This Moboom Market Publisher Agreement (this "Agreement") is between Moboom Ltd. ("Moboom") and you (if registering as an individual) or the entity you represent (if registering as a business) ("Publisher" or "you") as a Publisher in the Moboom Market. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. Under this Agreement, you authorize Moboom, among other things, to promote, resell, test and distribute Market Extensions (as defined below).
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by 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 Moboom Market.
1. Introduction to the Moboom Market
The Moboom Market is a forum for connecting Publishers who make Extensions for the Moboom platform with potential customers. Extensions can be written using Moboom SDKs. As a Publisher, you may charge a fee for your Extensions or you may offer your Extensions free of charge (the latter, "Free Extensions").
2. Key Definitions
2.1. "Moboom Market" or "Market" means any location at which Moboom makes available or lists Market Extensions, which may include http://market.moboom.com or any other webpage, application, mobile interface, service or user interface that allows for the discovery, download or purchase of Extensions.
2.2. "Market Extensions" or "Extensions" means the Extensions, extensions, plugins or other software that you deliver to Moboom or make available through the Market. Extensions can take a physical form such as widgets or site templates or can have a non-physical fulfillment such as services. "Extensions" also include any New Versions.
2.3. "Market Guidelines" means the terms, rules and policies that Moboom makes available at http://moboom.com/market-publisher-agreement setting forth requirements (as may be modified by Moboom from time to time) for including your Market Extensions in the Moboom Market.
2.4. "New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Extensions.
3. Using the Market to Publish Your Extensions
3.1. Types of Extensions. Currently, the Moboom Market allows you to offer the following types of listings for Market Extensions. Most Extension types are considered to be paid through the Moboom platform ("Paid-Via-Moboom") and the User via Moboom Market will pay all applicable fees. Extensions are split into two groups: “Physical” and “Non-Physical”. You designate your listing type using your Publisher account on the Moboom Market (subject to approval by Moboom). The Extensions are described further below:
3.1.1. "Site Templates" are Physical Extensions that contain all of the parts of working website intended to be the starting point for a customer’s website. These are typically customized with a customer’s content such as text, pictures and other content. If there is a fee for these Extensions, it is paid to Moboom via the Market.
3.1.2. "Widgets" are Physical Extensions contain a single part of a web page such as an image slider, video player or blog roll. These widgets are configurable by the customer on their website. If there is a fee for these Extensions, it is paid to Moboom via the Market.
3.1.3. "Content" are Physical Extensions containing text, images or structured data to be used on a customer website using widgets. If there is a fee for these Extensions, it is paid to Moboom via the Market.
3.1.4. "Modules" are Physical Extensions to be managed or configured in the SiteStudio and provide new functionality for a SiteStudio user. These modules typically work with specific widgets, content or integrations and sometimes API calls to third-party systems. If there is a fee for these Extensions, it is paid to Moboom via the Market.
3.1.5. "Integrations" are Physical Extensions with little or no management interface in the SiteStudio. These extensions are designed to provide integration points with third-party systems, applications or platforms. Typically these Extensions provide hooks into the platform. If there is a fee for these Extensions, it is paid to Moboom via the Market.
3.1.6. A "In-Market Services" are Non-Physical Extensions or services offered to prospective customers for which fees are paid to Moboom and dispersed to the Publisher. Any Service you intend to include thru a sign-up process or bundle must be set with this extension type.
3.1.7. A "Out-of-Market Services" are Non-Physical Extensions or services for which users pay all of the fees to the Publisher (not Moboom). Orders for this type of extension are delivered to the Publisher’s designated lead email address and fulfilled by the Publisher.
4. Financial Terms
This Section 4 (Financial Terms) shall only apply to Moboom Extensions.
4.1. List Price. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for sales, licenses or subscriptions to your Paid-via-Moboom Extensions (the "List Prices"). 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-Moboom Extension (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Moboom Extension available for sale through any Similar Service. You will update the List Price for each Paid-via-Moboom Extension as necessary to ensure that it meets the requirements of this Section 4.1.
4.2. Physical Revenue Share. For each Sale, Moboom will pay you an amount ("Revenue Share") equal to seventy percent (70%) of the amount received by Moboom from the Sale. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Moboom Extension (or related content or services) through the Moboom Market, including any Follow-on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Moboom has received final payment from or on behalf of an end user. If an Extension 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. For purposes of clarity, in the event Moboom refunds the applicable Sale amount (or a portion thereof) to an end user (which you agree that Moboom can do entirely in its own discretion), 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.
4.2.1 Non-Physical Revenue Share. For each Sale, Moboom will pay you an amount ("Revenue Share") equal to ninety percent (90%) of the amount received by Moboom from the Sale. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Moboom Extension (or related content or services) through the Moboom Market, including any Follow-on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Moboom has received final payment from or on behalf of an end user. If an Extension 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. For purposes of clarity, in the event Moboom refunds the applicable Sale amount (which you agree that Moboom can do entirely in its own discretion), 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.
4.3. Payment by Moboom. Subject to the terms of this Agreement (including Section 4.5 for GST Registered Publishers), approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, Moboom will make available to you a report detailing Sales of Paid-via-Moboom Extensions and corresponding Revenue Share along with payment of the Revenue Share due in connection with such report. All payments will be made in US dollars ("$"). You agree to provide Moboom with information on a valid bank account in your name, and Moboom will make payments to that account via Electronic Funds Transfer ("EFT"). Moboom 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 $500.00. If Moboom 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), Moboom may offset the amount of the Revenue Share that Moboom 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 Moboom. Moboom may also withhold and offset sums you owe to Moboom against amounts that are payable to you. You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.3 are solely your responsibility. When this Agreement terminates, Moboom 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 Moboom's ability to offset any end user refunds or make any other offsets to which Moboom is entitled.
4.3.1. Use of Certain Information. Moboom shall only use your banking and payment information for purposes related to this Section 4 (Payment Terms). Moboom shall not disclose your sales and related financial data to third parties. The foregoing sentence notwithstanding, Moboom may use or disclose aggregated sales and other financial data related to the Moboom Market, which may include your sales and related financial data but does not identify you or your data specifically.
4.4. Taxes. Except as described in this Agreement (including Section 4.5 for GST Registered Publishers), Moboom is responsible for collecting and remitting any taxes imposed on sales of Paid-via-Moboom Extensions to end users. You are responsible for any income or other taxes due and payable resulting from Moboom'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. Moboom maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from Moboom, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
4.5. Publishers Required to Register Under Australian GST Rules. Notwithstanding any conflicting terms above in this Section 4, if you are a Publisher ("GST Registered Publishers") that is registered or required to be registered for Australian Goods and Services Tax ("GST"), prior to Moboom's payment to you, you acknowledge that you are required to issue a tax invoice to Moboom to comply with Australian GST rules. However, in the interests of administrative simplicity, you and Moboom agree that Moboom will issue recipient created tax invoices ("RCTIs") for taxable supplies made under this Agreement (together with the report and payment described in Section 4.2) and that you will not issue tax invoices for those supplies. For the purposes of issuing RCTIs, both parties acknowledge that they are GST Registered Publishers and will notify each other if that ceases to be the case. Notwithstanding this Section 4.5 with respect to RCTIs, you acknowledge that you remain responsible for filing a GST return and passing any GST received (including GST received from Moboom in connection with the RCTIs) onto the Australian Tax Office in accordance with your individual circumstances.
5. Your Content; License to Moboom; End User Licensing
5.1. Delivery of Your Content. You will deliver Market Extensions to Moboom on or prior to the initial availability date you designate for the Market Extension (the "Initial Availability Date"). Together with delivery of each Market Extension, you will also provide the following information and materials: (a) Market Extension title, Initial Availability Date, category, Publisher name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Market Extensions that Moboom 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 Market Extension that you wish to appear in connection with your Extension; and (c) any Publisher EULA (defined below); ((a), (b), and (c) collectively being the "Product Information"). Together, the Market Extensions and Product Information are "Content".
5.1.1. Exception for Service Extensions. Notwithstanding the foregoing, if Moboom is not hosting a Service Extension, then you are not required to deliver the Extension itself to Moboom. However, you must still deliver the rest of the Product Information to Moboom pursuant to the preceding paragraph.
5.2. Accuracy. 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 Moboom with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including Moboom's Market Guidelines (which are hereby incorporated into this Agreement). The Market Guidelines may include (or reference) terms and conditions for creation or operation of Extensions, such as policies for development of Extensions for particular Moboom products, Moboom SDK usage terms, API call limitations for Physical Extensions or other integration requirements. You must comply with all such terms. Nonetheless, the express terms and conditions of this Agreement will control in the event of any direct conflict with the Market Guidelines or such included (or referenced) terms, but only with respect to the subject matter of this Agreement. In your activities under this Agreement, you also agree to comply with the Moboom Acceptable Use Policy (as may be modified from time to time by Moboom) (the "AUP").
5.4. License Grant to Moboom. You hereby grant Moboom, during the Term (and thereafter in accordance with Section 10 (Term and Termination)), the nonexclusive, royalty‐free (subject to payment of any applicable Revenue Share), worldwide right and license:
5.4.1. to resell, distribute or make available as applicable, the Market Extensions through the Moboom Market to end users (either directly or through Moboom Partners) by all means of electronic distribution available now or in the future;
5.4.2. 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 Moboom Market and (ii) listings for your Extensions; and
5.4.3. otherwise to use, store, copy and distribute your Content for testing and evaluation purposes; for Moboom's use internally, in object code format (which Moboom agrees not to decompile or reverse engineer), within the scope for which the Extension's use is reasonably intended ("Internal Use License"); for purposes of exercising Moboom's rights and fulfilling Moboom's obligations hereunder; and for purposes of enforcing this Agreement and the Market Guidelines.
5.5. License Clarifications. The licenses granted to Moboom in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, consistent with Section 10 (Term and Termination), after the Term to retain one or more electronic copies of each Market Extension and its associated Product Information and allow and downloads and re‐downloads of and access to Market Extensions by end users (either directly or through Moboom Partners), and (iii) are granted under all applicable intellectual property rights (including patent rights).
6. Delivery Commitments and End User Responsibilities
6.1. Delivery Commitment. You will deliver electronically to Moboom (and continue to make available during the Term) all versions of Market Extensions (i) that have been designed to integrate or interface with one or more Moboom products through an internal programming interface ("APIs") made available by Moboom for this purpose, (ii) for which you have the rights required under this Agreement, and (iii) that are the same versions and editions (except as otherwise provided in this Agreement) that you or your affiliates make available directly or indirectly through any Similar Service. You will deliver any New Versions to the Market Extensions, together with any related Product Information, as soon as they are available. For Paid-via-Moboom listings, the Initial Delivery Date and the date of delivery of any New Versions must be no later than the first date you permit the corresponding version of the Market Extension to be listed for sale on any Similar Service. As mentioned above, if Moboom is not hosting a Physical Extension, then you are not required to deliver the Extension itself to Moboom.
6.1.1. You must also deliver all Product Information to Moboom and make the Physical Extension (including any New Versions) available to Moboom and Market users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Extensions.
6.2. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end user customers for your Market Extensions during normal business hours. You will provide to Moboom a current email address to which Moboom may direct inquiries from users regarding your Market Extensions. You are solely responsible for providing all support for your Market Extensions, and for providing to users of your Market Extensions all information necessary for their use of your Market Extensions. At a minimum you agree to respond within 24 hours to any support request that Moboom identifies as critical, and in all other cases within five business days of request from an end user or Moboom. Notwithstanding the foregoing, you are not obligated to provide support for Free Extensions.
7 Reservations of Rights
Subject to the rights granted in this Agreement and Moboom's ownership of certain software, APIs, documentation and related materials (the "Moboom Materials") to which Moboom provides you access, as between you and us, you retain all right, title and interest in and to Content that you deliver to us. Subject to your rights in such Content, Moboom retains all right, title and interest in and to the Moboom Market, Moboom Materials, Moboom applications and other Moboom products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8. Additional Moboom Market Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any binary code used in connection with the Moboom Market, including any Moboom Materials that Moboom provides you. 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 Moboom 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 Moboom, the Moboom Market, or Moboom's product or services, or (3) by Moboom or on behalf of Moboom. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue Moboom or the Market.
8.2. Review of Market Extensions by You. The Moboom Market allows you to post reviews of Market Extensions. Any review by you of a Market Extension shall be made in good faith after reasonable evaluation of the full Market Extension. If you post a review of your Market Extension, you shall disclose your identity and the fact that the Market Extension being reviewed is your Market Extension. If you post a review of a competitor's Market Extension, you shall disclose your identity and the fact that you publish a competitive Market Extension. All reviews must comply with Moboom's AUP, and Moboom (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.
8.3. Moboom Market Operations. Moboom maintains sole discretion to determine all features and operations of the Moboom Market. You acknowledge that Moboom has no obligation to promote, distribute, list or offer for Sale any Market Extension, or to continue to do so. With respect to Paid-via-Moboom Extensions only, Moboom 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 Moboom Market will be processed by Moboom's payment systems and will be subject to the Revenue Share terms above. Moboom will have sole ownership and control of all Sales and other data Moboom obtains from end users in connection with the Moboom Market, but will make available certain End User Data to you, subject to Section 8.4.
8.4. End User Data and Privacy-Related Obligations. In addition to sales data related to your Paid-via-Moboom Extensions, Moboom will provide you with access to certain information provided to Moboom by end users of your (a) Paid-via-Moboom Extensions and (b) Free Extensions available through the Moboom Market, including end user name, company name (if any), physical or email addresses, and phone numbers ("Moboom-Collected End User Data"). Based on the activities under this Agreement, subject to the provisions of this Section 8.4, you may also collect other information or data from end users, some of which may include personally identifiable information ("Publisher-Collected End User Data"). Any end user data or information, whether Moboom-Collected End User Data or Publisher-Collected End User Data, is, collectively "End User Data". For all End User Data you will (i) use and authorize others to access and use the End User Data only for the purposes of providing and improving the functionality and user experience of your Market Extension(s), marketing your Market Extension to end users or such other purposes expressly permitted by the end user (in each case, in compliance with all Laws), and not modify any End User Data in a manner that adversely affects it integrity, and (ii) treat, store, transmit, disclose and use the information only in accordance with applicable privacy notices and laws, rules, regulations, orders, and other requirements of governmental agencies (together, "Laws"). Without limiting the foregoing and with respect to Publisher-Collected End User Data, you shall (x) provide legally adequate privacy notices to each end user and obtain all necessary consents under Law and (y) notify end users that Moboom is not responsible for the privacy, security or integrity of Publisher-Collected End User Data. You shall also maintain and handle all of the End User Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable Laws. For the sake of clarity, Moboom shall not be liable for or have any responsibility in connection with Publisher-Collected End User Data.
8.5. Export. Moboom is relying on your accurate determination of your Market Extension's export status and your compliance with all export laws. You hereby represent, warrant and certify that, if applicable, (1) your Market Extensions are authorized for export from the United States to each country to which you permit them to be distributed or made available through the Moboom Market, in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774; and (2) either (i) the Market Extensions do not contain, use or support any data encryption or cryptographic functions ("Encryption Technology") or (ii) you have qualified each Market Extension containing, using or supporting Encryption Technology for export as a "mass market encryption item" in accordance with 15 C.F.R Part 742.15(b)(2) and will provide Moboom with a copy of the applicable mass market export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Security. If the US export control provisions above are not applicable to you, or in any event if non-US export control laws or regulations are applicable to you, you will notify Moboom of any non-US export control laws or regulations relevant to your Market Extensions, and you represent, warrant and certify to Moboom that you will comply with all applicable export laws and regulations.
8.6. Feedback. "Feedback" means any feedback, comments, suggestions, ideas, description of processes or other information that you may provide to Moboom from time to time about or in connection with Moboom Market, including any ideas, concepts, know-how or techniques contained therein. You hereby grant Moboom a worldwide, royalty-free, non-exclusive, assignable, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Moboom Market or any Moboom products, applications or services. You agree that Moboom may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise.
8.7. Aggregated Information. In addition to Moboom's other rights, Moboom may collect aggregated information regarding the Moboom Market and Market Extensions (excluding any personally identifiable information), including through the use of third party analytics tools such as Google Analytics ("Aggregated Information") and may exploit and use the Aggregated Information for any purpose without restriction.
9. Moboom Control of Market
Moboom may determine in its sole discretion to make available or list any Market Extension through the Moboom Market. Moboom 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 Market Extension in the Moboom Market does not relieve you of responsibility to ensure the Market Extension complies with this Agreement or to perform other obligations under this Agreement.
10. Term and Termination
10.1. Term. 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 Moboom terminates it.
10.2. Termination Rights. Either Moboom or you are entitled to terminate this Agreement and access to your account (and/or this Agreement with respect to any particular Extension(s)) 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 (a) 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, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party's intellectual property rights.
10.2.1. Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by Moboom at the time), Moboom may also terminate this Agreement (and/or terminate or suspend either your account on the Market or this Agreement with respect to any particular Extensions) under the following circumstances: (1) Moboom ceases to operate the Market, (2) you violate Moboom's AUP, or (3) Moboom determines (in its discretion) that your participation in the Market could result in legal or business liability to Moboom or any third party or otherwise harm the Market or other Market Publishers or users.
10.3. Transition. Following any termination or expiration of this Agreement or withdrawal of your Extension from the Market, in Moboom's discretion, (a) Moboom may continue to fulfill any end user orders for Extensions pending as of the date the termination takes effect, and (b) Moboom will use reasonable efforts to take down the listing for your Extension within forty-five (45) days after termination (the "Transition Period"), but in any event Moboom may continue to make available Paid-via-Moboom Extensions for further access, downloads or re‐downloads by existing end users of those Extensions for the duration of the end user's license or subscription to the Extension.
10.3.1. If you are a Publisher of Paid-via-Moboom Extensions, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible doing the following, consistent with Moboom's guidance and instructions:
10.3.1.1. for Physical Extensions, making the Extension (including any New Versions) available to Moboom and Market users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Extensions,
10.3.1.2. taking all actions necessary to move existing end users to your non-Moboom license mechanism, including, as applicable: (a) providing an equivalent product that integrates to Moboom applications without the use of Moboom SDKs; (b) contacting customers and providing access, installation and migration instructions, and equivalent license terms and keys; and/or (c) providing customers with data migration tools and migration assistance,
10.3.1.3. arranging for ongoing support and maintenance (including New Versions) for your Extensions for all end users who have purchased such rights, and
10.3.1.4. communicating such matters accurately and in a positive and professional manner to end users. If specified by Moboom, the Transition Period may commence upon a notice of termination rather than the effective date of termination. For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Extension to Moboom for distribution under this Agreement thereafter, but Moboom's post-termination rights in this paragraph will apply for the latest version of the Extension you provided to Moboom hereunder (and any prior version).
10.4. Effect of Termination; Survival. Unless otherwise specified by Moboom: (a) all EULAs and associated end user licenses and subscriptions to Extensions will survive termination or expiration of this Agreement in accordance with their terms and (b) Publisher will continue to host and operate any Physical Extensions for use by end users at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Extensions. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional Moboom Market Terms), and 10 (Term and Termination) through 19 (General).
11. Representations and Warranties
You represent, warrant and covenant that:
11.1. You are at least 18 years of age and are able to form a legally binding contract. If Publisher is a business or other legal entity and not an individual, then the individual entering into this Agreement on Publisher's behalf represents that he or she has all necessary legal authority to bind Publisher to this Agreement;
11.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
11.3. Before providing Moboom any Content or listing Content in the Moboom Market, 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;
11.4. 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;
11.5. You will immediately notify Moboom if you unexpectedly lose any IP rights related to your Market Extensions or become aware of a third party claim related to these rights;
11.6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, and will not cause injury to any person or damage to any property; and
11.7. 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 a Publisher EULA) based on your use of third party "open source" software or other third party intellectual property in any Extension. You will also promptly make available to Moboom, end users and any other third party that is entitled to it, the source code corresponding to any Extension or portion thereof if and in the manner required by applicable third party terms and conditions. Moboom's exploitation (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.
12.1. By Moboom. Subject to the terms and conditions of this Agreement: (1) Moboom shall defend a Publisher of a Paid-via-Moboom Extension from claims by third parties alleging that the Moboom Market or API's used in connection with such Extension infringes such third party's U.S. or Australian copyright or trademark and (2) Moboom shall pay damages finally awarded by a court of competent jurisdiction against such Publisher for such a claim or, if Moboom settles the claim, the settlement amounts. Moboom's obligations in this Section 12.1 apply only to the Moboom Market and APIs themselves and not to any Market Extensions, other Moboom products or services, or other third party content hosted on or used with the Moboom Market and APIs, and in any case Moboom's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the Moboom Market or APIs. As a condition to Moboom's obligations under this Section 12.1, you must provide Moboom (i) prompt written notice of the claim (and in any event notice in sufficient time for Moboom 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 12.1 sets forth Moboom's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
12.2. By You. You will indemnify, defend and hold Moboom 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 claim relating to any Content or the use of Content (including any claims made by or arising from end users), or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a "Claim," and collectively, the "Claims"). You will not consent to the entry of a judgment or settle a Claim without Moboom's prior written consent, which may not be unreasonably withheld. If you do not promptly assume and 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 Moboom may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 12.2 are independent of your other obligations under the Agreement.
13. Moboom Confidential Information
13.1. Definition. All information disclosed by Moboom 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 Moboom Market and Moboom's applications; non-public aspects of third-party applications listed in the Moboom Market to which you obtain access as a result of the relationship between you and Moboom under this Agreement; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and Moboom under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to your before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Moboom or anyone else.
13.2. Your Obligations. 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 Moboom with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Moboom's cost, if Moboom wishes to contest the disclosure.
13.3. Injunctive Relief. In event of actual or threatened breach of this Section 13, Moboom 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.
14. Information You Provide Is Not Confidential
14.1. You understand and agree that Moboom develops its own products and services and works with many other Publishers and developers, and either Moboom or these third parties could in the future develop (or already have developed) products similar to yours.
14.2. You should not provide to Moboom any information that you consider confidential and you agree that Moboom is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement. You expressly agree that neither this Agreement nor your participation in the Market limits Moboom's right to develop or have developed for it products, concepts, systems or techniques that are similar to or compete with any Market Extension or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to Moboom. For clarity, however, this paragraph, in itself, does not grant Moboom any license under your intellectual property rights.
15. Moboom Trademarks/Publicity
You will: (i) only use the Moboom Marks in the form and manner as set forth at Branding Guidelines and only in connection with the sale of your Market Extensions in the Moboom Market; (ii) not register any domain names that contain any terms that are the same or similar to any Moboom Marks; and (iii) upon expiration or termination of this Agreement for any reason, immediately cease all use of the Moboom Marks, unless you are otherwise authorized to continue using the Moboom Marks pursuant to a separate written agreement with Moboom. "Moboom Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by Moboom. Nothing contained herein shall grant you any ownership right in the Moboom Marks.
16. Disclaimers and Limitations of Liability
16.1. Disclaimer of Warranties. THE MOBOOM MARKET AND ANY MOBOOM MATERIALS ARE PROVIDED "AS IS" AND MOBOOM EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
16.2. Limitations of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13 OR TRADEMARK USE OBLIGATIONS UNDER SECTION 15 ABOVE: (A) NEITHER YOU NOR MOBOOM 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 MOBOOM'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE MOBOOM MARKET, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED MOBOOM'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, "MOBOOM'S MARGIN" MEANS THE AMOUNTS RECEIVED BY MOBOOM FROM SALES OF YOUR EXTENSIONS, MINUS THE REVENUE SHARE MOBOOM HAS PAID YOU.
16.3. 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.
17. Agreement Changes
This Agreement relates to the broader Moboom Market, which will change over time. Moboom reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective thirty (30) days after notice. Moboom will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If you do not agree to any of the proposed changes, you may terminate this Agreement prior to the date on which the changes were to take effect by (i) providing written notice to Moboom and (ii) terminating this Agreement and withdrawing all of your Extensions from the Market. If you so terminate the Agreement, the proposed changes will have no effect on you. However, if you do not so terminate then your continued participation in the Moboom Market after changes to this Agreement take effect will constitute your acceptance of the changes.
18. Dispute Resolution; Governing Law
18.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall 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 a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in San Francisco, CA (USA). All negotiations and arbitration proceedings pursuant to this Section 18.1 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. The language of the arbitration shall be English.
18.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, 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 that is not otherwise subject to the arbitration provisions of Section 18.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Moboom may bring a claim for equitable relief in any court with proper jurisdiction.
18.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 18, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, 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 Section 17 (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. Each party will bear its own costs and expenses in performing this Agreement. Moboom's failure to enforce any provision of this Agreement will not constitute a waiver of Moboom's rights to subsequently enforce the provision. Moboom may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Moboom's affiliates, contractors and service providers may exercise all rights of Moboom under this Agreement, including Moboom's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Moboom'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 Moboom 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 Moboom determines that such assignment is to a competitor of Moboom, Moboom 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 Moboom via email, via a posting in the Market Guidelines, or via a message through your my.Moboom.com account, or (ii) by you via email to legal@Moboom.com or to such other email or physical addresses as Moboom 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.