"End User Privacy Policy" means a legally adequate privacy policy provided to each end user from whom you or your App collects, accesses, or otherwise processes End User Data.
"End User Terms" means a legally adequate agreement governing end user use of your applets.
"Marketplace applets" or "applets" means cloud and downloadable applications that are designed to interoperate with Bigledger's own software and cloud offerings (through use of the Akaun.com Platform) and that you deliver to Bigledger or make available through the Marketplace. "applets" also include any New Versions of existing applets.
"Marketplace Discount Programs" means the current Marketplace discounts listed at our Marketplace Discount Programs on the Partner Portal. Updates to Marketplace Discount Programs may be communicated to you from time to time via the Bigledger Developer Community, the Partner Portal or the Marketplace Guidelines.
"New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your applets.
"Partner Applet" means the online platform made accessible to Marketplace Partner by Bigledger on which Bigledger from time to time will communicate program details and changes, and provide sales tools and services, to Marketplace Partner. You can access the Partner Applet by activating your applicant status under 'Validate your status' on the Partner Portal landing page.
"Revenue Share" means the revenue based on the Marketplace Partner's Sale as displayed at the applicable Revenue Share page on the Partner Portal at the time of the Sale in accordance with Revenue Share below.
"Security Incident" means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your App or (c) issue involving your App that materially degrades Bigledger systems or networks.
"Similar Service" means, in relation to Paid-via-Bigledger applets, any online distribution service or channel (other than the Akaun.com Marketplace) that makes such applets available for sale, use or download to end users and/or channel partners, including any website or other distribution method operated by you.
Using the Marketplace to Publish Your applets
Types of applets
Currently, the Akaun.com Marketplace allows you to offer the following types of listings for Marketplace applets. You designate your listing type using your vendor account on the Akaun.com Marketplace (subject to approval by Bigledger), based on the options below:
Types of applets: Software vs. Cloud
Software applets
applets that are downloadable by end users from the Akaun.com Marketplace and designed to run in the akaun.com website.
Software applets include any "Server" or "Data Center" deployments of your applets, and Data Center approved applets (learn more about Data Center approved applets here.)
Cloud applets
applets hosted by Marketplace Partner or Marketplace Partner's agent (unless Bigledger, in its discretion, chooses to host the App on Marketplace Partner's behalf) that are designed to be used with Bigledger's hosted services, such as Bigledger's Cloud offerings.
Listing Options: Free and Paid
"Free applets"
applets that you provide free of charge, which may be downloaded from the Akaun.com Marketplace, in all cases under circumstances specified by Bigledger. Free applets may be either Software applets or Cloud applets.
"Paid-via-Bigledger applets"
applets for which end users pay all fees to Bigledger (with Marketplace Partner receiving a Revenue Share as described in this Agreement, and Bigledger receiving the Revenue Share from end users as Marketplace Partner's commercial agent.) Paid- via-Bigledger applets may be either Software applets or Cloud applets. You must use Bigledger's licensing mechanisms for all Paid-via-Bigledger applets. For Paid-via-Bigledger applets that are Software applets, end users will receive license keys from Bigledger.
This Section Financial Terms shall only apply to Paid-via-Bigledger applets.
List Price.
Generally. Subject to the remainder of this Section and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Paid-via-Bigledger applets (the "List Prices"). Bigledger will determine the pricing for renewals, upgrades that add more licenses/end users, New Versions and other support and maintenance ("Follow-on Sales"), all in accordance with its standard formulas and policies. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Bigledger App (or related content or services) through the Bigledger Marketplace, including any Follow-on Sales.
Marketplace Discount Programs. If you are participating in our Marketplace Discount Programs, eligible end users may purchase your Paid-via-Bigledger App at the applicable discount to the List Price as described in our Marketplace Discount Programs page. Certain Marketplace Discount Programs apply automatically and are required for all applets as described on such a page. Separately, Bigledger may offer discounts from List Price for Sales through Bigledger Partners as described in Sales through Bigledger Partners and Your Channel Partners.
Similar Services. Subject to Sales through Bigledger Partners and Your Channel Partners, you agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Paid-via-Bigledger App (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Bigledger App available for sale through any Similar Service. You will update the List Price for each Paid-via-Bigledger App as necessary to ensure that it meets the requirements of this Section.
Subject to this Agreement, for each Sale, except as otherwise expressly agreed by Bigledger in writing, Bigledger will pay you the applicable Revenue Share for the Sale. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Bigledger has received final payment from or on behalf of an end user. If an App is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. The current Revenue Share pages are available at developer.Bigledger.com and may be amended from time to time by Bigledger. Any changes or updates to the Revenue Share will be effective 30 days after notice.
Unless otherwise specified in the Marketplace Guidelines, you will designate your List Price in Malaysia Ringgit (MYR) and Bigledger will make all Revenue Share payments to you in MYR.
Payment by Bigledger
Subject to the terms of this Agreement, approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, Bigledger will pay you the Revenue Share due to you and provide you with a report that gives further information about your Sales of your Paid-via-Bigledger applets. You agree to provide Bigledger with information on a valid bank account in your name, and Bigledger will make payments to that account via Electronic Funds Transfer ("EFT"). Bigledger is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least MYR 2,500.00. You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section are solely your responsibility.
Refunds; Withholding of Revenue Share
Bigledger may issue refunds of the applicable Sale amount (or portions thereof) to end users or Bigledger Partners in its sole discretion. If Bigledger issues a refund prior to paying you the Revenue Share for the applicable Sale, then you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded. In addition, if Bigledger pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), Bigledger may offset the amount of the Revenue Share that Bigledger previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to Bigledger. Bigledger may also withhold and offset sums you owe to Bigledger against amounts that are payable to you. When this Agreement terminates, Bigledger may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure Bigledger's ability to offset any end user refunds or make any other offsets to which Bigledger is entitled.
Use of Certain Information
Bigledger shall only use your banking and payment information for purposes related to this Section Financial Terms. Bigledger shall not disclose your sales and related financial data to third parties except agents and contractors acting on Bigledger's behalf and except as required by Laws. The foregoing sentence notwithstanding, Bigledger may use or disclose aggregated sales and other financial data related to the Bigledger Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
Bigledger is responsible for collecting and remitting any taxes imposed on sales of Paid-via-Bigledger applets to end users. You are responsible for any income or other taxes due and payable resulting from Bigledger's payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. Bigledger maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from Bigledger, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
Sales through Bigledger Partners and Your Channel Partners
Bigledger has a network of partners who are authorized to resell licenses or subscriptions to Bigledger products (each, an "Bigledger Partner" as described here). You hereby acknowledge that, unless you opt out from allowing Bigledger Partners to resell your Paid-via- Bigledger applets, Bigledger Partners will be entitled to purchase your Paid-via-Bigledger App at a discount to the List Price for resale or provision to end users, with the amount of such discount determined at Bigledger's sole discretion and set forth in the Partner Portal, not to exceed fifty percent (50%) of the List Price. If you make a Paid-via-Bigledger App that is listed in the Marketplace available to a third party channel partner on a Similar Service at a discount to List Price, you may do so without violating Section List Price above, as long as such discount does not exceed the discount available to the same third party channel partner in the Bigledger Marketplace. Bigledger Partners' discounts may be communicated to you from time to time via the Partner Portal or the Marketplace Guidelines. If you opt out from allowing Bigledger Partners to resell your Paid-via-Bigledger applets, then you may not offer such products at a discount to List Price to third party channel partners on a Similar Service.
Your Content; License to Bigledger; End User Licensing
Delivery of Your Content
You will deliver Marketplace applets to Bigledger on or prior to the initial availability date you designate for the Marketplace App (the "Initial Availability Date"). Together with delivery of each Marketplace App, you will also provide the following information and materials: (a) Marketplace App title, Initial Availability Date, category, Marketplace Partner name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Marketplace applets that Bigledger requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Marketplace App that you wish to appear in connection with your App; (c) your End User Terms and End User Privacy Policy; and (d) in the case of Cloud applets, a JSON descriptor (Bigledger-connect.json) of the App ("JSON Code") ((a)-(d), collectively, "Product Information"). Together, the Marketplace applets and Product Information are "Content".
Exception for Cloud applets. Notwithstanding the foregoing, if Bigledger is not hosting a Cloud App, then you are not required to deliver the App itself to Bigledger. However, you must still deliver the JSON Code and the rest of the Product Information to Bigledger pursuant to the preceding paragraph.
You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide Bigledger with corrections, updates, or modifications.
You will ensure that all Content complies with this Agreement, including Bigledger's Marketplace Guidelines (which are hereby incorporated into this Agreement). However, this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or any additional policies included or referenced in the Marketplace Guidelines. In your activities under this Agreement, you also agree to comply with the Bigledger Acceptable Use Policy (as may be modified from time to time by Bigledger).
License Grant to Bigledger
You hereby grant Bigledger, during the Term and thereafter in accordance with Section Term and Termination, the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:
to resell, distribute or make available (including via download), as applicable, the Marketplace applets through the Bigledger Marketplace to end users (either directly or, unless you opt out, through Bigledger Partners) by all means of electronic distribution available now or in the future, except that this subsection (a) shall not apply to Free applets available for download only from your own website;
to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the Bigledger Marketplace and (ii) listings for your applets (and for Cloud applets, these rights also apply to use of the JSON Code in connection with Bigledger making available the relevant Bigledger Cloud product);
otherwise to use, store, copy and distribute your Content (i) for testing and evaluation conducted by Bigledger and its third party vendors; (ii) for purposes of exercising Bigledger's rights and fulfilling Bigledger's obligations hereunder; and (iii) for purposes of enforcing this Agreement and the Marketplace Guidelines;
to use your applets for Bigledger's own business purposes internally, within the scope for which the App's use is reasonably intended ("Internal Use License"). The Internal Use License applies to both Cloud applets and Software applets, but only applies to Software applets in object code form. Marketplace Partners may opt out of the Internal Use License by giving Bigledger notice thereof to sf-ecosystem@Bigledger.com.
License Clarifications
The licenses granted to Bigledger: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, as described in Section Term and Termination, to continue to retain and make available applets and Product Information to existing end users after the Term, and (iii) are granted under all applicable intellectual property rights (including patent rights).
End User Terms
You, not Bigledger, license your applets to end users, and you must provide your own End User Terms and End User Privacy Policy with any Marketplace App. Your End User Terms and End User Privacy Policy must comply with, and be consistent with, the terms and conditions of this Agreement. You agree that Bigledger does not and will not have any responsibility or liability related to compliance or non-compliance by you or any end user under the applicable End User Terms or End User Privacy Policy. In addition, unless otherwise specified in the Marketplace Guidelines, the license you offer for any App for use with an Bigledger Server Product (as opposed to Cloud or Data Center) must be perpetual.
During the Term, Marketplace Partner may use the Partner Portal to access Marketplace Guidelines, Bigledger Marks, marketing tools and services, and other Marketplace resources. Marketplace Partner may use such resources solely to exercise its rights and fulfill its obligations under this Agreement. To access the Partner Portal, Marketplace Partner may be required to activate or validate its status as a Marketplace Partner, as further specified on the Partner Portal landing page.
Delivery Commitments and Responsibilities related to End Users
Delivery Commitment
You will deliver electronically to Bigledger (and continue to make available during the Term) all versions of applets for which you have the rights required under this Agreement. You will deliver any New Versions to the Marketplace applets, together with any related Product Information, as soon as they are available. For Paid-via-Bigledger applets, you must deliver to Bigledger all of the same versions and editions of such App (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service.
For Cloud applets, subject to Section Effect of Termination; Transition you must also deliver all Product Information to Bigledger and make the Cloud App (including any New Versions) available to Bigledger and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all end users who have purchased such applets.
You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end users for your Marketplace applets during normal business hours (except in the case of Free applets, where you must provide the support you promise to end users). You will provide to Bigledger a current email address to which Bigledger may direct inquiries from end users regarding your Marketplace applets. You are solely responsible for providing all support for your Marketplace applets, and for providing to end users of your Marketplace applets all information necessary for their use of your Marketplace applets. At a minimum you agree to respond within 24 hours to any support request that Bigledger identifies as critical, and in all other cases within five business days of request from an end user or Bigledger.
Migration of Marketplace Partner End Users into Bigledger Marketplace
You may contact Bigledger at developer-relations@Bigledger.com in the event you desire to migrate your existing end users into the Bigledger Marketplace to manage future license management and renewals. If authorized by Bigledger, you will be provided access to Bigledger's migration API ("Migration API") pursuant to which you will enter the license information and details necessary for you to utilize the Bigledger Marketplace licensing mechanism for applicable end user. In connection with your use of the Migration API, you agree to only request license keys for your existing end users that began their respective license or maintenance period more than thirty-one (31) days prior to the date such license key is requested.
Reservations of Right
As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the Bigledger Platform or other Bigledger technology or materials used or included in the Content. Subject to your foregoing rights in the Content, Bigledger retains all right, title and interest in and to the Akaun.com Marketplace, Akaun.com Platform, all Bigledger products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
Additional Bigledger Marketplace Terms
Prohibited Actions; Responsibilities
You may not reverse engineer, disassemble or decompile any Bigledger code or technology used in connection with the Akaun.com Marketplace, including the Akaun.com Platform. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of Bigledger or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to Bigledger, the Akaun.com Marketplace, or Bigledger's product or services, or (3) by Bigledger or on behalf of Bigledger. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue Bigledger or the Marketplace.
Review of Marketplace applets by You
The Bigledger Marketplace allows you to post reviews of Marketplace applets offered by other vendors. Any review by you of a Marketplace App shall be made in good faith after reasonable evaluation of the full Marketplace App. You (including your employees and others acting on your behalf) may not review or comment on your own App or those of competitors. As an exception, you may provide informational responses to support requests or other inquiries directed to you within the reviews or comments section of your App. All reviews must comply with Bigledger's AUP, and Bigledger (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.
Bigledger Marketplace Operations
Bigledger maintains sole discretion to determine all features and operations of the Bigledger Marketplace. You acknowledge that Bigledger has no obligation to promote, distribute, list or offer for Sale any Marketplace App, or to continue to do so. With respect to Paid-via-Bigledger applets only, Bigledger is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the Bigledger Marketplace will be processed by Bigledger's payment systems and will be subject to the Revenue Share terms above. Bigledger will have sole ownership and control of all Sales and other data Bigledger obtains from end users in connection with the Akaun.com Marketplace, but will make available certain End User Data (as defined below) to you.
End User Data and Privacy‐Related Obligations
End User Data. An end user may enable you or your applets to access End User Data. Based on the activities under this Agreement, Bigledger may provide you with access to End User Data.
Collection and Use. You must obtain all necessary rights, permissions, and consents from end users for your access, collection, storage, transmission, treatment, use, disclosure, sharing, and other processing of any End User Data, and will ensure that all such processing complies with your End User Terms, End User Privacy Policy, and all Laws. If you use our optional APIs or the Partner Portal to retrieve End User Data directly from Bigledger (e.g., end user contact information), you must limit your access and processing of such information to that (a) authorized by the end user or (b) necessary for the purposes of providing the functionality of your App. You may not sell any End User Data. Bigledger shall not be liable for, or have any responsibility in connection with, End User Data processed by you or your App, and such activities with regard to End User Data are not in any way by or on behalf of Bigledger.
End User Communications. You may use End User Data to communicate directly with end users only where required by Law or as consented to or requested by the end user. But you may not send marketing messages to end users within any user experience integrated with Bigledger Products without Bigledger's express written consent.
End User Terms. You must ensure end users agree to your End User Terms, which must comply with all Laws.
End User Privacy Policy. You must provide a clear, complete, and conspicuous End User Privacy Policy which notifies end users that you (and not Bigledger) are responsible for the privacy, security, and integrity of any End User Data processed by you or your App. Your End User Privacy Policy must provide clear and complete information to end users regarding your access, collection, and processing of End User Data, with whom you share End User Data, and in which country or countries the End User Data will be stored (along with other disclosures required by Laws). You must comply with the terms and conditions of your End User Privacy Policy, and promptly notify end users and Bigledger of any material changes to it.
Security. You must use industry-standard security measures appropriate for all End User Data and your processing activities, adequate to preserve End User Data's confidentiality and security and comply with all Laws. You will also comply with any security, coding practices, authentication or encryption requirements for applets in the Security Requirements. You agree to remediate all security vulnerabilities identified to you by Bigledger within the timeframes described in the Security Requirements.
Security Incidents. Upon discovery or notice of any Security Incident, unless prohibited by Laws, you will promptly (within 24 hours) notify Bigledger via the ticket creation link at App Security Incident Management Guidelines. Your notice will provide Bigledger information about the Security Incident and how it may affect Bigledger Products, end users or End User Data, and you agree to provide further information and assistance related to the Security Incident described in the Marketplace Guidelines or as Bigledger may request. Without limiting your other obligations, in the event of a Security Incident, you will be solely responsible, at your own expense, for investigation, remediation and your own notifications to affected end users and regulatory authorities in accordance with Laws and industry standards. However, you must obtain Bigledger's approval for any breach notifications to end users that refer directly or indirectly to Bigledger. You must ensure that you have an updated contact name and contact information in your developer account for Security Incidents. Without limiting any other reserved rights of termination or suspension, Bigledger may de-list your App from the Bigledger Marketplace or suspend use of or access of your App to Bigledger products as a result of any Security Incident.
Security and Privacy Review. Bigledger, or an authorized third party selected by us, may conduct a security or privacy review of any App or its supporting infrastructure to ensure compliance with (i) security and privacy related sections of the Marketplace Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments. In addition, Bigledger reserves the right to request that you provide the source code for your App, but solely for the purpose of Bigledger conducting security and/or privacy tests. You agree to reasonably and promptly cooperate with such requests and reviews of your App and/or your App's supporting infrastructure (in the case of Cloud applets). Bigledger (itself or through third parties) may conduct new or additional App security scans beyond those described in this Section 8.4(f), in which case Bigledger will provide you at least 15 days prior notice and you may choose to opt-out of such scan with notice to Bigledger.
Bug Bounty Programs. Bigledger also manages bug bounty programs using third party service providers from time to time, as described at Marketplace Security Bug Bounty Program. If you choose to participate as described at such link, you give Bigledger the right to review your Marketplace applets in the bug bounty programs.
Providing feedback, comments or suggestions about the Bigledger Marketplace ("Feedback") to Bigledger is wholly voluntary. Bigledger may freely use Feedback for any purpose.
In addition to Bigledger's other rights, Bigledger may collect aggregated information regarding the Bigledger Marketplace and Marketplace applets (excluding any personally identifiable information). We will not provide information to any third party about Marketplace applets, or end users purchasing Marketplace applets, except as necessary for us to perform our obligations under this Agreement, or otherwise provide the products or services to our end user under the applicable Cloud Terms of Service, Bigledger Software License Agreement or our other applicable customer agreements.
Bigledger Control of Marketplace
Bigledger may determine in its sole discretion to make available or list any Marketplace App through the Akaun.com Marketplace, or to remove any App from the Akaun.com Marketplace. Bigledger may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace App in the Akaun.com Marketplace does not relieve you of responsibility to ensure the Marketplace App complies with this Agreement or to perform other obligations under this Agreement.
Bigledger Developer Terms
Marketplace applets can be written or developed using the Akaun.com Platform (as described in the Bigledger Developer documentation), and the development of applets is subject to the separate Bigledger Developer Terms. The Bigledger Developer Terms govern your use of the Akaun.com Platform and the creation and operation of applets (or "Add-ons") generally, while this Agreement contains terms specific to the Marketplace and any applets you choose to submit to the Marketplace. Nothing in this Agreement changes the Bigledger Developer Terms (including any referenced policies or API call limits), and you and your applets must continue to comply with the Bigledger Developer Terms. However, in the event of a direct conflict between this Agreement and the Bigledger Developer Terms, this Agreement will govern with respect to activities on the Marketplace.
The term of this Agreement (the "Term") will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or Bigledger terminates it.
Termination Rights
Either Bigledger or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular applets, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party's intellectual property rights.
Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by Bigledger at the time), Bigledger may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular applets) under the following circumstances: (i) Bigledger ceases to operate the Marketplace, (ii) you violate Bigledger's AUP, (iii) Bigledger suspends or terminates the Bigledger Developer Terms as relates to you or your App(s), or (iv) Bigledger determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to Bigledger or any third party or otherwise harm the Marketplace or other Marketplace partners or users.
Effect of Termination; Transition
Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your App from the Marketplace, (i) in Bigledger's discretion, Bigledger may continue to fulfill any end user orders for applets pending as of the date the termination takes effect, and (ii) Bigledger will use reasonable efforts to take down the listing for your App within forty-five (45) days after the effective date of termination (or, if specified by Bigledger, within the same period after notice of termination) (the "Transition Period"). Bigledger may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your App, for its own record-keeping purposes.
End User Rights. Unless otherwise specified by Bigledger, all end user licenses and subscriptions to applets (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable End User Terms. As such, Bigledger may continue to make available any applets for further access, downloads or re-downloads by existing end users of those applets for the duration of their applicable license, subscription or maintenance term (including after the Transition Period) (the "Surviving Term"), either directly or through Bigledger Partners.
Your Transition Obligations. If you are a Marketplace Partner of Paid-via-Bigledger applets, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for doing the following, consistent with Bigledger's guidance and instructions:
for Cloud applets, making the App (including any New Versions) available to Bigledger and Marketplace users on a hosted basis at least until the conclusion of any Surviving Terms for all end users who have purchased such applets;
taking all actions necessary to move existing end users with Surviving Terms to your non-Bigledger license mechanism, including, as applicable: (i) providing an equivalent product that integrates to Bigledger applications without the use of Bigledger Connect, (ii) contacting end users and providing access, installation and migration instructions, and equivalent license terms and key, and/or (iii) providing end users with data migration tools and migration assistance;
arranging to provide for ongoing support and maintenance (including New Versions) with respect to your applets for all end users who have purchased such rights for the duration of the term for which you have committed to provide such support and maintenance; and
communicating such matters accurately and in a positive and professional manner to end users.
For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated App to Bigledger for distribution under this Agreement thereafter, but Bigledger's post-termination rights in this Section 11.3 will apply for the latest version of the App you provided to Bigledger hereunder (and any prior version).
You represent, warrant and covenant that:
You are at least 18 years of age and are able to form a legally binding contract. If Marketplace Partner is a business or other legal entity and not an individual, then the individual entering into this Agreement on Marketplace Partner's behalf represents that he or she has all necessary legal authority to bind Marketplace Partner to this Agreement;
You have the full right, power, and authority to enter into and fully perform this Agreement;
Before providing Bigledger any Content or listing Content in the Bigledger Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
You will immediately notify Bigledger if you lose any IP rights related to your Marketplace applets or become aware of a third party claim related to these rights;
Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code ("Viruses"), and will not cause injury to any person or damage to any property; and
You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your End User Terms) based on your use of third party "open source" software or other third party intellectual property in any App. You will also promptly make available to Bigledger, end users and any other third party that is entitled to it, the source code corresponding to any App or portion thereof if required, and in the manner required, by applicable third party terms and conditions. Bigledger's use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
By Bigledger
Subject to the terms and conditions of this Agreement: (1) Bigledger shall defend a Marketplace Partner of a Paid-via-Bigledger App from claims by third parties alleging that the Bigledger Marketplace itself, when used in connection with such App, infringes such third party's United States, European Union, or EU member state registered copyright or trademark and (2) Bigledger shall pay damages finally awarded by a court of competent jurisdiction against such Marketplace Partner for such a claim or, if Bigledger settles the claim, the settlement amounts. Bigledger's obligations in this Section 13.1 apply only to the Bigledger Marketplace itself and not to any Marketplace applets, the Bigledger Platform, other Bigledger products or services, or other third party content hosted on or used with the Bigledger Marketplace, and in any case Bigledger's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the Bigledger Marketplace. As a condition to Bigledger's obligations under this Section 13.1, you must provide Bigledger (i) prompt written notice of the claim (and in any event notice in sufficient time for Bigledger to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 13.1 sets forth Bigledger's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
You will indemnify, defend and hold Bigledger and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of any third party claim relating to any (i) Content or the use of Content (including any claims made by or arising from end users), (ii) your breach or alleged breach of this Agreement, or (iii) any Security Incidents caused by your applets or third party services supporting your applets (individually, a "Claim," and collectively, the "Claims"). In any defense or settlement negotiations, you will keep Bigledger apprised of all relevant developments, including the choice of counsel. Bigledger may participate in the defense or settlement of any Claim at its own expense. You will provide Bigledger with reasonable notice of any judgment entered against Bigledger or any settlement terms offered to settle a Claim and you will not consent to the entry of a judgment or settle a Claim without Bigledger's prior written consent, which we may not unreasonably withhold. If you do not promptly assume and reasonably conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then Bigledger may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 13.2 are independent of your other obligations under the Agreement.
Bigledger Confidential Information
All information disclosed by Bigledger that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is "Confidential Information". Confidential Information includes non-public aspects of the Bigledger Marketplace and Bigledger's applications; non-public aspects of third-party applications listed in the Bigledger Marketplace to which you obtain access as a result of the relationship between you and Bigledger under this Agreement; non-public End User Data provided to you by Bigledger; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and Bigledger under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Bigledger or anyone else.
During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide Bigledger with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Bigledger's cost, if Bigledger wishes to contest the disclosure.
Injunctive Relief
In event of actual or threatened breach of this Section 14, Bigledger shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
Independent Development; Information You Provide Is Not Confidential.
Bigledger develops its own products and services and works with many other partners and developers, and either Bigledger or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your applets. Subject to Bigledger's obligations relating to your financial data in Section 4.6 and App source code in Section 8.4(f) and the terms of any applicable mutually-agreed non-disclosure agreement, nothing limits Bigledger or such third parties from doing so, and Bigledger has no confidentiality obligations for information you submit in connection with this Agreement.
Bigledger Trademarks/Publicity/Intellectual Property
You will not violate Bigledger intellectual property in any form, including Bigledger patents, trademarks, copyrights, and trade secrets. You will: (i) only use the Bigledger Marks in the form and manner as set forth in Bigledger's Trademark Guidelines, Marketplace Brand Guidelines and AdWords Trademark Policy and only in connection with the sale of your Marketplace applets in the Bigledger Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, Bigledger retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that Bigledger communicates to you regarding the use of Bigledger Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any Bigledger Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the Bigledger Marks, unless you are otherwise authorized to continue using the Bigledger Marks pursuant to a separate written agreement with Bigledger.
THE Bigledger MARKETPLACE, Bigledger MARKS AND ALL Bigledger DEVELOPER ASSETS ARE PROVIDED "AS IS" AND Bigledger EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE AND EXCEPT FOR MARKETPLACE PARTNER'S BREACH OF SECTION 8.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 8.4 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 14 (CONFIDENTIALITY): (A) NEITHER YOU NOR Bigledger SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR Bigledger'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE Bigledger MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED Bigledger'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, "Bigledger'S MARGIN" MEANS THE AMOUNTS RECEIVED BY Bigledger FROM SALES OF YOUR applets, MINUS THE REVENUE SHARE Bigledger HAS PAID YOU.
Basis of Bargain; Failure of Essential Purpose
The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
Agreement Changes
As the Bigledger Marketplace evolves over time, we may need to update this Agreement. Therefore, Bigledger reserves the right to change this Agreement at any time in its sole discretion with the changes to the Agreement becoming effective thirty (30) days after notice (unless Bigledger specifies a shorter notice period). Bigledger will give you notice of the changes by posting an updated version of this Agreement on its website or within the Marketplace, or by emailing you at an email address you have provided. If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to Bigledger and (ii) withdrawing all of your applets from the Marketplace. If you terminate this Agreement according to the preceding sentence, the changes will not apply to you. Otherwise, your continued participation in the Bigledger Marketplace after the changes take effect will constitute your acceptance of the changes. In addition, you may be required to click to agree to the modified Agreement to continue participating in the Marketplace.
Dispute Resolution; Governing Law
Informal Resolution
In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Governing Law; Jurisdiction. All negotiations pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
This Agreement will be governed by and construed in accordance with the applicable laws of the Malaysia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Malaysia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Malaysia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
Injunctive Relief; Enforcement
Notwithstanding the provisions of Section Informal Resolution and Governing Law; Jurisdiction, nothing in this Agreement will prevent Bigledger from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
This Agreement may not be amended except in writing signed by both parties or as provided in (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word "including" will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or partners, despite use of the term "Partner". Each party will bear its own costs and expenses in performing this Agreement. Bigledger's failure to enforce any provision of this Agreement will not constitute a waiver of Bigledger's rights to subsequently enforce the provision. Bigledger may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Bigledger's affiliates, contractors and service providers may exercise all rights of Bigledger under this Agreement, including Bigledger's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Bigledger's prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give Bigledger written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that Bigledger determines that such assignment is to a competitor of Bigledger, Bigledger may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by Bigledger via email, via a posting in the Marketplace Guidelines, via the Partner Portal, or via a message through your my.Bigledger.com account, or (ii) by you via email to legal@Bigledger.com or to such other email or physical addresses as Bigledger may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.