ThirdEye Gen, Inc Software Developer Agreement
ThirdEye Gen, Inc hereby also named “ThirdEye”
Developer or You: Any person or company who is registered and approved by ThirdEye to distribute Products in accordance with the terms of this Agreement.
Developer Account: A publishing account issued to Developers that enables the distribution of Products via ThirdEye Portal at developers.thirdeyegen.com
Device: Any device that can access ThirdEye Portal, as defined herein.
Developer Features: the trade names, trademarks, service marks, logos, domain names, and other distinctive Developer Features of each developer or party, respectively, as owned (or licensed) by such party from time to time.
ThirdEye: ThirdEye Gen Inc., a Delaware corporation with principal place of business at 300 Alexander Park, Princeton, NJ 08540, United States;
ThirdEye Portal: The software and services that ThirdEye has created and operates located at developers.thirdeyegen.com , which allow registered Developers in certain countries to distribute Products directly to users of Devices and other online tools or services provided by ThirdEye to developers to manage the distribution of Products and related functions.
Products: Software, content and digital materials distributed via ThirdEye Portal.
Payment Account: The Developer’s billing and/or payment info registered with a certified payment system and secured.
1.1 Developers can distribute Products via the ThirdEye App store with a valid Developer Account.
1.2 If you want to charge a fee for your Products, you must also register and maintain a valid Payment Account.
2. Accepting this Agreement
2.1 This agreement ("Agreement") forms a legally binding contract between you and ThirdEye in relation to your use of the ThirdEye App Store. You acknowledge that ThirdEye will, solely on your behalf, and not on ThirdEye’s behalf, display and make Products available for viewing, download and purchase by users. In order to use ThirdEye Portal to distribute Products, you must accept this Agreement and provide complete and accurate information. You may not distribute Products via ThirdEye Portal if you do not accept this Agreement.
2.2 You may not use ThirdEye Portal to distribute Products and may not accept the Agreement unless you are verified as a Developer in good standing. This Agreement will automatically terminate if you are (a) not a Developer in good standing, or (b) a person or entity barred from using ThirdEye APIs/SDK under the laws of the United States or other countries including the country in which you are resident or from which you use this software.
2.3 If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use ThirdEye Portal on behalf of your employer or other entity.
2.4 ThirdEye maintains FULL RIGHTS TO APPROVE OR DENY A SUBMITTED APP TO THE THIRDEYE PORTAL. Developers should follow the ThirdEye design and developer guidelines located at www.thirdeyegen.com/developers for developing ThirdEye apps. ThirdEye can approve or deny any app per ThirdEye’s terms & conditions.
3. Pricing and Payments.
3.1 This Agreement covers both Products you choose to distribute for free and Products for which you charge a Price. In order to charge a price for your Products, you must have a valid Payment Account with ThirdEye Portal.
3.2 Products are displayed to users on your behalf, at prices you establish in your sole discretion. ThirdEye may include applicable taxes in the price charged to users of ThirdEye Portal. You may set the price for your Products in the currencies permitted. ThirdEye may display the price of Products to users in their native currency, but it is not responsible for the accuracy of currency rates or currency conversion.
3.3 You are the merchant of record for Products you sell through ThirdEye Portal. The price you set for Products will determine the amount of payment you will receive. A Transaction Fee, as defined below, will be charged on the sales. If ThirdEye is required by applicable (local) legislation to withhold any taxes ("Withholding Taxes") on payments made or received by anyone of them, ThirdEye will also deduct an amount equal to such Withholding Taxes from the sales price. For the avoidance of doubt, Withholding Taxes include, but are not limited to, withholding tax obligations on cross-border payments or imposed by telecommunications taxes. The remainder (sales price less Transaction Fee, and less the amount equal to any Withholding Taxes) will be remitted to you. The per paid app split is 40% of the total app price to ThirdEye and 60% to the You (ThirdEye Developer) excluding any taxes or payment processor fees. This may be revised by ThirdEye from time to time at ThirdEye’s discretion and it is the Developer’s responsibility to check this agreement for updates. You are responsible for providing any applicable tax residency certificates to ThirdEye. If ThirdEye or its service provider does not receive such documentation, ThirdEye will withhold at the domestic withholding tax rate.
3.4 Developer is responsible for determining if a Product is taxable and the applicable tax rate for each taxing jurisdiction where Products are sold. Developer is responsible for remitting taxes to the appropriate taxing authority. If ThirdEye collects and remits value added taxes on customer payments (where required of ThirdEye by applicable local law) and this remittance fulfills the applicable requirements for value added taxes on those customer payments, such taxes will not be passed on to Developer by ThirdEye. Where ThirdEye is required to collect and remit taxes as described in this section, Developer and ThirdEye will recognize a supply from Developer to ThirdEye for tax purposes, and developer will comply with the relevant tax obligations arising from this additional supply.
3.5 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 start charging a user for a Product that was initially free unless the charge correlates with an alternative or updated version of the Product.
3.6 You Support Your Product. Buyers are instructed to contact the developer concerning any defects or performance issues in applications accessed, downloaded or installed from ThirdEye Portal. You will be solely responsible for, and ThirdEye will have no responsibility to undertake or handle support and maintenance of your Products and any complaints about your Products. You must supply and maintain valid and accurate contact information that will be displayed in each application detail page on ThirdEye Portal and made available to users for customer support and legal purposes. For paid Products or in-app transactions, you must respond to customer support inquiries within three (3) business days, and within 24 hours to any support or Product concerns stated to be urgent by ThirdEye. Failure to provide adequate information or support for your Products may result in low Product ratings, less prominent product exposure, low sales, billing disputes, or removal from ThirdEye Portal & App for ThirdEye App Store.
3.7 Authority to Refund. You authorize ThirdEye to give the buyer a full refund of the price of a Product or in-app transaction on your behalf if the buyer requests the refund at any time after purchase. User refunds may be exclusive of taxes previously charged to users for Product purchases. Except in cases when multiple disputes are initiated by a user, billing disputes for Products sold for less than $5, and any handling fees charged, may be automatically charged back to the Developer except in cases when ThirdEye determines in its sole discretion that the user initiating the dispute has an abnormal dispute history. Chargeback requests for Products $5 or more will be handled in accordance with the Payment System's standard policy.
3.8 Reinstalls. Users are allowed unlimited reinstalls of each previously installed Product, provided however that if you remove such a Product(s) from ThirdEye Portal pursuant to clauses (i), (ii), (iii) or (iv) of Section 7.1, such Product(s) shall be removed from all portions of ThirdEye Portal and users shall no longer have a right or ability to reinstall the affected Products.
4. Use of ThirdEye Portal by You
4.1 Except for the license rights granted by you in Section 5 below, ThirdEye 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 Products.
4.2 You agree to use ThirdEye Portal 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 ThirdEye Portal 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. If the user provides your Product with ThirdEye Account information, your Product may only use that information to access the user's ThirdEye Account when, and for the limited purposes for which, the user has given you permission to do so.
4.4 Prohibited Actions. You agree that you will not engage in any activity with ThirdEye Portal, 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, ThirdEye users, ThirdEye or any mobile network operator. You may not use customer information obtained from ThirdEye Portal to sell or distribute Products outside of ThirdEye Portal.
4.5 Alternative Stores. You may not use ThirdEye Portal to distribute or make available any Product which has a purpose that facilitates the distribution of software applications and games for use on devices outside of ThirdEye Portal.
4.6 You agree that you are solely responsible for (and that ThirdEye has no responsibility to you or to any third party for) any Products you distribute through ThirdEye Portal including use of any ThirdEye APIs and for the consequences of your actions (including any loss or damage which ThirdEye may suffer) by doing so. These consequences include, but are not limited to, product liability, consumer protection, and/or intellectual property claims relating to your products.
4.7 You agree that you are solely responsible for (and that ThirdEye 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 ThirdEye or any third party may suffer) of any such breach.
4.8 Product Ratings. ThirdEye Portal will allow users to rate and review certain Products. Only users who download the applicable Product will be able to rate and review it on ThirdEye Portal. Product ratings may be used to determine the placement of Products on ThirdEye Portal, subject to ThirdEye's ability to change placement at ThirdEye's sole discretion. ThirdEye Portal may also assign you a composite score for any Product that has not received user ratings. For new Developers without Product history, ThirdEye may use or publish performance measurements such as uninstall and/or refund rates to identify or remove Products that are not meeting acceptable standards, as determined by ThirdEye. ThirdEye reserves the right to display Products to users in a manner that will be determined at ThirdEye's sole discretion.
Your Products may be subject to user ratings to which you may not agree. You may contact ThirdEye if you have any questions or concerns regarding such ratings at email@example.com with your Developer ID and App Info.
4.9 Marketing Your Product. You will be responsible for uploading your Products to ThirdEye Portal, providing required Product information and support to users, and accurately disclosing the security permissions necessary for the Product to function on user Devices. Products that are not uploaded in accordance with this clause will not be published.
5. License Grants
5.1 You grant to ThirdEye a nonexclusive, worldwide, and royalty-free license to: reproduce, perform, display, advertise, analyze, and use the Products in connection with (i) the operation and marketing of ThirdEye Portal; (ii) the marketing of devices and services that support the use of the Products, (iii) making improvements to ThirdEye Portal, and (iv) checking for compliance with this Agreement.
5.2 You grant to ThirdEye a non-exclusive, and royalty-free license to distribute the Products in the manner indicated in the ThirdEye Portal.
5.3 ThirdEye may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this agreement, provided that such consultants and contractors will be subject to the same obligations as ThirdEye. After termination of this Agreement, ThirdEye will not distribute your Product, but may retain and use copies of the Product.
5.4 You grant to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Product on the Device.
5.5 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 ThirdEye Portal 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. Developer Features and Publicity
6.1 Each party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Developer 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 Developer Features of the other party. Subject to the terms and conditions of this Agreement, Developer grants to ThirdEye and its affiliates a limited, non-exclusive, royalty-free license during the term of this Agreement to display Developer Features, submitted by Developer to ThirdEye, 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 ThirdEye Portal, or to otherwise fulfill its obligations under this Agreement. If Developer discontinues the distribution of specific Products via ThirdEye Portal, ThirdEye will cease use of the discontinued Products' Developer Features pursuant to this Section 6.1, except as necessary to allow ThirdEye to effectuate Section 3.8. Nothing in this Agreement gives Developer a right to use any of ThirdEye's trade names, trademarks, service marks, logos, domain names, or other distinctive Developer Features.
6.2 Publicity. In addition to the license granted in 6.1 above, for purposes of marketing the presence, distribution and sale of the Developer's Product via ThirdEye Portal and its availability for use on devices and through other ThirdEye services, ThirdEye and its affiliates may include Developer Features, submitted by Developer to ThirdEye: (i) within ThirdEye Portal and in any ThirdEye-owned online or mobile properties; (ii) in online, mobile, television, out of home (e.g. billboard), and print advertising formats outside of ThirdEye Portal when mentioned along with other ThirdEye Portal Products; (iii) when making announcements of the availability of the Product; (iv) in presentations; and (v) in customer lists which appear either online or on mobile devices (which includes, without limitation, customer lists posted on ThirdEye websites). If Developer discontinues the distribution of specific Products via ThirdEye Portal, ThirdEye will cease further use of the discontinued Products' Developer Features for such marketing purposes.
7. Product Takedowns.
7.1 Your Takedowns. You may remove your Products from future distribution via ThirdEye Portal at any time, but you must comply with this Agreement and the Payment System’s terms of service for any Products distributed through ThirdEye Portal, including but not limited to refund requirements. Removing your Products from future distribution via ThirdEye Portal 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 ThirdEye Portal 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 ThirdEye maintain on any portion of ThirdEye Portal (including, without limitation, the part of ThirdEye Portal where previously purchased or downloaded applications are stored on behalf of users) any Product that you have removed from ThirdEye Portal and provided written notice to ThirdEye 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, (ii) an allegation of defamation or actual defamation, (iii) an allegation of violation, or actual violation, of any third party's right of publicity or privacy, or (iv) an allegation or determination that such Product does not comply with applicable law.
If you remove a Product from ThirdEye Portal pursuant to clauses (i), (ii), (iii) or (iv) of this Section 7.1, and an end user purchased such Product within a year before the date of takedown, at ThirdEye’s request, you must refund to the affected end user all amounts paid by such end user for such affected Product, less the portion of the Transaction Fee specifically allocated to the credit card/payment processing for the associated transaction.
7.2 ThirdEye Takedowns. While ThirdEye does not undertake an obligation to monitor the Products or their content, if ThirdEye is notified by you or otherwise becomes aware and determines in its sole discretion that a Product or any portion thereof or your Developer 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; (c) is pornographic, obscene or otherwise violates ThirdEye's hosting policies or other terms of service as may be updated by ThirdEye from time to time in its sole discretion; (d) is being distributed by you improperly; (e) may create liability for ThirdEye (f) is deemed by ThirdEye to have a virus or is deemed to be malware, spyware or have an adverse impact on ThirdEye's or an Authorized Carrier's network; (g) violates the terms of this Agreement or (h) the display of the Product is impacting the integrity of ThirdEye servers (i.e., users are unable to access such content or otherwise experience difficulty), ThirdEye may remove the Product from ThirdEye Portal or reclassify the Product at its sole discretion. ThirdEye reserves the right to suspend and/or bar any Developer from ThirdEye Portal at its sole discretion. If your Product contains elements that could cause serious harm to user devices or data, ThirdEye may at its discretion disable the Product or remove it from devices on which it has been installed. ThirdEye may suspend or terminate distribution of your Products if you materially breach the terms of any non-disclosure agreement or other agreement relating to ThirdEye Portal or the ThirdEye platform.
ThirdEye enters into distribution agreements with device manufacturers and Authorized Carriers to place the ThirdEye Portal software client application(s) on Devices. These distribution agreements may require the involuntary removal of Products in violation of the Device manufacturer's or Authorized Carrier's terms of service.
In the event that your Product is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third party's right of publicity or privacy, 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 ThirdEye, all amounts received, plus any associated fees (i.e. chargebacks and payment transaction fees), and (ii) ThirdEye 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 ThirdEye may issue to you or which you may choose yourself and that you will be solely responsible for all Products that are developed under your developer credentials. ThirdEye 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 ThirdEye Portal, ThirdEye may collect certain usage statistics from ThirdEye Portal and Devices, including but not limited to, information on how ThirdEye Portal and Devices are being used.
10. Terminating this Agreement
10.1 This Agreement will continue to apply until terminated by either you or ThirdEye as set out below.
10.2 If you want to terminate this Agreement, you must provide ThirdEye with thirty (30) days prior written notice (unless this Agreement terminates under Section 14.1) to firstname.lastname@example.org with title “Withdraw App from ThirdEye App Store” and cease your use of any relevant developer credentials.
10.3 ThirdEye may at any time, terminate this Agreement with you if:
(A) you have breached any provision of this Agreement; or
(B) ThirdEye is required to do so by law; or
(C) you cease being an authorized Developer; or
(D) ThirdEye decides app is not suited for the ThirdEye Portal.
11. DISCLAIMER OF WARRANTIES
11.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THIRDEYE PORTAL IS AT YOUR SOLE RISK AND THAT THIRDEYE PORTAL IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
11.2 YOUR USE OF THE THIRDEYE PORTAL AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIRDEYE PORTAL 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 THIRDEYE 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 THIRDEYE 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 THIRDEYE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
13.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless ThirdEye, its affiliates and their respective directors, officers, employees and agents, and Authorized Carriers 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 ThirdEye Portal 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.
13.2 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the applicable Payment Systems (which may include ThirdEye and/or third parties) and the Payment Systems' affiliates, 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 taxes related to Your distribution of Products distributed via ThirdEye Portal.
14. Changes to the Agreement
14.1 ThirdEye may make changes to this Agreement at any time by sending the Developer notice by email describing the modifications made. ThirdEye will also post a notification on this page and/or on the ThirdEye News Section describing the modifications made. You should look at the Agreement, and check for notice of any changes, regularly. Changes will not be retroactive. They will become effective, and will be deemed accepted by Developer, (a) immediately for those who become Developers after the notification is posted, or (b) for pre-existing Developers, on the date specified in the notice, which will be no sooner than 30 days after the changes are posted (except changes required by law which will be effective immediately). If you do not agree with the modifications to the Agreement, you must terminate your use of ThirdEye Portal, which will be your sole and exclusive remedy. You agree that your continued use of ThirdEye Portal constitutes your agreement to the modified terms of this Agreement.
15. General Legal Terms
15.1 This Agreement constitutes the whole legal agreement between you and ThirdEye and governs your use of ThirdEye Portal and completely replaces any prior agreements between you and ThirdEye in relation to ThirdEye Portal.
15.2 You agree that if ThirdEye does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which ThirdEye has the benefit of under any applicable law), this will not be taken to be a formal waiver of ThirdEye's rights and that those rights or remedies will still be available to ThirdEye.
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 ThirdEye 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 DISTRIBUTED VIA THIRDEYE PORTAL 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 ThirdEye without the prior written approval of the other party. Neither you nor ThirdEye shall be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other party. Any other attempt to assign is void. If you experience a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) you will give written notice to ThirdEye within 30 days after the change of control; and (b) ThirdEye may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.
15.7 All claims arising out of or relating to this Agreement or your relationship with ThirdEye under this Agreement, shall be governed by the laws of the State of Delaware excluding Delaware’s conflict of laws provisions. You and ThirdEye further agree to submit to the exclusive jurisdiction of the federal or state courts located within the state of Delaware to resolve any legal matter arising from or relating to this Agreement or your relationship with ThirdEye under this Agreement, except that you agree that ThirdEye shall be allowed to apply for injunctive relief in any jurisdiction.
15.8 The obligations in Sections 5, 6.1 (solely as necessary to permit ThirdEye to effectuate Section 3.8), 7, 11, 12, 13, and 15 will survive any expiration or termination of this Agreement.