Bango.net Ltd Firefox Marketplace Developer Agreement, 2013.
If you are not over the age of majority under the laws of your jurisdiction you may not enter into this Agreement, but should have your parent or guardian enter into this Agreement on your behalf.
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE DEVELOPER PORTAL ("You") ON THE ONE HAND, AND Bango.net Limited, a company incorporated in England and Wales under company registration number 3854965 whose registered office is at 5 Westbrook Centre, Cambridge, CB4 1YG, England, ON THE OTHER ("BANGO"). Please print a copy of this Agreement for Your records.
This Agreement sets out the terms and conditions under which BANGO is prepared to make Your Content available to End Users through the BANGO System within the Firefox Marketplace. Before BANGO will offer Your Content for sale to End Users through the BANGO System, You must first agree to the terms and conditions of this Developer Agreement (the "Agreement").
BY ACCEPTING THIS AGREEMENT BELOW, YOU, OR ANOTHER PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT, REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND YOU TO THIS AGREEMENT. The provision of notice to You that any of Your Content has been approved for resale through the BANGO System portion of the Firefox Marketplace shall constitute BANGO's acceptance of this Agreement whereupon this Agreement shall form a binding agreement between the parties.
You and BANGO agree as follows:
The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where they are defined.
A. "Content" means anything produced or published by You directly or indirectly, including digital media, applications, games, text, and other services in relation to the use of which End Users are required to pay fees.
B. "Authorized Network" means a wireless network which is owned or operated by a carrier (or carriers with whom that carrier has roaming agreements in place) that You indicate through the Developer Portal You are legally permitted, and wish, to have Content made available for use on wireless handhelds activated thereon.
C. "BANGO Purchase Price" means the price, due to You from BANGO, for each item of Content purchased from You by BANGO for resale through the BANGO System, which shall be calculated as 70% percent of the Suggested Retail Price (less any Taxes, such as sales taxes, included in the Suggested Retail Price) for each item of Content, and at BANGO's sole option net of any currency exchange costs, cross border transaction fees, withholding taxes on payments due to any person arising from or relating to Transactions and the distribution of any sums relating to Transactions, or carrier deductions.
D. "BANGO System" means the BANGO provided functionality through which BANGO sells Content to End Users through Firefox Marketplace
E. "Developer Portal" means the online interface provided by Mozilla through which You apply to have Content sold by BANGO through the BANGO System, and through which you provide information about the Content you wish BANGO to sell through the BANGO System.
F. "End User" means a person, organization or entity, which purchases or wishes to purchase a copy of Your Content through the BANGO System which is intended for its own use and not for resale.
G. "End User Data" means personally identifiable information about an End User provided in connection with a Transaction through the BANGO System, which may be collected, used or disclosed (in whole or in part) by or on behalf of BANGO.
H. "EULA" means an end user license agreement between You and an End User for Content purchased through the BANGO System, which an End User is required to enter into as a condition of the End User's use of Content.
I. "Firefox Marketplace" means the Mozilla owned and constructed appstore web portal that enables the purchase of Content through the BANGO System.
J. "Mozilla" means the Mozilla Foundation and its affiliates, and their respective successors and assigns.
K. "Service Providers" means third parties, such as mobile network operators (wireless carriers) and Mozilla, who provide capabilities to enable BANGO to sell Content through the Bango System.
L. "Suggested Retail Price" means the price that You provide through the Developer Portal as the recommended selling price of Content, which may be changed by You through the Developer Portal.
M. "Taxes" means any taxes payable by an End User with respect to a Transaction (it does not include any applicable taxes due to You from BANGO on Your sale of Content to BANGO for resale, which are addressed in Section 4(B) of this Agreement).
N. "Transaction" means the sale of Content through the BANGO System to an End User through a single order.
A. BANGO will only make available Content through the BANGO System if You and Your Content meet the following terms and conditions:
(1) Your Content must meet the requirements set out in the Firefox Marketplace guidelines, as amended from time to time, a copy of which may be found at https://developer.mozilla.org/en-US/Apps/Publishing/Marketplace_review_criteria. If any of Your Content does not meet the Firefox Marketplace guidelines, BANGO may, at its sole discretion, elect not to offer that Content, or cease sales of copies that Content, through the BANGO System.
(2) The information You provide to BANGO through the Developer Portal shall be accurate and truthful, and You shall immediately update such information through the Developer Portal in the event any such information changes.
(3) End Users must place orders themselves through the BANGO System. You are not permitted to place orders on behalf of End Users, nor to authorize anyone to place orders on an End User's behalf.
(4) You will provide BANGO with all necessary product information through the Developer Portal so that End Users do not need to contact You for additional information prior to a sale by BANGO of Content.
(5) You shall provide a Suggested Retail Price through the Developer Portal for each item of Content which You wish to make available through the BANGO System. The Suggested Retail Price must be provided to BANGO in the currencies and in the manner indicated in the Developer Portal. For the avoidance of doubt, while You may provide Suggested Retail Prices for copies of Your Content, BANGO is solely responsible for setting the price at which copies of Your Content will be sold by BANGO through the BANGO System, which may reflect Your Suggested Retail Price at BANGO's sole discretion.
(6) You will not submit through the Developer Portal any products other than Content (such as but not limited to products which are fulfilled physically), unless otherwise agreed to in writing by You and BANGO.
If BANGO determines at any time that You or any of Your Content does not meet or follow any of the provisions of this Agreement, or of any agreement between You and Mozilla relating to Firefox Marketplace, or that You are otherwise in breach of any provision of this Agreement, BANGO may, at its sole option, immediately suspend selling Your Content until such noncompliance and/or breach is remedied, and/or terminate this Agreement for uncured breach in accordance with the terms of this Agreement.
A. Submitting Content; Approval Process. You will submit to BANGO, through the Developer Portal, Content You would like BANGO to make available through the BANGO System, together with such information as is requested by BANGO, or on BANGO's behalf by Mozilla. Your submission of Content through the Developer Portal constitutes Your request for BANGO to sell such Content through the BANGO System. Nothing in this Agreement shall constitute BANGO's commitment or obligation to sell copies of Your Content. You further acknowledge and agree that BANGO may, at any time, in BANGO's sole discretion and for any reason whatsoever, remove, or have removed, Content from an End User’s wireless handheld device and Firefox Marketplace purchased content locker.
B. Legal Relationship; Sales of Copies of Your Content. You hereby grant to BANGO, the right to make copies of Your Content free of charge for its own internal use and testing purposes. When an order for Content is placed through the BANGO System by an End User, BANGO shall purchase from You and resell to that End User such Content along with the right to use the Content. BANGO and/or Mozilla shall have full control over the design, operation, features and functionality and End User terms and policies applicable to the Firefox Marketplace and BANGO System. Title to Content sold through the BANGO System to an End User shall pass from BANGO to that End User upon the completion of both: (a) BANGO's receipt of payment for that Content; (b) the provision to the End User of access to download the Content.
C. Your EULA. You shall provide an EULA under which You wish to license Your Content for the particular jurisdictions in which the Content is to be made available. This EULA shall at minimum, include provisions excluding BANGO (not necessarily by name, but at least by role, e.g. channel partners and associated Service Providers) from any liability whatsoever in relation to Your Content. You agree and acknowledge that any EULA You enter into with an End User is an agreement between You and the End User, and BANGO shall not be a party to that EULA.
D. End User Data. Because BANGO is the reseller to End Users of Your Content, BANGO is the party with whom the End User is transacting business for each Transaction. As such, the End User is giving his/her/its End User Data to BANGO. You agree that End User Data obtained in connection with a Transaction shall not be owned by You, and You shall not have any rights to such End User Data. Nothing in this Agreement shall restrict You from using for Your lawful business purposes any data provided to You directly by an End User in connection with that End User's registration or use of Content.
E. Support. You are solely responsible for, and agree to provide, reasonable operational and technical support and assistance to End Users in connection with their installation/un-installation, use, and operation of Your Content made available through the BANGO System along with a warranty for Your Content which is at a minimum consistent with the requirements of the laws in the jurisdiction of the End User. You must provide to BANGO, by means of the Developer Portal, an email address for technical and operational support. Please note that neither BANGO nor Mozilla will provide software help-desk or other forms of technical support concerning Your Content. BANGO's support (which may be provided by Mozilla on BANGO's behalf) is limited to assistance to End Users with the use of the BANGO System.
F. BANGO's Trademarks; Publicity. BANGO's trademarks, service marks and business names (BANGO's "Trademarks") are owned or licensed solely and exclusively by BANGO. You may only make any press release regarding this Agreement which includes BANGO's name, logo, or otherwise refers to BANGO, with prior written consent from BANGO to do so.
A. Sale of Content. For each item of content that BANGO sells to an End User, BANGO will purchase that copy from You for the BANGO Purchase Price. BANGO shall not be liable to pay any additional licensing or usage fees to You or to any third party. All amounts which BANGO owes You for the sale of Your Content shall be placed in a general in-house account maintained by BANGO and BANGO will pay You from that account as described below. You will not be entitled to interest on amounts held in BANGO's general in-house account while such amounts are in BANGO's possession.
B. Taxes.
(1) Sales Tax, VAT or other Business to Business Taxes. If there are any taxes ("B2B Taxes") which You are required to collect from BANGO on Your sale of Content to BANGO, You will be solely responsible for the payment of any and all such applicable B2B Taxes (or Your income derived therefrom) from the BANGO Purchase Price amounts paid to You by BANGO. You agree that You shall not have any right to separately invoice BANGO for B2B Taxes on Your sale of Content to BANGO, except that where law requires a separate invoice of any B2B Taxes, you shall have the right to send any such invoices to BANGO, marked "paid" as BANGO's payment of any amounts in such invoice(s) shall be considered already paid as part of the BANGO Purchase Price due to You from BANGO.
(2) Withholding Tax. In the event BANGO determines that withholding taxes are applicable to any payments due to You from BANGO, You agree and acknowledge that such payments by BANGO shall be net of any applicable withholding taxes. You shall provide to BANGO all data reasonably necessary for BANGO to support any B2B Taxes included in the purchase price of Content. You shall be solely responsible for, and shall hold BANGO harmless from and against, the calculation of B2B Taxes due from BANGO on Your sale of Content to BANGO, and any failure to collect B2B Taxes from BANGO on Your sale of Content to BANGO at the time of sale to BANGO and any claims, causes of action, costs (including, for example, reasonable attorney's fees) and any other liabilities of any nature whatsoever related to those taxes (including without limitation interest and penalties that result from any failure).
(3) VAT. If You are registered for VAT in the United Kingdom, You will need to provide to BANGO or to Mozilla, at BANGO's request, Your VAT number. If Your VAT status should change, or You sell all or part of your business, You must notify Bango in writing, immediately.
C. Returns and Refunds. BANGO, as the seller and merchant of record for the BANGO System, is responsible for setting and applying the returns policy applicable to the BANGO System.
If BANGO, at its option, provides a right of return for Content made available through the BANGO System, and BANGO accepts the return of Content in accordance with such right of return, You shall also accept the return of that particular item of Content, and shall refund the amount paid to You by BANGO in relation to that Content by way of BANGO setting off this amount against other monies otherwise owing to You. You further agree and acknowledge that BANGO will treat any non-fraudulent Chargeback or other non-fraudulent End User-, bank- or payment provider-initiated reversal of a previously completed payment as a validly accepted return and a refund validly provided by BANGO.
D. Chargebacks, Fraud and Suppressed Orders. A "Chargeback" is another form of refund that happens when a payment provider such as a mobile network operator (wireless carrier), a credit card processor, or acquiring bank unilaterally revokes a prior transaction, which may be done under the scheme rules of the mobile network operator, the credit card banking system for such reasons as fraud or suspected fraud, End User complaint, or other reasons determined at the sole discretion of the mobile network operator, the credit card processors and/or banks. BANGO makes no promises to You as to whether or how the mobile network operator, credit card processors and/or banks will interpret their rules or rights concerning Chargebacks. You acknowledge that mobile network operator and credit and debit card transactions through the BANGO System may be subject to a higher level of Chargeback activity compared to physical credit card Transactions with chip and PIN confirmation or wet-ink signatures.
For each Chargeback or other payment reversal in relation to Your Content sold through the BANGO System, You agree to allow BANGO to offset the amount of such Chargebacks and payment reversals against amounts due to You from BANGO, or invoice You for such amounts if BANGO is unable to offset such amounts. Further, any sale of Content where the fulfillment of that Content has been made on behalf of BANGO upon receipt of a valid payment authorization but is subsequently rejected, cancelled or uncollectible from an end user prior to settlement by BANGO, will not be treated as a completed sale to an End User by BANGO for the purposes of calculating payments due to You. This paragraph shall survive the termination or expiration of the Agreement.
E. Payment Method and Frequency. To provide a standardized, efficient and timely settlement process, BANGO requires You to agree to a Self-Billing Invoice ("SBI") system. The self-billing invoice is a standardized document that Bango produces each month on Your behalf, which You accept and agree to as the sole invoice document for settlement under this Agreement. This invoice relieves You of any requirement to produce Your own invoice in order to receive payments. This agreement to self-billing invoicing automatically renews every 12 months, unless You notify us in writing of Your intention to withdraw from the system. Within five (5) working days of the end of each calendar month BANGO will make available to You through the Developer Portal an indicative report (“Indicative Earnings Report”) of accrued BANGO Purchase Price amounts on sales of copies of Your Content, net of returns, chargebacks, applicable withholding taxes, and other amounts due to BANGO under this Agreement (“Indicative Earnings”). In the month following the month in which the Indicative Earnings Report is produced BANGO shall raise on Your behalf a SBI. SBIs shall confirm those amounts payable to You (“Due Amounts”) and BANGO shall pay You on the first working day of the next calendar month. You acknowledge that BANGO may split payment of a Due Amount into multiple contemporaneous payments based on the payment provider's requirements.
Payments shall be made to You via electronic bank transfer or other means as determined by BANGO. BANGO's payment obligations to You are subject to the following:
(1) BANGO may determine to hold back all or a portion of Your Due Amounts if BANGO has a reasonable basis to believe that it will likely be necessary to cover future refunds, charges against Your account, or other liabilities You may owe to BANGO. BANGO may also hold back all or a portion of Your Due Amounts if BANGO reasonably believes that the funds represent fraudulent transactions or involve other kinds of illegal activities or represent erroneous transactions. BANGO's statements or other communication from BANGO will note how much BANGO is holding back. BANGO will keep any held back amounts only for a reasonable time as determined in BANGO's sole discretion, and will promptly pay to You any remaining held back amounts after that reasonable time has passed. Regardless of any hold back BANGO may choose to keep, You agree to pay BANGO, upon demand, for any shortfall owed to BANGO due to refunds, Chargebacks, fraud, suppressed orders, or other fees for services rendered if they cannot be offset from Your account within ninety (90) calendar days of the date BANGO first seeks to offset such charges. If BANGO actually keeps (or sets off) any of the funds BANGO has held back against amounts due to You, BANGO will do so in a manner that BANGO believes fairly reflects Your liability owed to BANGO, and BANGO will note the set-off and provide You with an explanation of the set-off. BANGO shall be entitled to set off, against any holdback funds, any amount needed to reimburse BANGO for BANGO's costs or expenses of defending against any claims against BANGO related to Your breach of this Agreement, including an amount to pay any attorneys' fees BANGO incurs associated with any such claims.
(2) Any and all amounts payable to You under this Agreement shall be paid to You in the currency you select in the Developer Portal ("Package Currency"). Please note that, in circumstances where Transactions are processed in a currency other than Your Package Currency, Due Amounts may vary from Indicative Earnings due to currency exchange rate fluctuations between the date BANGO raises its report setting out Indicative Earnings and the date of production by BANGO of the SBI.
(3) You may not request that BANGO make payments of Due Amounts to a third party on Your behalf.
(4) If You do not object in writing to amounts retained by BANGO within thirty (30) calendar days of a given payment of a Due Amount from which such amounts are retained, or to an invoiced amount by the payment due date specified on the invoice, You shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount.
(5) BANGO may withhold payment of the relevant part of a Due Amount until the payment is received from the payment provider.
(6) BANGO may withhold payments of Due Amounts if the amount due to You is less than $50 (US Dollars) or £50 (UK pounds sterling) or €50 (Euros), in any settlement period, until the amount due exceeds this sum.
A. Mutual. You and BANGO each make the following representations, warranties and covenants to the other:
(1) Each party has full right, power and authority to enter into and fully perform its obligations under this Agreement, including without limitation the right to bind any party it purports to bind to this Agreement.
B. By You. You make the following additional representations, warranties and covenants to BANGO:
(1) You have all necessary rights to Content in the countries that you host it, deliver it or transport it and you indemnify Bango for any loss, damage, claims, costs and expenses that Bango incurs by reason of your breach of this provision.
(2) The Content You submit through the Developer Portal, including all content within and/or made available directly or indirectly by means of the Content, is not libelous, does not slander others, does not contain obscene or pornographic material, is not illegal to use and does not otherwise violate the Firefox Marketplace Guidelines in effect at the time of submitting each item of Content. Without limiting the foregoing, the Content You submit through the Developer Portal does not contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized or illegal actions on a computer system, or which transmits information or other data from a user's computer without notice to and the express prior consent of the End User. The Content You submit through the Developer Portal is not designed or usable as a tool for processing e-mail for mass mailing ("spamming" tools or the like).
(3) With respect to any promotion by You of Your Content that is made available through the BANGO System, You will not display any inaccurate or misleading information concerning Your identity or location, or inaccurate or misleading information concerning the role of BANGO as the seller and merchant of record to the End User for purchases of Your Content.
(4) You will not engage in deceptive trade practices, or directly solicit End Users or potential End Users who have not affirmatively consented to receive direct solicitations from You, or otherwise violate any laws, rules or regulations applicable to the sale of Your Content through the BANGO System to End Users on Authorized Networks and the conduct of Your business.
(5) You will not use commercial e-mail (solicited or unsolicited) to market Your Content if that use of commercial e-mail violates any applicable laws or regulations regarding the use of commercial e-mail. You will comply with any legal obligations to provide proper labeling and content within Your marketing e-mails, and to provide opt-in or opt-out capabilities to recipients and comply with any such requests.
A. Disclaimer of Warranties. Except as expressly set out herein, BANGO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE QUALITY OR AVAILABILITY OF THE DEVELOPER PORTAL, FIREFOX MARKETPLACE OR BANGO SYSTEM AND ANY OTHER SERVICES PROVIDED BY BANGO PURSUANT OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
BANGO FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS AND OMISSIONS OF ANY AND ALL THIRD PARTIES RELATED TO OR IN CONNECTION WITH THE PROVISION OF CARRIER BILLING SERVICES, INTEGRATION SERVICES, THE DEVELOPER PORTAL, FIREFOX MARKETPLACE OR BANGO SYSTEM OR THE PURCHASE OF YOUR CONTENT, INCLUDING WITHOUT LIMITATION THE PROVISION OF THE DEVELOPER PORTAL AND FIREFOX MARKETPLACE AND SERVICES PROVIDED TO BANGO BY MOZILLA, AND THE USE, SALE OR REDISTRIBUTION OF CONTENT BY AN END USER (WHETHER OR NOT PERMITTED BY ANY APPLICABLE EULA).
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY BANGO, OR FOR YOUR DISSATISFACTION WITH THE DEVELOPER PORTAL, FIREFOX MARKETPLACE OR BANGO SYSTEM OR THE SALE OF YOUR CONTENT PURSUANT TO THIS AGREEMENT, IS FOR YOU TO TERMINATE THIS AGREEMENT.
B. Indemnity. You agree to defend, indemnify, and hold harmless BANGO and its Service Providers, their successors and assigns, and their respective officers, directors, employees, representatives, from and against any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys' fees and costs (collectively, "Losses") in connection with a claim, action, suit or proceeding made, brought or commenced by a third party (each, a "Claim"), that any such party may incur or suffer, which arise, result from, or relate to: (i) Your breach of any of Your obligations, representations, warranties or covenants made by You hereunder, (ii) the actual or alleged infringement by Your Content or copies thereof, or other materials provided by You of any third party proprietary or intellectual property rights, or (iii) any liability arising from an End User's use of Your Content. The indemnified party will promptly notify You in writing of any Claim and will provide You all disclosable information in its possession (at the indemnified party's expense) and reasonable assistance (at Your sole expense) as reasonably necessary to evaluate and defend such Claim, and the authority to settle and/or defend such Claim only in accordance with the following sentence. You shall obtain each indemnified party's express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any Claim if such settlement (a) arises from or is part of any criminal action, suit or proceeding, or (b) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of that indemnified party, or (c) requires any specific performance or non pecuniary remedy by that indemnified party, or (d) requires the actual payment of any amount by that indemnified party. This indemnity shall survive termination of this Agreement.
C. Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM BANGO'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BANGO SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY LOST PROFITS, DATA, GOODWILL, LOSS OR INTERRUPTION OF BUSINESS, DELAY OF DELIVERY, OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
EXCEPT FOR ANY OBLIGATIONS BANGO HAS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1)) OR FOR BANGO'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IF, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BANGO, OR ITS SERVICE PROVIDERS, IS HELD LIABLE TO YOU FOR ANY DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THIS AGREEMENT, THE SALE OF YOUR CONTENT THROUGH THE BANGO SYSTEM, OR OTHERWISE FROM OUR RELATIONSHIP, BANGO'S AGGREGATE AND ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
NOTHING IN THIS AGREEMENT EXCLUDES BANGO'S LIABILITY FOR FRAUD CAUSED BY THE ACTIONS OR OMISSIONS OF BANGO, PERSONAL INJURY OR DEATH.
D. Other. THE LIMITATIONS UPON DAMAGES AND CLAIMS, AND DISCLAIMER OF WARRANTIES, SET FORTH IN THIS AGREEMENT FORM A FUNDAMENTAL AND ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN THIS SECTION 6, IN NO EVENT SHALL EITHER MOZILLA OR ANY SERVICE PROVIDERS HAVE ANY LIABILITY ARISING FROM, RELATING TO, OR RESULTING FROM THIS AGREEMENT.
A. Term. This Agreement starts on the date BANGO acknowledges its acceptance of this Agreement as set forth herein, and will last until either You or BANGO terminates this Agreement as set forth herein. Either party may terminate this Agreement with or without cause by providing the other party with no less than thirty (30) calendar days prior notice in writing of the terminating party's decision to terminate. In the event You are (in BANGO's sole opinion) in material breach or commit a series of breaches amounting to a material breach of this Agreement or have failed to perform any of Your material obligations under this Agreement, and have not cured such breach or failure within fourteen (14) calendar days of being notified by BANGO of such breach or failure, BANGO may terminate this Agreement on notice to You without further opportunity to cure. Further, BANGO may, at any time, terminate this Agreement by delivering to You notice of its decision to do so, if: (a) BANGO ceases to operate the BANGO System in connection with Firefox Marketplace; (b) BANGO is required to do so by law; (c) You are not in good standing with BANGO or Mozilla (other than due to a breach of this Agreement in which case the cure period set forth above shall apply).
B. Termination. Upon termination of this Agreement: (a) You will immediately cease any use of BANGO's name, logos or Trademarks, and remove any approved hyperlinks to the BANGO System that deal with the sale of copies of Your Content; (b) BANGO will promptly halt any sale of copies of Your Content through the BANGO System; (c) BANGO will continue to make payments to You of amounts due to You under this Agreement, on the regular pay cycle dates, until the time that Your account has reached a zero balance (BANGO's hold back rights as described in Section 4(E)(1) above, and Your obligation to pay BANGO for any shortfall in Your account, shall survive the termination of the Agreement); and (d) You will continue to be responsible for any liability that might arise out of Chargebacks, any infringement of intellectual property rights, any violation of laws, rules or regulations that may have occurred as a result of copies of Your Content being made available via the BANGO System, and any breach by You of the terms of this Agreement.
C. Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement, which provisions shall include without limitation sections 1, 2, 3(A), 3(D), 3(E), 3(F), 4, 5, 6, 7(B), 7(C), and 8.
A. Entire Agreement. Except as otherwise agreed in writing, these terms and conditions form the entire agreement between Bango and you, and supersede any prior agreement covering the same subject matter and any prior written or oral representations.
B. Changes to this Agreement. These terms and conditions are subject to change. In the event that any revisions are material in nature, BANGO will provide You with notice by posting the revised version of the Agreement on the Developer Portal after which the new ones will apply. Should you not accept the new terms and conditions, you may terminate this agreement, in which case the notice period and Termination provisions in this agreement will not apply.
C. Relationship of the Parties. You and BANGO are independent contractors of, and not an employee, agent or authorized representative of, the other. Neither party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other nor to make any representations or warranties to third parties on behalf of the other party. Mozilla and its affiliates shall be considered third party beneficiaries of sections 3(A), 3(C), 3(D), and 6 of this Agreement and shall be entitled to enforce these sections with respect to Mozilla and its affiliates only. There are no other third-party beneficiaries under this Agreement.
D. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of England and Wales, without respect to or application of its conflicts-of-laws provisions. If there are any disputes or conflicts related to or arising out of this Agreement, You and BANGO shall use reasonable means to resolve the conflict prior to starting any lawsuits or other litigation, including negotiation between management personnel capable of resolving the conflicts. However, in the event either You or BANGO should start any litigation arising out of this Agreement, You expressly agree that the litigation will take place exclusively in the courts located in London, England, and You expressly agree that any such court has personal jurisdiction over You. You waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.
E. Waiver; Severability. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by BANGO to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity of non-enforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provisions were omitted, and the invalid or non-enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-enforceable provision.
F. Notices. Notice may be given by email. You agree that Bango may give notice by sending an email to the address provided by You in the Developer Portal set-up process, or as later notified by you. You may send notices to Bango at Support@bango.com.
G. Other. Bango accepts no liability for loss of service caused by third parties over which Bango has no control.
Bango.net Ltd Firefox Marketplace Developer Agreement, 2013.