Before we get into all the legal mumbo jumbo that's required, we'd
like to go over some of our 'house rules'.
This goes without saying, this site and the services provided by MiKandi
is intended for adults only. This means You MUST be at least 18 years old and/or over
the legal age to view explicit content within the jurisdiction you reside.
Otherwise, you are not permitted to use the website or download the MiKandi
App Store.
We've seen this happen before. Picture this. There's a little kid in
the local candy store getting a lollipop. He just spent his week's
allowance to buy it and he's really looking forward to eating it. But he
never gets the chance, because some jerk named Bubba (whose 5 years
older btw) snatches it from him! Douchebaggery.
The Symptoms of Douchebaggery:
Don't let us catch you! 'Cause we'll find youuu!
You all know the deal, so just don't do it. If you need a refresher course on what spam is, please read the following.
Spam - n. Unsolicited e-mail, often of a commercial nature, sent
indiscriminately to multiple mailing lists, individuals, or newsgroups;
junk e-mail.
Note: The only type of Spam we're cool with is the kind you get in
the tin can. (Hey, don't knock it till you try it!)
Caution: Reading past this point may induce boredom.
Without further adieu...
3.3 You may also choose to distribute Products for free. If the Product is free, you will not be charged a Transaction Fee. You may not collect future charges from users for copies of the Products that those users were initially allowed to download for free. This is not intended to prevent distribution of free trial versions of the Product with an "upsell" option to obtain the full version of the Product: Such free trials for Products are encouraged. However, if you want to collect fees after the free trial expires, you must collect all fees for the full version of the Product through the Payment Processor on the Market. In this Agreement, "free" means there are no charges or fees of any kind for use of the Product. All fees received by Developers for Products distributed via the Market must be processed by the Market's Payment Processor.
3.4 Refund Requirements. The Payment Processor's standard terms and conditions regarding refunds will apply except the following terms apply to your distribution of Products on the Market.
No refund is required or allowed for any Products in the Market, unless the Product contains malware, viruses, illegal content, or otherwise violates this Agreement., or if you remove the Product from the Marketplace.
3.5 You Support Your Product. You will be solely responsible for support and maintenance of your Products and any complaints about your Products. Your contact information will be displayed in each application detail page and made available to users for customer support purposes.
3.6 Reinstalls. Users are allowed unlimited reinstalls of each application distributed via the Market, provided however that if you remove a Product(s) from the Market pursuant to clauses (i), or (ii) of Section 7.1, such Product(s) shall be removed from all portions of the Market and users shall no longer have a right or ability to reinstall the affected Products.
4. Use of the Market by You
4.1 Except for the license rights granted by you in Section 5 below, MiKandi agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of Products, including any intellectual property rights which subsist in those applications.
4.2 You agree to use the Market only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.3 You agree that if you use the Market to distribute Products, you will protect the privacy and legal rights of users. If the users provide you with, or your Product accesses or uses, user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your Product, and you must provide legally adequate privacy notice and protection for those users. Further, your Product may only use that information for the limited purposes for which the user has given you permission to do so. If your Product stores personal or sensitive information provided by users, it must do so securely and only for as long as it is needed. But if the user has opted into a separate agreement with you that allows you or your Product to store or use personal or sensitive information directly related to your Product (not including other products or applications) then the terms of that separate agreement will govern your use of such information.
4.4 Prohibited Actions. You agree that you will not engage in any activity with the Market, including the development or distribution of Products, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, MiKandi Users, or any mobile network operator. You may not use customer information obtained from the Market to sell or distribute Products outside of the Market.
4.5 Non-Compete. You may not use the Market to distribute or make available any Product whose primary purpose is to facilitate the distribution of Products outside of the Market.
4.6 You agree that you are solely responsible for (and that MiKandi has no responsibility to you or to any third party for) any Products you distribute through the Market and for the consequences of your actions (including any loss or damage which MiKandi may suffer) by doing so.
4.7 You agree that you are solely responsible for (and that MiKandi has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which MiKandi or any third party may suffer) of any such breach.
4.8 The Market will allow you to protect your Products so that users may not share Products with other users or devices.
4.9 Product Ratings. The Market will allow users to rate Products. Only users who download the applicable Product will be able to rate it. Product ratings will be used to determine the placement of Products on the Market with higher rated Products generally given better placement, subject to MiKandi's ability to change placement at MiKandi's sole discretion.
Your Products may be subject to user ratings to which you may not agree. You may contact MiKandi if you have any questions or concerns regarding such ratings at developer@mikandi.com
4.10 Marketing Your Product. You will be responsible for uploading your Products to the Market, providing required Product information to users, and accurately disclosing the security permissions necessary for the Product to function on user Devices.
4.11 Restricted Content. Any Product you distribute on the Market must adhere to the Market Content Policy for Developers located at ADD URL TO MIKANDI DEVELOPER CONTENT AGREEMENT
5. License Grants
5.1 You grant to MiKandi a nonexclusive, worldwide, and royalty-free license to: copy, perform, display, and use the Products for administrative and demonstration purposes in connection with the operation and marketing of the Market.
5.2 You grant to MiKandi a nonexclusive, and royalty-free license to distribute the Products according to the publishing options selected by you on the Product upload page of the Market.
5.3 You grant to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Product on the Device. If you choose, you may include a separate end user license agreement (EULA) in your Product that will govern the user's rights to the Product in lieu of the previous sentence.
5.4 You represent and warrant that you have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Product. If You use third-party materials, You represent and warrant that you have the right to distribute the third-party material in the Product. You agree that You will not submit material to Market that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to submit the material.
6. Brand Features and Publicity.
6.1 "Brand Features" means the trade names, trade marks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
6.2 Each party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Brand Features. Except to the limited extent expressly provided in this Agreement, neither party grants, nor shall the other party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the other party. Subject to the terms and conditions of this Agreement, Developer grants to MiKandi and its affiliates a limited, non-exclusive license during the term of this Agreement to display Developer Brand Features, submitted by Developer to MiKandi, for use solely online or on mobile devices and in either case solely in connection with the distribution and sale of Developer's Product through the Market or to otherwise fulfill its obligations under this Agreement. If Developer discontinues the distribution of specific Products on the Market, MiKandi will cease use of the discontinued Products' Brand Features pursuant to this Section 6.2, except as necessary to allow MiKandi to effectuate Section 3.6.
6.3 Publicity. In addition to the license granted in 6.2 above, for purposes of marketing the presence, distribution and sale of the Developer's Product in the Market, MiKandi and its affiliates may include Developer Brand Features, submitted by Developer to MiKandi: (i) within the Market and in any MiKandi-owned online or mobile properties; (ii) in online or mobile communications outside the Market when mentioned along with other Market Products; (iii) when making announcements of the availability of the Product online or on mobile devices; (iv) in presentations; and (v) in customer lists which appear either online or on mobile devices. If Developer discontinues the distribution of specific Products on the Market, MiKandi will cease use of the discontinued Products' Brand Features for such marketing purposes. MiKandi grants to Developer a limited, non-exclusive, worldwide, royalty-free license to use the MiKandi Brand Features for the term of this Agreement solely for marketing purposes.
7. Product Takedowns.
7.1 Your Takedowns. You may remove your Products from future distribution via the Market at any time, but you must comply with this Agreement and the Payment Processor's Payment Account terms of service for any Products distributed through the Market, including but not limited to refund requirements. Removing your Products from future distribution via the Market does not (a) affect the license rights of users who have previously purchased or downloaded your Products, (b) remove your Products from Devices or from any part of the Market where previously purchased or downloaded applications are stored on behalf of users, or (c) change your obligation to deliver or support Products or services that have been previously purchased or downloaded by users. Notwithstanding the foregoing, in no event will MiKandi maintain on any portion of the Market (including, without limitation, the part of the Market where previously purchased or downloaded applications are stored on behalf of users) any Product that you have removed from the Market and provided written notice to MiKandi that such removal was due to (i) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, or (ii) an allegation or determination that such Product does not comply with applicable law.
7.2 MiKandi Takedowns. While MiKandi does not undertake to monitor the Products or their content, if MiKandi is notified by you or otherwise becomes aware and determines in its sole discretion that a Product or any portion thereof or your Brand Features; (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (e) may create liability for MiKandi; (f) is deemed to have a virus or is deemed to be malware, spyware or have an adverse impact on MiKandi's network; (g) violates the terms of this Agreement or the Market Content Policy for Developers; or (h) the display of the Product is impacting the integrity of MiKandi servers (i.e., users are unable to access such content or otherwise experience difficulty), MiKandi may remove the Product from the Market or reclassify the Product at its sole discretion.
In the event that your Product is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, or does not comply with applicable law, and an end user purchased such Product within a year before the date of takedown,: (i) you must refund to MiKandi, all amounts received, plus any associated fees (i.e. chargebacks and payment transaction fees), and (ii) MiKandi may, at its sole discretion, withhold from your future sales the amount in subsection (i) above.
8. Your Developer Credentials
8.1 You agree that you are responsible for maintaining the confidentiality of any developer credentials that may be issued to you by MiKandi or which you may choose yourself and that you will be solely responsible for all applications that are developed under your developer credentials. MiKandi may limit the number of Developer Accounts issued to you or to the company or organization you work for.
9. Privacy and Information
9.1 In order to continually innovate and improve the Market, MiKandi may collect certain usage statistics from the Market and Devices, including but not limited to, information on how the Market and Devices are being used.
9.2 The data collected is examined in the aggregate to improve the Market for users and Developers and is maintained in accordance with ADD URL TO MIKANDI PRIVACY POLICY. To ensure the improvement of Products, limited aggregate data may be available to you upon written request.
10. Terminating this Agreement
10.1 This Agreement will continue to apply until terminated by either you or MiKnadi as set out below.
10.2 If you want to terminate this Agreement, you must provide MiKandi with thirty (30) days prior written notice (unless this Agreement terminates under Section 14.1) and cease your use of any relevant developer credentials.
10.3 MiKandi may at any time, terminate this Agreement with you if:
(A) you have breached any provision of this Agreement; or
(B) MiKandi is required to do so by law; or
(C) MiKandi decides to no longer provide the Market.
11. DISCLAIMER OF WARRANTIES
11.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE MARKET IS AT YOUR SOLE RISK AND THAT THE MARKET IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
11.2 YOUR USE OF THE MARKET AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MARKET IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
11.3 MIKANDI FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
12. LIMITATION OF LIABILITY
12.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIKANDI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT MIKANDI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
13. Indemnification
13.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless MiKandi, its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) your use of the Market in violation of this Agreement, and (b) your Product that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy.
14. Changes to the Agreement
14.1 MiKandi may revise these Terms from time to time, the most current version will always be at http://developer.mikandi.com/terms. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
15. General Legal Terms
15.1 This Agreement constitutes the whole legal agreement between you and MiKandi and governs your use of the Market, and completely replaces any prior agreements between you and MiKandi in relation to the Market.
15.2 You agree that if MiKandi does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which MiKandi has the benefit of under any applicable law), this will not be taken to be a formal waiver of MiKandi's rights and that those rights or remedies will still be available to MiKandi.
15.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
15.4 You acknowledge and agree that each member of the group of companies of which MiKandi is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this Agreement.
15.5 EXPORT RESTRICTIONS. PRODUCTS ON THE MARKET MAY BE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF PRODUCTS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
15.6 The rights granted in this Agreement may not be assigned or transferred by either you or MiKandi without the prior written approval of the other party. Neither you nor MiKandi shall be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other party.
15.7 This Agreement, and your relationship with MiKandi under this Agreement, shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. You and MiKandi agree to submit to the exclusive jurisdiction of the courts located within the county of King, Washington to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that MiKandi shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.8 The obligations in Sections 5, 6.2 (solely as necessary to permit MiKandi to effectuate Section 3.6), 7, 11, 12, 13, and 15 will survive any expiration or termination of this Agreement.
If you have any questions about these Terms of Use, please contact MiKandi at info@mikandi.com.
December 1, 2009