5Mina Networks, Inc. ("5mina") provides technology that enables the integration of ecommerce into mobile device applications. "Publisher" means you or any other person or entity on whose behalf you are authorized to act. The parties desire to integrate ecommerce into Publisher software using 5mina’s technology through Publisher’s use of 5mina’s SDK and ecommerce software to share revenue generated by such ecommerce sales, all as set forth below. Therefore, 5mina and Publisher agree as follows.
1.1. "Property" means each of Publisher mobile device applications.
1.2. "Ecommerce-enabled Property" means a Property as properly modified by Publisher, in accordance with the documentation supplied with the applicable 5mina SDK.
1.3. "End User" means a person that uses an Ecommerce-enabled Property for personal use and not for further reproduction or distribution.
1.4. "5mina SDK" means 5mina’s software developer’s kit, as provided to Publisher by 5mina in connection with this Agreement (consisting generally of software, an application programming interface, and associated documentation), designed to enable Publisher to convert its Properties for one or more platforms into Ecommerce-enabled Properties.
1.5. "Compatible Device" means an End User’s communication device that is compatible with 5mina’s In-App Store system, and which may include, without limitation, wireless, mobile or cellular communication devices, Internet communications devices, or other communications or transmission technologies now known or hereafter devised.
1.6. "Net Revenue" means the revenues received by 5mina from the sale of merchandises less shipping charges, less the Base Price as published on the 5mina system, less Refunds of merchandises. Net Revenue shall be calculated within 30 days after the conclusion of the month in which the revenue was earned.
1.7. "Third-Party Channel" means an online application distribution channel operated by a third party for a given type of Property or for Properties associated with a given Compatible Device platform, such as Apple’s "App Store" or Google’s "Google Play."
2. REVENUE SHARE AND PAYMENT
2.1. Revenue Share. For each order successfully fulfilled by 5mina to an End User of the Ecommerce-enabled Property, 5mina will pay Publisher the Net Revenue from that sale, provided the order not be returned and refunded.
2.2. Report. 5mina will provide Publisher with online access to reports of the Revenue Share owed to Publisher (the "Revenue Share Online Report").
2.3. Payment Terms. For each month (but only after the Revenue Share owed to Publisher reaches $100 USD), 5mina will pay Publisher all Revenue Share incurred during such month, as set forth in the applicable Revenue Share Online Report, 30 days after the end of the calendar month.
2.4. Taxes. Each party will be responsible for and pay its own taxes as imposed on such party under applicable law with respect to this Agreement, including without limitation taxes on each party’s own net income.
3. CREATION AND DISTRIBUTION OF ECOMMERCE-ENABLED PROPERTIES
3.1. 5mina SDK License Grant. Subject to Publisher’s compliance with the material terms and conditions of this Agreement, 5mina grants to Publisher a worldwide, royalty free, non-exclusive, non-transferable license to use, internally, each 5mina SDK solely for purposes of converting Publisher’s Properties into Ecommerce-enabled Properties in accordance with the documentation included in such 5mina SDK. Publisher will not use any 5mina SDK for any purpose other than as authorized in this Section, and Publisher may not share, sell, license or otherwise distribute the 5mina SDK, in whole or in part, to any third party without 5mina’s prior written approval.
3.2. Distribution of SDK-Modified Properties. Publisher will be solely responsible for distributing or publishing each Ecommerce-enabled Property (as modified using the 5mina SDK). The Publisher acknowledges that it will be solely responsible for making arrangements for each Ecommerce-enabled Property to be hosted and distributed through any applicable Third-Party Channel. Publisher will submit each Ecommerce-enabled Property to such Third-Party Channel(s) in accordance with the policies and procedures of the Third-Party Channel(s), and will be solely responsible for any fees, revenue shares, or other compensation charged by any third party in connection with the hosting or distribution of such Ecommerce-enabled Properties.
3.3. Restrictions. Except as expressly authorized herein, Publisher will not cause or permit: (a) copying or modification of any portion of the 5mina SDK, or any accompanying documentation; (b) reverse engineering, decompilation, translation, disassembly, alteration, adaptation, or discovery of the source code of all or any portion of the 5mina SDK as incorporated in or integrated with the Ecommerce-enabled Property or any report file format (except to the extent that such a restriction is prohibited by law); (c) use of the 5mina SDK in any manner other than as expressly authorized under this Agreement; or (d) transfer of the Ecommerce-enabled Property or export of the Ecommerce-enabled Property in violation of U. N. embargoes or applicable U.S. laws and regulations or other applicable law.
3.4. Rights Reserved. 5mina reserves the right to (a) make substitutions and modifications in the specifications and technology of the 5mina SDK and/or any other software or systems; (b) discontinue or otherwise end-of-life the 5mina SDK and ecommerce software displaying merchandise listings and transacting orders via the Ecommerce-enabled Properties without prior notice.
4.1 No Fraudulent Activity. Publisher will not authorize, engage in, or encourage the use of any deceptive, mechanical, computerized, artificial, fraudulent or other similarly invalid means to increase the number of merchandise orders, users, impressions, page views, click-throughs or any other measure of traffic on or in connection with an Ecommerce-enabled Property (collectively, "Fraudulent Activity"), including, without limitation, by any of the following means: (a) merchandise orders and traffic generated by script, macro or any other automated means with the intent to impair the integrity of the order purchases and traffic, (b) merchandise orders and taffic generated by misleading means, including Publisher, its employees, contractors or agents placing merchandise orders or clicking on any merchandise listings except in the course of normal individual use or; (c) masking the true user agent or IP address of an End User.
5. IP OWNERSHIP & USE OF CERTAIN DATA
5.1. Intellectual Property Rights. As between the parties, 5mina retains all right, title and interest in and to the 5mina SDK, and ecommerce software via the Ecommerce-enabled Properties, and all intellectual property and proprietary rights therein, and Publisher retains all right, title and interest in and to the Properties and any amendments and new versions thereof, including all intellectual property rights and proprietary rights therein. Each party retains all rights not expressly granted to the other under this Agreement.
5.2. Proprietary Notices. Publisher will not remove or alter any proprietary notices provided by 5mina in the 5mina SDK.
6.1. When you share your artwork, designs or other Content (each, a "Design" and collectively, "Designs") to 5mina, you grant 5mina a global, transferable, nonexclusive license for the promotion, creation and production of branded merchandise within the 5mina SDK in your Ecommerce-enabled Properties. You also grant 5mina the license and the right to make modifications to your Designs as necessary to prepare your Designs for manufacturing purposes. This section only gives 5mina a right to use your Designs in a limited manner. It does not transfer ownership of the Designs. You may remove your Designs from being sold via 5mina at any time, and you retain all copyright and other intellectual property rights in your Designs. Upon the removal of a Design, the licenses above will terminate, except that 5mina will fulfill any orders placed prior to termination.
7. TERM AND TERMINATION
7.1. Agreement Effective Until Terminated. This Agreement will commence on the Effective Date, and will continue in force until terminated by either party. Either party may, without penalty, terminate this Agreement for any reason or no reason. 5mina may at any time suspend Publisher ability to access 5mina services, or terminate Publisher account.
8. REPRESENTATIONS AND WARRANTIES
8.3 Disclaimer. Except as expressly provided in this section, neither party makes any warranties or conditions, express, statutory, implied, or otherwise with respect to any application (including any ecommerce-enabled property), 5mina sdk, 5mina’s ecommerce system or the property, and both parties specifically disclaim the implied warranties and conditions of merchantability, non-infringement, and fitness for a particular purpose with respect to the ecommerce-enabled properties, 5mina SDK, 5mina's ecommerce system and property.
8.1 Publisher. Publisher agree to indemnify, defend and hold harmless 5mina, its officers, members, managers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of or from (a) your use of or inability to use the Services (b) your violation of any terms of this Agreement or your violation of any rights of a third party, or (c) your violation of any applicable laws, rules or regulations. 5mina reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with 5mina in asserting any available defenses.
8.2 LIMITATION OF LIABILITY. 5MINA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT 5MINAWAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL 5MINA’S LIABILITY AND DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO ANY SERVICE OR THIS AGREEMENT EXCEED $50. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10. CONFIDENTIAL INFORMATION
10.1 "Confidential Information" means any information disclosed by the Parties to each other under this Agreement, either directly or indirectly in writing, orally or by inspection of documents, which if disclosed in writing or tangible form is marked as "Confidential," "Proprietary," or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure, or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary and/or confidential. Moreover, 5mina’s SDK and ecommerce software is deemed to be Confidential Information.
11.1 Assignment; Binding Effect. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except that either may assign any of its rights and obligations under this Agreement without consent: (a) to any of its affiliates (provided that any such assignment will not relieve the assigning party of its obligations hereunder) or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its related assets, by operation of law or otherwise, or similar transaction. This Agreement inures to the benefit of and will be binding on the parties’ permitted assignees, transferees and successors.
11.2 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles.
11.3 The parties agree that the federal and state courts in San Francisco County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
11.4 Relationship of Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and may not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party will have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained will give, or is intended to give, any rights of any kind to any third parties.
11.5 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance will be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.6 Attorney’s Fees. 5mina shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of this Agreement.