Content Aggregation & Delivery Developer Agreement

Last updated: 27th February 2012

Between:

SYNAPSY Mobile Networks GmbH, having its headquarters in Daimlerstr. 19, 97267 Himmelstadt, Germany, co.no. DE216254808, registered at HRB Wuerzburg 7401, dully represented by Waldemar Mehlmann-Selin as Managing Director, in the following: SYNAPSY, and you, in the following: THE DEVELOPER, And collectively called: THE PARTIES.

  1. 1. OBJECT OF THE AGREEMENT
    The objective of this agreement is to market & distribute free and paid applications, games and other digital products of THE DEVELOPER as content for mobile and/or other electronic devices compatible with so called “apps” (from now on the ‘Content’) through application, game & other digital product stores managed, sourced and/ or powered by SYNAPSY.
    1. 1.1 In this agreement the ‘Content’ may represent application, game and other digital products that will be delivered by THE DEVELOPER for hosting, adaptation & delivery purposes through the dedicated Web interface http://publisher.synapsy.net or any other Web interface SYNAPSY may communicate later on. THE DEVELOPER will provide the ‘Content’ to SYNAPSY in formats agreed between THE PARTIES that are mainly based on submission and/ or submission interface guidelines and structures SYNAPSY will provide. THE DEVELOPER can submit the ‘Content’ intended to be distributed for free or as paid content.
    2. 1.2 SYNAPSY shall provide THE DEVELOPER with hosting, adaptation & delivery services for the ‘Content’ on the terms set forth in this agreement. SYNAPSY shall provide for connectivity of its platform to the relevant mobile operator/ distribution channel systems enabling the end-users to order, receive and use the ‘Content’ from/to their devices.
    3. 1.3 SYNAPSY shall provide services and tools to enhance and/ or extend the ‘Content’ with relevant additional features and services including, but not limited to, channel specific customizations, flexible licensing and billing and advertisement features.
    4. 1.4 This agreement does not transfer any title, right or licenses, documentation or any intellectual property embodied or used in connection with the services provided for any of the ‘Content’ hosted by SYNAPSY.
  2. 2. RESPONSIBILITIES OF THE PARTIES
    1. 2.1 SYNAPSY’s Responsibilities / Exemptions / Rights
      1. 2.1.1 SYNAPSY shall provide THE DEVELOPER with remote access to its platform as necessary to deliver the ‘Content’. SYNAPSY shall announce to THE DEVELOPER all requirements for the ‘Content’ format, according to the capabilities of its platform and discovery & delivery channels the ‘Content’ shall be made available through.
      2. 2.1.2 Following the receipt of new ‘Content’ from THE DEVELOPER, SYNAPSY can and/ or will carry out on its sole discretion the required modifications and/ or completions: correct & complete placement in & on the platform including but not limited to fill up missing elements and assets of the ‘Content’ if feasible in order to gain as many ‘Content’ items as possible that reach the level of completion required for being activated in THE DEVELOPERS’ account and/ or discovery channels, quality measurements, target platform and channel enhancements, appropriate order codes if mandatory, activation of the ‘CONTENT’ display on the Web, WAP and other relevant page(s) and discovery channels, etc. provided the ‘Content’ is complete and fulfills all requirements to be activated. In case SYNAPSY detects that an updated version of THE DEVELOPERS’ app(s) is available (e.g. in other Application Stores) SYNAPSY may, but is not obliged to, remind THE DEVELOPER to update the ‘Content’ in SYNAPSY’s publisher interface too or, if feasible, to update the ‘Content’ automatically. In case THE DEVELOPER does not want SYNAPSY to provide these services, the publisher interface offers in the “Settings” area at the point “Completion & Updating Helper” the possibility to switch the services off.
      3. 2.1.3 ‘Content’ provided by THE DEVELOPER will remain the sole and exclusive property of THE DEVELOPER, and SYNAPSY shall not make use of such ‘Content’ for other purposes than those described in this agreement. After termination of the agreement the ‘Content’ shall be deleted from any and all SYNAPSY content platform services and sales and delivery channels.
      4. 2.1.4 SYNAPSY shall be responsible for the design and hosting of the Web, WAP and alternative discovery/ retail channels presenting the ‘Content’.
      5. 2.1.5 Based upon the agreements between SYNAPSY and its clients, SYNAPSY will market the ‘Content’ through the Web, WAP and alternative discovery & sales channels like On-device portals of SYNAPSY and its clients. SYNAPSY’s clients are Mobile Network Operators, device manufacturers and portals for digital content using the SYNAPSY Mobile Content Platform and/ or its services.
      6. 2.1.6 SYNAPSY is responsible for providing support to users in respect of the System – however, if THE DEVELOPER's 'Content' causes particular problems, SYNAPSY or the user may contact THE DEVELOPER for assistance.
      7. 2.1.7 SYNAPSY will be responsible for the price strategy of the ‘Content’ that is usually fixed by its customers/ sales channel partners and are based on price/ price range recommendations/ settings done by THE DEVELOPER himself. In case THE DEVELOPER has not done such price settings, prices for paid content will usually be set based on standards and/ or averages of a specific discovery channel in a specific country. THE DEVELOPER understands and agrees that it may happen that the ‘Content’ should be integrated by SYNAPSY or the responsible channel managers of discovery and sales channels into timely limited offers and/ or promotions and discounts of up to 25% off of the last regular end user price may be done without extra notice to THE DEVELOPER. Furthermore the ‘Content’s price you set/ recommend/ allow for channels sourced by SYNAPSY with your ‘Content’ shall not be higher than the price your ‘Content’ is offered in other sales channels one and the same end user could have access to. To avoid this, THE DEVELOPER shall always communicate/ set any such price reductions, promotions, discounts or other such programs to and for SYNAPSY channels at the same time such price changes happen in other channels so that SYNAPSY channels can at least offer the same prices. In case THE DEVELOPER does not do this by himself, SYNAPSY shall have the right to do such settings by itself.
      8. 2.1.8 SYNAPSY shall provide to THE DEVELOPER a protected online access to the statistics server detailing the traffic in real-time provided that the transactions are performed via SYNAPSY’s own Mobile Content Management solution.
      9. 2.1.9 SYNAPSY will remove the ‘Content’ from its SYNAPSY content platform services and sales and delivery channels within thirty (30) days after receipt of THE DEVELOPER’s written request.
    2. 2.2 THE DEVELOPER’s Responsibilities / Exemptions / Rights
      1. 2.2.1 THE DEVELOPER will deliver the ‘Content’ to SYNAPSY platform in the required format agreed between THE PARTIES.
      2. 2.2.2 THE DEVELOPER is solely responsible for submitting ‘Content’ that has been tested, is safe and free of viruses and defects.
      3. 2.2.3 THE DEVELOPER is solely responsible for the ‘Content’ published via the services provided by SYNAPSY including data, graphics, artwork, and copyright/trademark notices. THE DEVELOPER exempts SYNAPSY from all actual or stated third party claims that have been set up due to THE DEVELOPER’s (or one of his contractual partner’s) violation against the obligations or guarantees stipulated in this paragraph, provided that SYNAPSY gives prompt notice to THE DEVELOPER of any threatened or actual claim for which indemnity is sought and turns over control of the defense of any such action to THE DEVELOPER; and reasonably cooperates and assists in the defense or settlement of any such claim. This includes judicial and extrajudicial costs that might arise from judicial proceedings, including any solicitor costs.
      4. 2.2.4 THE DEVELOPER shall have no obligation to defend or indemnify SYNAPSY with respect to any claim based upon (i) the modification of the Content by a party other than THE DEVELOPER, (ii) the combination, operation, or use of the Content with programs or equipment not provided by THE DEVELOPER, (iii) a claim that would have been avoided but for SYNAPSY’s failure to implement the infringement remedy of removal as requested by THE DEVELOPER or (iv) SYNAPSY’s use of the Content is not in accordance with the terms of this Agreement. If any portion of the Content is held to infringe or THE DEVELOPER believes that the Content is infringing, THE DEVELOPER may, at its option obtain a license permitting use of such portion of the Content, modify or replace such portion of the Content or terminate the license to use such Content. This indemnification is SYNAPSY’s sole remedy and THE DEVELOPER’s entire liability with respect to all of the claims set forth in this Section.
      5. 2.2.5 THE DEVELOPER warrants that it has accrued all necessary rights to adapt, produce, publish and/or sell ‘Content’ via services provided and that it will comply with any obligations it may have under third party performance rights agreements.
      6. 2.2.6 THE DEVELOPER indicates in advance if the ‘Content’ should be delivered for free or as paid content. SYNAPSY may decide to provide THE DEVELOPER separated provider accounts if THE DEVELOPER wants to submit both, free and paid content.
      7. 2.2.7 In case THE DEVELOPER submits trial versions of the ‘Content’ intended to be distributed for free, any fees that should be collected after the free trial expires in order to upgrade it to a full version, must be collected via the payment infrastructure offered by the delivery channel the free trial has been initially delivered to the consumer provided the respective delivery channel offers such payment infrastructure and/ or interfaces.
      8. 2.2.8 It is allowed that THE DEVELOPER integrates ads of external ad networks into apps that should be distributed by SYNAPSY. As either SYNAPSY or distribution channels of SYNAPSY might provide and/ or offer own ad networks or have own agreements with external ad networks with the possibility of assignment of sub id’s and the management of such, SYNAPSY has the right to ask THE DEVELOPER to embed such ad networks/ ad networks identification codes or id’s or replace them by itself if technically feasible and without negatively changing the behavior of THE DEVELOPER’s apps. Same conditions as for sales of paid content apply and SYNAPSY shall pay to THE DEVELOPER a percentage of the Net Receipts that are based on successful ad events and the Revenue Exhibits (Appendix 1).
      9. 2.2.9 THE DEVELOPER is responsible for providing reasonable technical and product support to users in respect of the 'Content', including product features, installation and use. THE DEVELOPER must ensure to provide accurate contact details so that users may contact THE DEVELOPER directly.
      10. 2.2.10 THE DEVELOPER has to ensure that SYNAPSY has a valid and current email address of THE DEVELOPER.
      11. 2.2.11 Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE ‘CONTENT’ IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE DEVELOPER AND SYNAPSY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, GUARANTEES AND CONDITIONS WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE CONTENTS INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY AND NON-INFRINGEMENT.
    3. 2.3 Prohibited Content and Actions and Selection
      1. 2.3.1 The following ‘Content’ is prohibited:
        1. explicit sexual activity
        2. excessive pain or suffering
        3. promotion or endorsement of alcohol, tobacco, illegal drugs or addictive substances in principle
        4. promotion of intolerance and/ or discrimination including but not limited to racial, political, ethnic, religious, gender and/ or sexuality
        5. promotion of any illegal activity
      2. 2.3.2 It is prohibited to use any customer/ end user information obtained through the distribution of the ‘Content’ through delivery channels sourced by SYNAPSY for other purposes other than to perform your obligations under this agreement especially but no limited to sell or distribute ‘Content’ to other – especially but not limited to - competitive channels not sourced by SYNAPSY or purposes that violate SYNAPSY’s and its channel partners’ privacy policies.
      3. 2.3.3 THE DEVELOPER understands and agrees that SYNAPSY may determine THE DEVELOPER’s ‘Content’ as non-compliant and/ or not appropriate for the services managed by SYNAPSY for its channels & channel partners. In effect SYNAPSY, in its sole discretion, my reject your submissions or remove the ‘Content’ at any time.
  3. 3. THE FINANCIAL TERMS
    1. 3.1 SYNAPSY will support the following costs: internal costs related to the implementation of the Services that will use the hosted ‘Content’; billing and network costs, other promotion and advertising costs. Furthermore any costs incurred for hosting, uploading, display of the ‘Content’ in WAP, Web & alternative channels like On-device portals.
    2. 3.2 THE DEVELOPER will be responsible for the following costs: internal costs for content-creation or any charges imputable to THE DEVELOPER in case found at fault for breaching the above mentioned responsibilities.
    3. 3.3 In case of paid content downloads, SYNAPSY shall pay to THE DEVELOPER a percentage of the Net Receipts that are based on successful billing events and the Revenue Exhibits (Appendix 1). Net Receipts means all amounts SYNAPSY actually received from a sale of the ‘Content’, less (I) any applicable sales, use, value-added or other taxes, and (II) any transactions costs, including but not limited to credit card fees, network charges, premium-rates SMS/ MMS or transaction charges incurred via MNO billing services, and any other direct costs SYNAPSY incurs in connection with the sale transaction(s). For avoiding any doubt, such billing events can be “direct” purchases as well as possible event- or subscription-payments e.g. made through in-app licensing and payment features & services provided by SYNAPSY to THE DEVELOPER and its ‘Content’. If not otherwise agreed, SYNAPSY shall pay the percentages of the Net Receipts in EURO. Applicable VAT shall be added.
    4. 3.4 SYNAPSY will pay THE DEVELOPER the percentage of the Net Receipts actually collected during the previous month, less credits for returns and chargebacks as described below, in the first 15 days of the following month to the bank account saved into THE DEVELOPER’s account in the publisher Web interface and/ or sent via email to accounting@synapsy.com at least 30 days before the actual payment should happen.
    5. 3.5 At SYNAPSY’s sole discretion, payment may be by means of electronic payment methods or check. In case THE DEVELOPER requests a payment method other than the one chosen by SYNAPSY, SYNAPSY has the right to deduct its processing and delivery costs from the amount of the payment
    6. 3.6 In case THE DEVELOPER uses discovery and delivery channels backed by SYNAPSY to distribute free ad-funded ‘Content’ and does not use advertisement platforms/ services/ distribution channels recommended and/ or offered by SYNAPSY and/ or its partners, SYNAPSY may consider to charge a handling fee from THE DEVELOPER later on. Such handling fee can only be charged if THE DEVELOPER accepts such potential fees communicated by SYNAPSY at least 30 days in advance. A refusal can lead to exclusion of the ‘Content’ already submitted by THE DEVELOPER.
    7. 3.7 If the total amount payable to THE DEVELOPER is less than two hundred EUR (€ 200.00), SYNAPSY shall have the right to withhold payment until the next regularly scheduled payment date on which the amount payable to THE DEVELOPER equals or exceeds two hundred EUR (€ 200.00).
    8. 3.8 If SYNAPSY has to issue a refund from a ‘Content’ sale and/ or amounts are charged back to SYNAPSY as a result of a disputed MNO or other billing type/ way charge and after payment has been made to THE DEVELOPER already, then SYNAPSY has the right to deduct all such refund or chargeback amounts from any next payments to you.
  4. 4. DISCLOSURE OF INFORMATION AND CONFIDENTIALITY
    1. 4.1 Both parties shall, during this Content Aggregation & Delivery Agreement, provide each other with all relevant information about them and the above-mentioned services as one Party may reasonably request for the purpose of good performance under this Agreement.
    2. 4.2 Each party shall not disclose any information of a confidential nature to any third party save to its employees/professional advisers as have need to know provided it does so on terms protecting the information. Each receiving party shall treat such confidential information with the same degree of care as it treats information of its own which it would not wish to be disclosed. Confidential information may only be disclosed if such disclosure is required by law or the disclosing party has given its consent in writing.
    3. 4.3 The provisions of the paragraph 4.2 shall not apply to:
      1. The information publicly published or divulged in other manners than by breaching the provisions of this contract
      2. The information legally in the possession of either party before its disclosure to the other party when concluding this contract
      3. The information obtained from a third party who has the right to divulge them
      4. The information divulged by a party according to the law
    4. 4.4 SYNAPSY is entitled to include content and brand features of THE DEVELOPER into marketing materials, presentations and press releases.
    5. 4.5 The confidentiality conditions shall remain in force 3 years after the termination of this agreement.
  5. 5. TERM & TERMINATION OF AGREEMENT
    1. 5.1 The hereby agreement will become effective upon THE DEVELOPER’s receipt of notice from SYNAPSY about the approval of THE DEVELOPER’s application to SYNAPSY’s developer program and shall be in full force and effect until terminated as provided herein.
    2. 5.2 The agreement can be terminated through one-sided denunciation for any reason or no reason at all by one party, through delivery of written notice. The termination of the agreement enters into force within 60 calendar days from the date on which the destination person receives the written notice. THE DEVELOPER needs to terminate the agreement either via letter to the postal address of SYNAPSY or via Fax to +49(0)9364 8137-202. SYNAPSY can terminate this agreement with or without cause by removing the ‘Content’ from the discovery & sales channels SYNAPSY has sourced the ‘Content’ to.
    3. 5.3 In case either party does not fulfill its contractual obligations or fulfills them in an inappropriate manner, the other party has the right to de jure terminate the contract.
    4. 5.4 THE DEVELOPER understands and agrees that the termination of this agreement does not terminate the rights or licenses of an end user to continue to use the ‘Content’ if the ‘Content’ was downloaded by the end user prior the termination.
  6. 6 GENERAL
    1. 6.1 Each Party agrees that, to the extent permitted by law and notwithstanding anything to the contrary in this Agreement, no Party shall be liable to any other in respect of any incidental, consequential, indirect or special loss or damages, howsoever arising, whether in contract or in tort (save only in relation to any liability arising from fraudulent misrepresentation or in any other action arising from fraud or deceit), and whether or not that Party was advised of the possibility of such loss or damages. In no event shall a party’s liability arising out of or in connection with this Agreement, whether in contract, tort or otherwise, exceed the amounts actually paid by SYNAPSY to THE DEVELOPER (in the case of THE DEVELOPER’s liability) or payable by SYNAPSY to THE DEVELOPER (in the case of SYNAPSY’s liability).
    2. 6.2 This agreement and any disputes arising under it shall be governed by the German Laws whose courts will have exclusive jurisdiction. Any amendments to this Agreement shall be in writing, signed by THE PARTIES. The United Nations Convention on Contracts for Sale of International Good does not apply to this Agreement.
    3. 6.3 Neither party may assign rights or obligations assumed through the hereby contract without the prior written approval of the other party, under the sanction of annulling the assignment and the termination of the contract.
    4. 6.4 SYNAPSY may amend this agreement by (I) posting the revised agreement on its publisher website and delivering notice to THE DEVELOPER of the new agreement, (II) delivering a copy of the new agreement to the DEVELOPER, no matter if in paper or electronic form or (III) any other means reasonably calculated to notify THE DEVELOPER of the revised terms. Revised terms may be rejected within 14 (fourteen) days of SYNAPSY’s delivery of the revised terms by THE DEVELOPER by sending a written request to have the ‘Content’ removed from the SYNAPSY system. If THE DEVELOPER does not send such a request within that period, then the revised terms shall be binding.
    5. 6.5 These Terms are severable so that if any provision is determined to be illegal or unenforceable by any court of competent jurisdiction such provision shall be deemed to have been deleted without affecting the remaining provisions of these Terms.
    6. 6.6 Failure to exercise any particular right or provision contained in these Terms shall not constitute a waiver by us of such right or provision unless acknowledged and agreed to by us in writing.
    7. 6.7 This Content Aggregation & Delivery Agreement constitutes the entire legal agreement between THE DEVELOPER and SYNAPSY and supersedes all prior understandings and agreements between THE DEVELOPER and SYNAPSY.

Appendix 1

Revenue Shares
or all sales and advertisement revenues of the ‚Content’ through SYNAPSY discovery & sales channels, SYNAPSY shall pay THE DEVELOPER 70% of all Net Receipts if not other conditions have been fixed and/ or granted (e.g. through special promotions) before.

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