Terms and Conditions

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Terms and Conditions:

Welcome to the Embarcadero AppWave Store (the "Store") and Embarcadero’s selling services (the "Service(s)"). Any person who wants to access the Store and use the Service(s) to sell items must accept the terms and conditions of this Agreement without change. BY REGISTERING FOR AND USING THE SERVICES, YOU OR, IN THE CASE OF A COMPANY, THE COMPANY, (IN EACH CASE “SELLER”) AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS PARTICIPATION AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE STORE ARE INCORPORATED BY REFERENCE.

SELLER’S CONTINUED USE OF THIS STORE AND THE SERVICES FOLLOWING EMBARCADERO’S POSTING OF ANY CHANGES TO THIS AGREEMENT WILL CONSTITUTE SELLER’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF SELLER DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS STORE.

Eligibility. Use of the Store and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to use the Services. To register, Seller must provide a contact name, company name (if entering into this Agreement as an entity) address, phone number, e-mail address, and valid credit card information. Seller represents and warrants that: (a) if Seller is a business, it is duly organized, validly existing and in good standing under the laws of the country in which its business is registered and that Seller is registering for the Services within such country; and (b) Seller has all necessary right, power and authority to enter into this Agreement and perform its obligations hereunder.

DEFINITIONS

(a) “AppWave” means Embarcadero’s software and technologies for delivering, searching, socializing, licensing, managing, purchasing, and running applications.

(b) “AppWave Licensing Engine” means the Embarcadero technology that provides serial and network license generation, activation and management.

(c) “Business to Business Sales (B to B)” means a sale of Seller Product(s) that was transacted through a purchase order or contract directly between the End User customer and Embarcadero, and where Embarcadero also will receive payment directly from the End User customer.

(d) “Business to Consumer Sales (B to C)” means a sale of Seller Product(s) that was transacted through Embarcadero’s Store and the payment for which is processed through Embarcadero’s ecommerce vendor/credit card payment processor.

(e) “Embarcadero” means Embarcadero Technologies, Inc. and all of its subsidiaries.

(f) “Embarcadero Software” means AppWave, the SDK, the AppWave Licensing Engine and any other software provided by Embarcadero in connection with this Agreement.

(g) "End User(s)" means a third party to whom a license to the Seller Product is sold by Embarcadero or Reseller.

(h) “EULA” means a license agreement whereby Seller licenses to the End User the Seller Product(s).

(i) “Master,” “Mastered,” and “Mastering” means to package, having packaged or packaging an application so it can be used in AppWave.

(j) “Mastered Seller Product(s)” means Seller product(s) that have been Mastered.

(k) “Mastering Template(s)” means the set of packaging instructions used to Master an application.

(l) “Net Sales Price” means the net price paid by an End User for a completed purchase, excluding any applicable taxes and any fees received in connection with media kits.

(m) "Reseller(s)" means one or more third parties appointed by Embarcadero to resell the Seller Product(s) directly to End User(s) or to other resellers for eventual sale to End User(s).

(n) “SDK” means certain AppWave software development kit technology and documentation used to Master the Seller Product(s) for use by AppWave.

(o) “Seller” means the party other than Embarcadero that enters into this Agreement.

(p) "Seller Product(s)" means Seller product(s) it wishes to make available for sale on the Store and includes support and maintenance if offered by Seller and any Updates.

(q) "Updates” mean error corrections, enhancements, modifications, and new releases to the Seller Product(s).

LICENSE GRANTS

(a) Grant. Seller hereby appoints Embarcadero as Seller’s agent for the marketing and delivery of the Seller Product(s) directly to End User(s) and through Reseller(s).

(b) Additional Rights. In furtherance of Seller’s appointment under 2(a) Seller hereby grants Embarcadero a worldwide license to and authorizes and instructs Embarcadero to (and to authorize Reseller(s) to):

  • (i) market, solicit and obtain orders on Seller’s behalf for Seller Product(s) from End User(s) worldwide;
  • (ii) provide hosting services to Seller, in order to allow for the storage of, and End User access to, the Seller Product(s);
  • (iii) make copies of (including onto tangible media), format, and otherwise prepare Seller Product(s) for acquisition, distribution and download by End User(s) for use on AppWave;
  • (iv) allow End User(s) to access copies of the Seller Product(s), so that End User(s) may acquire from the Store and electronically download those Seller Product(s), and associated metadata, if any, produced by the AppWave product to End User(s) through the Store;
  • (v) use screen shots of the Seller Product(s), tradenames, trademarks, service marks and logos associated with the Seller Product(s), and Seller Product(s) information, and use images and other materials that Seller may provide to Embarcadero, at Embarcadero’s reasonable request, for promotional purposes in marketing materials and for inclusion within and distribution with Embarcadero’s AppWave products distributed to End User(s) for the purpose of indicating that the Seller Product(s) are Mastered and available for use by the AppWave product;
  • (vi) use and display the Seller Product(s) to potential end users for demonstration and promotional purposes, including without limitation in person and over the internet; and
  • (vii) otherwise use Seller Product(s), and associated metadata required to run the Mastered Seller Product(s) as may be reasonably necessary in the marketing and delivery of the Seller Product(s) in accordance with this Agreement.

(c) Mastering Template. Seller hereby grants Embarcadero an exclusive, sublicensable, royalty-free, fully paid up, worldwide perpetual and irrevocable license to:

  • (i) use the Seller Product(s) to create AppWave Mastering Templates and distribute AppWave with such Mastering Templates and distribute AppWave as enabled to run with Seller Product(s) to End User(s);
  • (ii) use the Seller Product for the limited purpose of compatibility testing of the Seller Product with the AppWave product, for finding and fixing bugs in the AppWave product and for purposes of providing other information to Seller (e.g. crash logs); and
  • (iii) create, copy, modify, use, sell, distribute and make available for use the Mastering Template used to enable AppWave to operate with the Seller Product(s), in each case to the extent that Embarcadero does not own the rights in the Mastering Template.

Embarcadero may retain or distribute any AppWave Mastering Templates created or modified by Seller for use with Seller’s applications with AppWave.

SDK LICENSE

Embarcadero may provide Seller access to certain SDK technology to Master the Seller Product(s). Seller’s use of the SDK may only be in accordance with the license that accompanies the SDK. Seller agrees that the Mastered Seller Product(s) created using the SDK may only be sold or distributed through the Embarcadero AppWave Store or otherwise provided through the Embarcadero AppWave Store. Seller shall not sell or distribute the Mastered Seller Product(s) to any third party except through the Embarcadero AppWave Store. Seller shall not resell or redistribute AppWave or any AppWave components, including but not limited to AppWave, the SDK, the AppWave Browser, AppWave Studio, application interfaces, or Mastering Templates, in any form.

ADDITIONAL TERMS

(a) Principal Agent Relationship. The parties acknowledge and agree that their relationship under this Agreement is, and shall be, that of principal and agent and that Seller, as principal, is, and shall be, solely responsible for any and all claims and liabilities involving or relating to, the Seller Product(s). The parties acknowledge and agree that Seller’s appointment of Embarcadero as Seller’s agent is non-exclusive (provided that Embarcadero is the exclusive agent for selling Mastered Seller Product(s)).

(b) EULA. The Seller Product licenses sold will be subject to the EULA. Seller acknowledges and agrees that it is its responsibility to provide a EULA with the Seller Product(s). Seller represents that it has provided a EULA in the Seller Product(s) and agrees that Embarcadero has no responsibility to provide a EULA and Seller further agrees to indemnify and hold Embarcadero harmless for Seller’s failure to do so. There are no provisions in Seller’s EULA that would conflict with the End User’s right to use Seller’s Product with AppWave or the End User’s right to use a Mastering Template, and if there are any such conflicts, Seller hereby waives such provisions of Seller’s EULA and hereby grants the End User the rights to use Seller’s Product with AppWave regardless of any conflicting terms in Seller’s EULA. Any EULA for Seller’s Software is strictly an agreement between Seller and the End User and Embarcadero is not a party to that EULA. In the event that Seller does not have a EULA, Embarcadero may present to End User its standard license template and Seller shall honor those terms and conditions between itself and the End User.

(c) Limitations. Embarcadero agrees, except as permitted in this Agreement: (i) not to modify, port, translate, or localize, the Seller Product(s); and (ii) not to decompile, disassemble or otherwise reverse engineer the Seller Product(s).

Embarcadero reserves the right to require all Seller Product(s) to be Mastered as a condition of continuing to sell such Seller Product(s) through the AppWave Store.

(d) End User Information. Embarcadero may elect to retain sole and exclusive control over the distribution of all End User information. Embarcadero, in its sole discretion, may provide Seller with access to certain End User information (excluding payment account information) in connection with reporting to Seller of sales of Seller Product(s). Seller shall only use End User information in compliance with Embarcadero’s publicly displayed privacy policy and with all applicable laws and regulations. The End User information may only be used by the Seller to provide product support. Seller further agrees and acknowledges that Reseller(s) will have access to this information to provide the Services.

(e) Acceptable Conduct Policy. Seller shall comply at all times with the Acceptable Conduct Policy as set forth in Exhibit A and as updated from time to time.

(f) Proprietary Rights. Seller and/or its licensors retain any and all right, title and interest in and to the Seller Product(s). Embarcadero will not remove, or authorize removal of, any Seller copyright, trade secret or other proprietary rights notice from any Seller Product. Embarcadero retains any and all right, title, and interest in and to any intellectual property, including but not limited to, any patent, copyright, trademark or trade secret used with or in the Embarcadero Software.

(g) AppWave Licensing Engine. In connection with Mastered Seller Product(s), Seller must use Embarcadero’s AppWave Licensing Engine. Seller understands and agrees that the AppWave Licensing Engine provides a consistent set of licensing rules (for example a desk top license or a concurrent license). Seller shall abide by those licensing rules and agrees that from time to time Embarcadero may change those licensing rules at its discretion. SELLER UNDERSTANDS THAT NO COPY PROTECTION SYSTEM CAN BE FREE FROM CIRCUMVENTION AND THEREFORE SELLER AGREES THAT EMBARCADERO WILL HAVE NO LIABILITY OF ANY KIND IN THE EVENT THE APPWAVE LICENSING ENGINE IS CIRUMVENTED OR COMPROMISED.

(h) Confidentiality. "Embarcadero Confidential Information" means (i) trade secrets, proprietary information, software and software applications (including source code, object code, application programming interfaces, programming notes and other materials and documents which may assist a reasonably skilled programmer to use, maintain, understand, enhance and amend the software in question), ideas, techniques, sketches, drawings, diagrams, schematics, works of authorship, models, patterns, inventions, know-how, processes, apparatuses, equipment, algorithms, and formulae related to current, future, and proposed products and services, (ii) information concerning research, experimental work, development, design details and specifications, and other technical business information, (iii) financial information, customer lists, business forecasts, sales and merchandising information, contractual relationships and marketing plans, and (iv) any other information that Embarcadero designates as confidential. Seller agrees that all pre-release or field test versions of the Embarcadero Software and services and any terms and conditions contained herein that disclose pre-release features of the Embarcadero Software or services will also be deemed "Embarcadero Confidential Information;" provided however that upon the commercial release of the Embarcadero Software the terms and conditions that disclose pre-release features of the Embarcadero Software or services will no longer be confidential. Seller shall protect Embarcadero Confidential Information using at least the same degree of care that Seller uses to protect its own confidential information, but in no event less than a reasonable degree of care. Seller shall use Embarcadero Confidential Information solely for the purpose of exercising Seller rights and performing Seller obligations under this Agreement and Seller shall not use Embarcadero Confidential Information for any other purpose, for Seller’s own or any third party’s benefit, without Embarcadero’s prior written consent. Seller further agrees not to disclose or disseminate Embarcadero Confidential Information to anyone other than: those of its employees and contractors who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the Embarcadero Confidential Information. Seller shall promptly report to Embarcadero any actual or suspected violation of these obligations and shall take all reasonable and necessary further steps requested by Embarcadero to prevent or remedy any such violation.

PAYMENT OBLIGATIONS

(a) Fees. Seller is solely responsible for setting the End User price and maintaining current company and product information on the Store. Embarcadero will pay Seller seventy percent (70%) of the Net Sales Price for every approved order (“Fee(s)”). No Fees will be due for trial copies. Embarcadero will pay Seller monthly in US Dollars by PayPal at the end of the month following the month of Embarcadero’s receipt of payment in full for Seller Product sales made during that period. Other methods of payment may be agreed upon with Embarcadero on a case by case basis. Media kits may be produced and provided to End User(s) at Embarcadero’s discretion.

(b) Chargebacks and Refunds. Seller agrees that except where prohibited by law the Store policy is that there are no returns and no refunds. Notwithstanding the foregoing, Embarcadero reserves the right to refund to the End User the full amount paid by the End User for that Seller Product in the following circumstances: (i) Embarcadero reasonably believes that an order has been submitted fraudulently; (ii) where required by law; (iii) where Embarcadero believes a chargeback appears very likely or does occur; (iv) where legal proceedings appear very likely to result from the order; (v) a Seller Product fails to conform to Seller’s specifications or Seller’s product warranty; or (vi) Seller does not fulfill its obligations under this Agreement that are necessary to enable Embarcadero to sell and distribute Seller’s Product(s). In the event that Embarcadero refunds the amount paid by an End User, Seller shall reimburse, or grant Embarcadero a credit for, an amount equal to the Fee for that Seller Product. Seller agrees that in the event of a chargeback, Seller will be charged $20 per chargeback to cover Embarcadero’s costs related to the chargeback. Each party shall inform the other party promptly in the event of any End User claims made regarding the Seller Product(s).

(c) Exchange Rates. Translation to local currency for purpose of calculating the selling price of Seller Product(s) or the Fees may be done by Embarcadero in one of several ways, at its sole discretion, including but not limited to spot method or average method.

(d) Program Fees. As consideration for Seller’s participation in the Store and for the provision of the Services, Seller agrees to pay the annual seller participation fee of US$99 payable with a credit card using the Store’s shopping cart feature. The fees are non-refundable. Any taxes that may be levied on the program fee shall be Seller’s responsibility. Seller’s program fees must be paid up and not in arrears at the time Seller submits Seller Product(s) to Embarcadero, and Seller’s continued use of the Store is subject to Seller’s payment of such fees.

(e) Removal from Store. Seller acknowledges that in Embarcadero’s sole discretion with or without advance notice, Embarcadero may decline to sell or distribute any or all of Seller Product(s) at any time and therefore may remove Seller Product(s) from the Store immediately for any reason or no reason.

(f) Taxes. For Business to Business Sales: Embarcadero shall have the responsibility for collection and payment of sales taxes or VAT in connection with the sale of the Seller Product(s), based on Embarcadero’s current nexus and/or business practice of the Embarcadero subsidiary/location billing the End User customer. Embarcadero will be the merchant of record and will collect and pay all related sales taxes or VAT (exclusive of taxes on Seller's net income), duties and assessments arising in connection with Embarcadero's sale or distribution of the Seller Product(s). Seller will be responsible, and shall indemnify and hold Embarcadero harmless, for payment of all taxes, fees, duties and other governmental charges arising from the payment of fees by Embarcadero to Seller.

For Business to Consumer Sales: Seller understands and acknowledges that Embarcadero’s ecommerce vendor will act as merchant of record and therefore will collect and remit or reimburse all federal, state and local taxes (exclusive of taxes on Seller's net income), duties and assessments arising in connection with Embarcadero's sale or distribution of the Seller Product(s). Embarcadero shall have no responsibility for payment of sales taxes or VAT in connection with the sale of the Seller Product(s). Seller will be responsible, and shall indemnify and hold Embarcadero harmless, for payment of all taxes, fees, duties and other governmental charges arising from the payment of fees by Embarcadero to Seller.

END USER CUSTOMER SERVICE AND SUPPORT OBLIGATIONS

(a) Embarcadero’s Obligations. Embarcadero shall be primarily responsible for any End User customer service issues related to use of the AppWave browser (but not in connection with Seller Product issues while running on AppWave) use of the Store and its shopping cart to make purchases, as well as deliveries by use of Software downloads, license keys and/or tokens.

(b) Seller Support Obligations. Seller shall be solely responsible for providing support and maintenance services for the Seller Product(s) to the End User(s).

WARRANTIES

(a) Seller Representations and Warranties.

Seller represents and warrants that: (i) Seller has the right to enter into this Agreement, to reproduce and distribute each of the Seller Product(s), including but not limited to any third party license rights required, and to authorize Embarcadero to permit End User(s) to download and use each of the Seller Product(s) through one or more Stores; (ii) the Seller Product(s) and Embarcadero’s or End User(s)’ exercise of the rights granted herein do not and will not violate or infringe any patent, copyright, trademark, trade secret or other intellectual property or contractual rights of Embarcadero or any other person, firm, corporation or other entity; (iii) each of the Seller Product(s) is authorized for distribution, sale and use in, export to, and import worldwide, in accordance with the laws and regulations of those countries and all applicable export/import regulations; (iv) none of Seller Product(s) contains any obscene, offensive or other materials that are prohibited or restricted under the laws or regulations of any country; (v) all information Seller provided to Embarcadero or entered into the Store, including any information relating to Seller Product(s), is accurate and that, if any such information ceases to be accurate, Seller will promptly update it to be accurate; (vi) that the Seller Product(s) as delivered by Seller shall not contain any viruses, worms, Trojan horses or other malicious or destructive code; and (vii) the proposed distribution of the Seller Product(s) complies fully with the terms of any open source software license agreement.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(b) Embarcadero Warranties. Embarcadero warrants that it will use commercially reasonable efforts to provide the Service(s) and access to the Store. Embarcadero reserves the right at its discretion to add to or remove from the Embarcadero Software and the Store features and functionality. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE EMBARCADERO SOFTWARE, APPWAVE LICENSING ENGINE, THE STORE AND ANY SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND EMBARCADERO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE EMBARCADERO SOFTWARE, EMBARCADERO APPWAVE LICENSING ENGINE, THE STORE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

INDEMNIFICATION

(a) Embarcadero shall have no responsibility for the installation and/or use of any of the Seller Product(s) by any End User. Seller shall be solely responsible for any and all product warranties, End User assistance and product support with respect to each of the Seller Product(s). Seller shall be solely responsible for, and Embarcadero shall have no responsibility or liability whatsoever with respect to, any and all claims, suits, demand, proceeding, liabilities, losses, damages, costs and expenses arising from, or attributable to, the Seller Product(s) and/or the use of those Seller Product(s) by any End User, including, but not limited to: (i) claims of breach of warranty, whether specified in the EULA or established under applicable law; (ii) product liability claims; and (iii) claims that any of the Seller Product(s) and/or the End User’s possession or use of those Seller Product(s) infringes the copyright or other intellectual property rights of any third party (each of (i)-(iii), an “End User Claim”). Seller shall defend, indemnify and hold Embarcadero harmless against any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or related or attributable to: (A) the Seller Product(s); (B) Seller’s failure to fulfill or perform any of Seller’s obligations under the EULA for those Seller Product(s); (C) Seller’s failure to fulfill any of its support or maintenance obligations; (D) Seller’s failure to fulfill or perform any of Seller’s obligations under this Agreement; (E) any breach of Seller’s representations and warranties herein; (F) any breach of Seller’s obligations under the Acceptable Conduct Policy; (G) any breach of Section 11(k) export; or (H) any End User Claim (each of (A)-(H), an “Indemnified Claim”).

(b) Embarcadero will notify Seller of any Indemnified Claim. Upon receipt of notice, whether formal or informal, direct or indirect, of any Indemnified Claim, Seller will promptly defend and continue the defense of such Indemnified Claim at the Seller’s expense. Embarcadero may, at its sole option, elect to assume the defense of any such Indemnified Claim, at Seller’s sole cost and expense. Seller may not, without Embarcadero’s prior written consent, which consent shall be subject to Embarcadero’s sole discretion, settle, compromise or consent to the entry of any judgment in any Indemnified Claim unless such settlement, compromise or consent: (i) includes an unconditional release of Embarcadero from all liability arising out of such Indemnified Claim; and (ii) is solely monetary in nature, is paid in full by Seller, and does not (A) include remedial measures, a statement as to, or an admission of fault or culpability of Embarcadero or (B) otherwise adversely affect Embarcadero.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT IN CONNECTION WITH THE INDEMNIFICATION OBLIGATIONS DESCRIBED IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF ITS PERFORMANCE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR BUSINESS INTERRUPTION, BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, USE OF THE STORE, OR THE EMBARCADERO SOFTWARE EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMBARCADERO’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SELLER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST CLAIM.

TERM AND TERMINATION

(a) Term. The initial term of this Agreement shall extend until the one (1) year anniversary of the original enrollment date of Seller’s seller account (such original enrollment date, the "Effective Date"). Thereafter, subject to Seller’s payment of annual renewal fees and compliance with the terms of this Agreement, the term will automatically renew for successive one (1) year terms, unless sooner terminated in accordance with this Agreement. The “Term” of this Agreement shall mean such initial one (1) year term, together with all such renewal terms.

(b) Termination for Convenience. Either party may terminate this Agreement by thirty (30) days written notice to the other party for any reason or no reason.

(c) Termination for Breach. Either party may terminate this Agreement by written notice to the other party if the other party fails to perform or observe any of its material obligations under this Agreement and such failure is not cured within ten (10) days after written notice thereof from the terminating party. Notwithstanding the foregoing, Embarcadero may terminate the Agreement immediately without notice in the event of a breach of the Acceptable Conduct Policy.

(d) Bankruptcy. Either party may terminate this Agreement immediately by written notice to the other party if there occurs any assignment of the other party's assets for the benefit of creditors, any dissolution of the other party, any voluntary act of bankruptcy by the other party, or any involuntary filing under any bankruptcy law against the other party which is not dismissed within thirty (30) days of filing.

(e) Effect. Upon expiration or termination of this Agreement for any reason:

  • (i) all Reseller licenses and other rights granted to Embarcadero under Sections 2(a) and 2(b) of this Agreement will become null and void and all licenses and other rights granted to Seller under this Agreement will become null and void, except for: the End User licenses for any Seller Product previously distributed by Embarcadero or its Resellers and the limited license to Embarcadero to use or distribute the Seller Product(s) for the sole purpose of fulfilling any pre-existing contractual obligations;
  • (ii) all responsibilities for End User issues including but not limited to support and maintenance will be the responsibility of Seller;
  • (iii) Embarcadero may, in its sole discretion, terminate the SDK license to Seller referenced in Section 3 of this Agreement;
  • (iv) except as expressly provided herein, neither party will have any right to receive any compensation, reimbursement or other amounts from the other party solely as a result of such termination, and neither party will have any right whatsoever in or to the other party's software or any copyrighted materials, patents, trade secrets, or other proprietary rights relating to the other party's software, other than as provided for in this section, provided that, notwithstanding the foregoing, Embarcadero may withhold the final Fee payment to Seller for up to six months following termination date to cover any future claims for refunds or charge backs; and
  • (v) either party may pursue its remedies under this Agreement, whether at law or in equity, including without limitation suing for damages and injunctive relief, and all other remedies available under copyright, patent, trademark, trade secret, and other applicable laws and administrative regulations.

GENERAL

(a) Complete Agreement; Modifications. This Agreement and the accompanying schedules, exhibits and attachment(s) are the complete agreement between Seller and Embarcadero regarding the Store and the resale of the Seller Product(s) via the Store and supersede any prior agreements regarding the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Seller in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement will be of no force or effect.

(b) Survival. All provisions of this Agreement, except for Sections 2(a), 2(b), 3 and 5(a), will survive expiration or termination of this Agreement for any reason.

(c) Assignment and Binding Effect. Seller may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party hereto. Any attempted assignment or transfer in violation of this paragraph shall be void ab initio. Embarcadero may freely assign or transfer this Agreement or any of its rights or obligations hereunder.

(d) Notices. Embarcadero Technologies, Inc. (Embarcadero) reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Store or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Store. All notice of changes to this Agreement will be posted on the Store for thirty (30) days. Seller is responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice. Any notice required to be sent to a party under this Agreement will be in writing, effective on receipt by that party, and will be sent by email to the principal account owner on record at that time to the attention of such party's general counsel or legal representative. Either party may change its notice address via the Seller Store account information.

(e) Waiver and Severability. The waiver of one breach or default under this Agreement will not constitute the waiver of any subsequent breach or default. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.

(f) Independent Contractors. The parties will at all times be independent contractors and will represent themselves to all third parties as such. Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint venturers.

(g) Excusable Delays. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency and shortage of materials.

(h) Mediation.

  • (i) The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Within five (5) business days after receipt of notice of request for mediation, the receiving party shall submit to the other a written response. The notice and the response shall include (1) a statement of each party's position and a summary of arguments supporting that position, and (2) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within five (5) business days after delivery of the disputing party's notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored.
  • (ii) If the matter has not been resolved within five (5) business days of the disputing party's notice, or if the executives fail to meet within five (5) business days, either party may initiate arbitration of the dispute.
  • (iii) All negotiations will be confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and the rules of evidence of any state or other jurisdiction.
  • (iv) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, except as they relate to controlling conflict of laws issues. Embarcadero and Seller consent to personal jurisdiction and venue to the courts located in San Francisco, California in the Northern District of California. The 1980 UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

(j) Arbitration

  • (i) Any controversy or claim arising from or relating to the terms and conditions set forth in this Agreement, or of a claim based on either party's alleged breach of this Agreement which the party's are unable to resolve through mediation above, shall be submitted to arbitration before the American Arbitration Association or its successor, in either Santa Clara or San Francisco County, State of California; provided, however, that the party wishing to submit the matter to arbitration must give the other party at least seven (7) working days' written notice of its intent to so submit the matter; and provided further that the arbitrator(s) selected shall be knowledgeable in the computer software field. The rules and regulations to be followed shall be those of the American Arbitration Association, or its successor, in effect on the date of delivery of the demand for arbitration.
  • (ii) Arbitration of the issues as set forth in this Section, including the determination of the amount of damages suffered by either party thereto by reason of the acts or omissions of the other, shall be to the exclusion of any court of law. The decision of the arbitrators, or a majority of them, shall be final and binding on both parties and their respective successors and permitted assigns, and such decision may be enforced by any court having jurisdiction over the party against whom the award is rendered. Each party shall pay the fees of its own attorneys and the expenses of its witnesses. All other costs and expenses of the arbitration, including the cost of recording the transcripts thereof, if any, administration fees and all other fees and costs, shall be paid by the non-prevailing party. In the event the arbitrators make no assessment of such other fees, costs and expenses, such fees, costs and expenses shall be borne equally by the parties.

(k) U.S. Export Compliance

SELLER AGREES THAT IT IS ITS RESPONSIBILITY TO OBTAIN AND PROVIDE AN EXPORT COMPLIANCE CLASSIFICATION NUMBER FOR EACH PRODUCT. Seller hereby certifies that Seller is not a national of, a governmental entity of, located in, or otherwise acting directly or indirectly on behalf of, Cuba, Burma (also known as Myanmar), Iran, North Korea, Sudan, or Syria, or any other country subject to a country-based sanctions program administered by the Office of Foreign Assets Control within the U.S. Department of the Treasury (“OFAC”), and that Seller Product was not developed, in whole or in part, in any such country, or derived, in whole or in part, from source or object code software originating in any such country. Furthermore, Seller hereby certifies that Seller is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, or owned or controlled by any such person or entity; or (ii) a person or entity named on any other restricted party list maintained by the U.S. Government, including, but not limited to, the Denied Persons List and Proliferation Entity List, both of which are maintained by the Bureau of Industry and Security within the U.S. Department of Commerce (“BIS”). Finally, Seller hereby certifies that Seller Product is authorized for export from the United States in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. § 730 et seq. (“EAR”). In particular, but without limiting the generality of this Section, Seller certifies that (i) Seller Product does not contain, use, or support any data encryption or other cryptographic functionality; or (ii) in the event that Seller Product does contain, use, or support any data encryption or other cryptographic functionality, Seller has qualified Seller Product, as necessary, for export as a “mass market” encryption item in accordance with § 742.15(b)(2) of the EAR, and Seller will provide Embarcadero with a copy in .pdf format of the “mass market” export classification determination (“CCATS”) issued to Seller by BIS.

EXHIBIT A

Acceptable Conduct Policy

During the Term of the Agreement, and in connection with the Store Seller shall:

  • only offer products or services that do not violate any law, statute, ordinance or regulation, including laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, pornography, obscenity, spam, privacy, private or public data transfer and telecommunications;
  • not offer, advertise, or promote products and services that infringe, dilute, misappropriate, or otherwise violate any intellectual property rights or rights of publicity, including failing to obtain all required permissions to receive, upload, download, display, distribute or execute programs or perform other works or derivative works protected by intellectual property laws or removal or alteration of applicable copyright, trademark or patent notices;
  • ensure that any products and services offered, advertised, or promoted by Seller are free of any malicious content including viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, packet bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (but excluding means to legally prevent unauthorized use of the products and services);
  • not (a) intentionally omit, delete, forge or misrepresent information related to the Seller’s products and services or business (including usage terms and restrictions in connection with time-based or time-restricted offerings, such as subscriptions), (b) engage in any fraudulent activities or scams such as “pyramid schemes,” “ponzi schemes,” or “chain letters,” or (c) offer products or services that are, or contain material that is, inappropriate, defamatory, libelous, obscene, indecent, or that enables online gambling (as reasonably determined by Embarcadero);
  • inform Embarcadero of any changes to the Seller Product(s) (including additions of new or modification of existing Seller Product(s)) prior to offering such Seller Product(s);
  • refrain from soliciting customers and potential customers who have declared that they do not to wish, or have not agreed, to receive such communication, whether the recipient list is obtained by Seller or another party;
  • conduct its business in an ethical manner and prevent harm to and harassment of third parties;
  • not violate or attempt to violate the security of the Store’s systems, including the software application, or share password and account access with unauthorized third parties; and not redirect potential End User customers away from the Store.

See Also

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