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Paid Freemium (in app) Adfunded

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What you need to know:

Your shares:
70/30 in your favour for Appitalism and any D2C site powered by Appitalism
60/40 in your favour for all carrier channels (of the net which is the End User Price minus carrier share)

Reporting:
Reporting period is quarterly. We will send you report and you will invoice us the amount and we will pay you!

Terms and Conditions

This Agreement shall take effect from the acceptance date of this agreement and shall continue in force until terminated via written note by either of the parties (at least 30 days’ notice):
The Licensor hereby grants to the Distributor the right during the Term:
(a) to distribute copies of Licensed Content Elements to End-Users in the Territory for their personal use via the Authorised Sites;
(b) to store on its servers and create transitory copies of the Licensed Content as the Distributor may require to support the exploitation of the licence granted in sub-clause (a) above;
(c) to play and perform the Licensed Content Elements (and permit End-Users to do the same);
(d) to make available on the Authorised Sites, a portion of any Licensed Content Element for “previewing” by the public;
(e) to modify the Licensed Content solely as required for delivery to a Mobile Device (for example, the format and/or size); and to modify the Licensed Content in order to watermark a piece of Image Content or Video Content to designate it as a “preview” or similar in respect of Music Content and App content;
(f) if an Authorised Site is not administered by the Distributor, to the extent required the Distributor may sub-license the licence in sub-clause (a), (c) and (d) in respect of transient copying PROVIDED THAT the Licensed Content remains generally stored on its servers in accordance with sub-clause (b).
(g) In the event that permission has been granted for external hosting in the Commercial Terms for a particular Authorised Site, the Distributor may sub- license the licence in sub-clause (b) and the proviso contained in sub-clause (e) shall not apply. However the Distributor shall ensure that any permitted sub- licensee complies strictly with the terms of Clause 8 and shall be responsible to the Licensor for all defaults of such sub- licensee.
(2) The rights granted in sub-clause (1) shall be:
(a) assignable only in accordance with the terms of this Agreement;
(b) non-exclusive in respect of each Licensed Content Element,
(c) personal to the Distributor and not sub- licensable
(d) subject to the restrictions contained in Clause 8
(e) in respect of any particular Licensed Content Element, subject to any restriction in Territory and/or any additional licensing provisions as the Licensor may inform the Distributor.
4. SUB-DISTRIBUTION
(1) The Licensor hereby grants to the Distributor the right:
(a) to distribute the Licensed Content via its own D2C sites (see glossary definition);and
(b) to distribute the Licensed Content via operators of mobile networks; and
(c) to distribute the Licensed Content via third-parties and to permit those third-parties themselves to distribute via operators of mobile networks.
(d) to wrap the content with our advertising solution for adFunded distribution channels (see glossary definition)
(2) In the furtherance of the rights granted in sub-clause (1) above the Licensor hereby grants to the Distributor the right to grant sub-licences of the Licence on terms no wider than those of this Agreement and subject to the restrictions contained in Clause 10.
6. RESERVATION OF RIGHTS AND MARKETING
(1) Any rights not expressly granted in the Licences are expressly reserved to the Licensor.
(2) The Distributor may use the Licensed Content, or the name, likeness and/or voice of any Artist, Game IP or the cover-art (as applicable), any screen-shot, excerpt or similar for marketing and promotional purposes, unless not allowed by the Licensor, notified with a written note in electronic/mail form or/at ingestion time.
7. DELIVERY OF THE LICENSED CONTENT
The Licensor shall make the Licensed Content available to the Distributor:
(a )via an online download site, the details and access credentials for which will be provided by the Licensor. These Credentials are personal to the Distributor and the Distributor must keep a written record of all persons to whom the credentials have been supplied. This record must be promptly produced to the Licensor on request. The Licensor may assume that all use of the credentials is use by the Distributor unless the Distributor has notified the Licensor that the credentials have been compromised; and
(b) in the formats requested in writing by the Distributor, provided that the Licensor supports such formats.
8. CHANGES TO THE LICENSED CONTENT
(1) The Licensor may include further items as Licensed Content hereunder by including such items in the online download site above and informing the Distributor that it has done so.
(2) Subject to the remainder of this Clause, the Licensor may, at any time on at least 30 days’ notice in writing, withdraw the Licence over one or more Licensed Content Elements.
9. RESTRICTIONS ON USE OF THE LICENSED CONTENT
(1) The Distributor shall not remove, deface or obscure any copyright notice included by the Licensor in the Licensed Content.
(2) The Distributor shall keep the Licensed Content securely on its systems so as to prevent, so far as technically and commercially feasible, the unauthorised access thereto.
(3) The Distributor shall provide a copyright method, if requested by the Licensor, ensuring that ensure that each Licensed Content Item delivered to an End- User is:
(a) encapsulated with DRM technology in accordance with good industry practice and in any event employing so-called ‘forward-lock’;
(b) only delivered if the End-Users’ Mobile Device identifies itself to the Distributor as a Mobile Device capable at least of honouring ‘forward-lock’ protected content.
(4) If bundling is not expressly permitted in the Key Commercial terms, the Distributor may not bundle any Licensed Content Element with any other content (including, without limitation, any other Licensed Content Element) without the prior written consent of the Licensor.
(5) the Distributor may not offer any Licensed Content Element below the Minimum Price Point (if any is given) without the prior written consent of the Licensor as to an alternative fee structure.
(6) The Distributor may not use any trade mark of the Licensor or its licensor, nor any Licensed Content (or part thereof), nor any Artist (or the likeness, name, voice of an Artist) in such a manner that implies an endorsement of any goods or services by the Licensor, any of its licensor and/or any Artist.
(8) The above restrictions shall apply equally to any permitted sub-licensee pursuant to Clause 3(1)(g).
10. REPORTING
(1) Within 45 days of the end of each Reporting Period, the Distributor shall compile and send or make available online to the Licensor a report showing the sales of the Licensed Content per Channel in the relevant reporting Period and the corresponding calculation of Fees. If the Distributor relies on receiving reports from third parties, and any such report is not available at the time the relevant Report is required to be delivered it will be included in the next reporting period. In the Report following the delivery of the necessary third party report the Distributor shall make the necessary reconciliations and clearly indicate the same. The format and content of the Report shall be as reasonably specified by the Licensor.
(2) The format and content of the Report shall be as reasonably specified by the Licensor.
11. INSPECTION RIGHTS
(1) The Licensor shall have the right:
(a) to appoint an independent third party from an internationally recognised firm of auditors, to examine the Distributor’s records to determine the compliance by the Licensor of its obligations in Clause 9 and thus the accuracy of the Fees calculation; and/or
(b) to inspect the technical facilities of the Distributor (and any permitted sub- licensee) insofar as they relate to the Licensed Content.
(2) The Licensor shall provide the Distributor with at least 30 days prior written notice of the inspection and the inspection shall be conducted during normal office hours.
(3) In the exercise of its rights under sub-clause (1)(a), the Licensor may only exercise its right a maximum of one time in any rolling twelve month period and may not examine the records of the Licensor more than once for any period of time. In exercising its right, the Licensor must notify the Distributor for which period of time it is wishing to have the Distributor’s books examined.
(4) The Distributor shall be entitled to require the inspector to execute a non-disclosure agreement that prevents disclosure of any Confidential Information to any third party (including, without limitation, the Licensor). The Licensor shall be entitled to a disclosure by the inspector only of whether the Distributor has or has not complied with its obligations and, if not, what balancing payment is due (if relevant) and a brief description of the discerned reasons for non-compliance and the Licensed Content effected.
(5) If an inspection under sub-clause (1)(a) discloses an under or over payment by the Distributor the relevant Party will make a balancing payment within 30 days of receipt of an invoice from the other Party. If the balancing payment is greater than £1,000 (or foreign currency equivalent at the time of the audit report), interest, as calculated in accordance with Clause 12(3), shall also be due and payable on such sum.
(6) If an inspection under sub-clause (1)(b) discloses a failure in compliance, the same shall be considered a material breach of this Agreement and the Distributor shall remedy the defect promptly and in any event within the cure period set out in Clause 18(1)(a)(ii).
(7) The costs of such inspection shall be borne by the Licensor unless any disclosed balancing payment (in relation to an inspection under sub-clause (1)(a)) is in favour of the Licensor and is greater than 7.5% of the Fees payable to the Licensor over the audited period in which case, the Distributor shall promptly reimburse the Licensor for the reasonable costs of such inspection. In relation to an inspection under sub-clause (1)(b) the Distributor shall reimburse the Licensor for the reasonable costs of any follow-up inspection required by the Licensor to verify the remedy of any non-compliance disclosed in the prior audit.
12. FEES
(1) The Fees for each Reporting Period shall be calculated by reference to the data provided in the Report for that Reporting Period.
(2) All Fees and sums set out in this Agreement are expressed as exclusive of VAT which, if chargeable, shall be added to the invoice referred to in Clause 12.
(3) Fees shall be paid to the Licensor in the Remittance Currency.
(4) Minimum Payable Amount: if the total sum of payment is lower than 100 British pound or equivalent in local currency the distributor will not proceed paying the Licensor but will add the amount to the following quarterly payment cycle until it surpasses the minimum amount
(5) All the costs for international transfers to be paid by the licensor
13. INVOICING, PAYMENT AND TAXES
(1) The Licensor may invoice the Distributor for the Fees due for each Reporting Period once it is in receipt of the Report for that Reporting Period. The Reporting Period is quarterly with periods ending on 31/3, 30/6, 30/9, 31/12.
(2) The Distributor will pay each duly and validly presented invoice 30 days from the receipt of the invoice.
(3) In the event that the Distributor is required by law to withhold certain sums from the payments due to the Licensor, the Distributor shall make such withholding and pay the same to the appropriate tax authority and remit the remainder to the Licensor in accordance with the provisions of sub-clause (2). The Distributor shall promptly furnish such certificates and other evidence of the withholding to the Licensor.
13 REVENUE SHARES
(1) The revenues share are 60% to the licensor and 40% to the distributor of the net revenues received from sales of & advertising revenue generated within the content on Direct to Consumer, Mobile Network Operator & Third Party services
14. INTELLECTUAL PROPERTY TITLE
(1) Nothing in this Agreement shall serve to transfer title or ownership in any Intellectual Property Rights owned by one Party to the other Party.
(2) The Distributor acknowledges that the Licensed Content is owned by or licensed to the Licensor
15. WARRANTIES AND REPRESENTATIONS
(1) Each Party represents and undertakes to the other that:
(a) It has the requisite corporate authority to enter into this Agreement and perform its obligations hereunder;
(b) The entry into this Agreement does not put it in breach of any contractual or other duty owed to any third party.
(2) The Licensor warrants and represents to the
Distributor that:
(a) it owns the Intellectual Property Rights in the Licensed Content or, to the extent that it does not so own such rights, it has a sufficiently wide licence over such rights so as to be able to grant the Licences to the Distributor.
(b) neither the possession nor use of the Licensed Content by the Distributor or any of its permitted sub-licensors in accordance with the terms of this Agreement shall infringe the Intellectual Property Rights of any third party.
(c) the Application Content does not include, so far as the Licensor is aware, any virus, work, backdoor, trapdoor, time-bomb, logic-bomb, Trojan or other extraneous code designed to impair, hinder or prevent the performance of the Game Content and/or the relevant Mobile Device. Some Games, may, however, be designed by their publishers to be level-limited or similar.
16. EXCLUSIONS AND LIMITATIONS ON LIABILITY
(1) Neither party excludes or limits its liability to the other for:
(a) fraudulent misrepresentation;
(b) death or personal injury caused by the negligence;
of, in either case, that Party or the employees, agents or sub-contractors of that Party; nor
(c) any liability that cannot, by application of law or public policy, be excluded or limited.
(2) Subject to sub-clause (1) above, neither Party shall be liable under contract, tort or any other head of law, to the other Party for any indirect loss, consequential loss, loss of profits (whether direct or indirect), loss of earnings, loss of anticipated savings or loss of data.
(3) The liability of each Party arising under
(a) its indemnity obligations in Clause 16;
and
(b) in respect of a breach of Clause 20
is unlimited but the provisions of sub-clause
(2) shall nonetheless apply.
(4) Subject to sub-clauses (1) to (3) (inclusive): (a) other than in respect of the payment of the Fees by the Distributor to the Licensor, the aggregate liability of the Distributor to the Licensor under or in connection with this Agreement, and pursuant to any head of law, shall not the greater of (i) £25,000 and (ii) the aggregate of the Fees paid and payable over the 12 month period immediately preceding the breach from which such liability arose.
(b) the Licensor’s aggregate liability to the Distributor under or in connection with this Agreement, and pursuant to any head of law, shall not exceed the greater of (i) £25,000 and (ii) the aggregate of the Fees paid and payable over the 12 month period immediately preceding the breach from which such liability arose.
17. MUTUAL INDEMNITY
Subject to Clause 17 each Party shall indemnify and hold the other harmless against all loss, costs, damages, expenses and liabilities that arise out of a claim or threatened claim (a “Claim”) by a third party that, were such Claim proven, would constitute proof of a breach by that Party of one or more of their warranties and representations given in Clause 14.
18. INDEMNITY PROCESS
(1) If any Claim is initiated against a Party (the “Indemnified Party”), the Indemnified Party shall give prompt written notice of such Claim to the other Party (the “Indemnifying Party”), PROVIDED HOWEVER, that failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability under this Agreement unless, and only to the extent that, such failure results in prejudice to or forfeiture of, substantive rights or defences of the Indemnifying Party.
(2) The Indemnifying Party, at its own expense, shall have the option to assume (either itself or via its nominee) sole control of the defence of such Claim and the Indemnified Party shall allow the Indemnifying Party to conduct the defence of such Claim. If the Indemnifying Party assumes sole control of the defence of such Claim:
(a) the Indemnifying Party shall keep the Indemnified Party informed of all material developments and events relating to such Claim;
(b) the Indemnified Party shall have the right to participate, at its own expense, in the defence of such Claim (but such participation shall not be deemed to give the Indemnified Party the right to control such defence);
(c) the Indemnified Party shall co-operate as reasonably requested by the Indemnifying Party in the defence of such Claim; and
(d) the Indemnifying Party shall not settle such Claim:
(i) In the name of the Indemnified Party;
and
(ii) So as to commit the Indemnified Party to take any positive action (other than to complete any forms necessary to agree the dismissal of the Claim) or to desist from taking any action;
without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
(3) In the event the Indemnifying Party fails to assume the defence of such Claim, or fails diligently to defend such Claim, the Indemnified Party may assume the defence of such Claim and without prejudice to the Indemnifying Party’s obligations to indemnify and hold the Indemnified Party harmless pursuant to Clause 17 above, the Indemnifying Party shall reimburse the Indemnified Party for all expenses as such expenses are incurred relating to the defence of such Claim.
19. TERMINATION
(1) Either Party may terminate this Agreement immediately on notice in writing to the other Party if:
(a) the other Party materially breaches this
Agreement and either:
(i) such breach is incapable of remedy; or
(ii) such breach remains unremedied after
30 days of receipt of notice from the non-breaching Party identifying the breach and requiring its remedy.
(b) the other party is unable to pay its debts as they fall due, is wound-up or has a liquidator, administrator, receiver or manager appointed over some or all of its assets or suffers any similar insolvency-related event in any jurisdiction
(c) the other party ceases to carry on business.
(2) If no Termination Date is provided in Clause 1, either Party may terminate this Agreement on giving the amount of notice in writing to the other Party as is defined in
Notice Period, such notice not to expire before the end of the Initial Period, if any is provided for in Clause 1.
20. EFFECT OF TERMINATION
(1) On termination, howsoever caused, the
Distributor shall:
(a) cease distributing the Licensed Content
(b) desist from further distribution of
Licensed Content;
(c) promptly delete the Licensed Content from its systems;
(2) Termination, howsoever caused, shall not affect the accrued rights and remedies of either Party.
(3) On termination, howsoever caused, the following clauses shall survive termination: Clauses 1, 9 (for the last Reporting Period),
10 (for a period of one year), 11, 12, 14, 15, 16, 17, 19, 20, 21-24.
21. CONFIDENTIAL INFORMATION
(1) All Confidential Information given by either Party to the other or otherwise obtained shall be treated by the other Party, its employees and subcontractors as confidential and shall not be used other than for the benefit of the disclosing Party or the furtherance of each Party’s obligations under this Agreement. The foregoing applies notwithstanding that such Confidential Information may have been disclosed prior to this Agreement.
(2) Each Party undertakes not to disclose, without the prior consent in writing of the other, Confidential Information belonging to or disclosed by the other in whole or in part to any other person save those of its employees, agents and contractors who are engaged in performing the provision or receipt of that Party’s obligations hereunder and have a reasonable need to know such information and to its board members, professional advisers and auditors who have a reasonable need to know such information in order to advise the Company or otherwise carry out their duties. Each Party undertakes to use the Confidential Information belonging to or disclosed by the other solely in connection with their performance of this Agreement and not for its own benefit or the benefit of any third party.
(3) Each Party undertakes
(a) to protect the Confidential Information of the other to at least the same manner as it protects its own; and
(b) not to co-mingle the Confidential Information of the other.
(4) The provisions of the preceding clause shall not apply to any information which:
(a) is trivial or obvious (for the avoidance of doubt an element that is trivial or obvious in and of itself should not necessarily be taken as trivial or obvious in the context of the whole of the Confidential Information);
(b) becomes public knowledge other than by breach of this clause;
(c) is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;
(d) is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure;
(e) is independently developed without use of the other Party’s Confidential Information; or
(5) It shall not be a breach of this Clause if the receiving Party is obliged to disclose the Confidential Information of the disclosing
Party by order of a court of competent jurisdiction, pursuant to a regulatory demand or the rules of an internationally recognised stock-exchange provided that, so far as practical, the receiving Party gives prior written notice of such disclosure and provides reasonable assistance to the disclosing Party in trying to prevent or contain such disclosure.
(6) At the request of a disclosing Party, the receiving Party shall promptly (and in any event within 30 days) return to the disclosing Party or destroy all Confidential Information of the disclosing Party and shall certify by a signature of a Director (as the term is understood in law) that is has complied with this sub-clause. In respect of confidential information stored electronically, it shall be sufficient that a party uses its reasonable endeavours to expunge such data from its systems. This shall not include the expunging of such data from a party’s enterprise level backups or archives unless and until such backups and/or archives are restored to a live environment.
22. SEVERABILITY
If any part of this Agreement becomes or is illegal or unenforceable that part of this Agreement shall be deemed excised and the Parties shall act in good faith to replace the relevant part of this Agreement with an alternative that is not illegal or unenforceable and that maintains the intended business relationship between the Parties.
23. MISCELLANEOUS
(1) This Agreement represents the entire relationship between the Parties and supersedes all previous written or other correspondence and agreements as to the subject matter of this Agreement.
(2) In entering into this Agreement, the Parties acknowledge and agree that they have not relied on any warranty or representation of the other Party save as to those that are expressed herein, and all such warranties and representations are expressly disclaimed by each Party including, without limitation, any warranty relating to fitness for any particular purposes and merchantable quality.
(3) The Parties are entering into this Agreement as principals and nothing in this Agreement shall serve to create any agency or partnership between the Parties.
(4) No amendment to this Agreement shall be valid unless made in writing and signed by authorised representatives of both Parties.
(5) No rights under the Contracts (Rights of Third Parties) Act 1999 shall accrue to any third party in relation to this Agreement save that any Affiliate of the Distributor may enforce this Agreement directly against the Licensor.
(6) If either Party needs to send notices to the other Party they shall do so by first-class (or international equivalent) pre-paid post to the address given for that Party at the start of this Agreement or such other address as a Party may notify the other Party in accordance with this Clause.
(7) Any notice will be deemed to be delivered
48 hours after posting it unless posted internationally, in which case delivery shall be deemed to take place 72 hours after postage.
(8) Where there is an obligation to “inform” (as opposed to notify), providing such information by way of electronic mail shall be sufficient.
24. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and shall be construed in accordance with the laws of England & Wales (without regard to its provisions on conflict of law) and the Parties submit unconditionally to the exclusive jurisdiction of the courts of England for all purposes related to this Agreement save that enforcement of any judgment handed down by an English Court may take place in any jurisdiction in which the losing Party has assets.

SCHEDULE ONE

- GLOSSARY
Affiliate means, in respect of a party, any company that is controlled by that party, controls that party or is under common control with that party. “control” for the purposes of this definition means the direct or indirect right to control the votes of the board of directors (or other relevant management body) and/or the votes in the company itself
Application means an executable programme designed to be used on a Mobile Device
Application Content means the Applications that the Licensor agrees to license to the Distributor under this Agreement
Billing Report means a report issued by the Distributor in accordance with Clause 9
Direct to Consumer Stores means stores where Mobile Streams is the sole proprietors such as Appitalism and all Appitalism powered stores including: appsebooks, the buck, mobilegaming.
Carrier Store means where Mobile Streams is either a Master Content Provider or utilize a third party to distribute to particular carrier store. Third parties and/or carrier will retain a share (varies on each channel) of the EUP
Appitalism white labelled store means a store that is bearing the Appitalism logo and look and feel but is distributing via a carrier. In this case the carrier will retain a share of the EUP
Distribution Channel means any storefront where Mobile Streams will sell content this includes: Direct to Consumers, Carrier stores and Appitalism white labelled stores.
AdFunded Distribution Channels: these channels, owned and operated by Mobile Streams or by a third party partner distribute content for free relying on advertising methods such as banners or wrappers to generate revenues. The downloads will count as either a normal paid download or in some cases for 3rd parties we will pay a percentage of the revenues received for the developer titles or a pro rated basis of total margin on service / total downloads unless negotiated prior with the developer.
Advertising Wrapper: Piece of the technology that envelop the content without alteration of the content or its source code with the aim to deliver advertising in various forms such as pre roll ads, banners etc.
Confidential Information means, without limitation, all information, software, data, manuals, concepts relating to marketing methods, products, developments, business and financial affairs and trade secrets (whether or not designated as “confidential information” by either Party and whether written, oral or in electronic form) and any other information clearly designated by the disclosing Party as confidential information or that is evidently confidential by its nature or the nature of its disclosure
End-User means an individual making use of a Mobile Device to access the Licensed Content where such Mobile Device has a home network in the Territory
Gross Income Margin means the money actually collected by Distributor (excluding VAT and chargebacks if any) from an End User for the purchase of the Content Credits actually redeemed by the End User to purchase licenses for Licensed Content Elements hereunder
Intellectual Property Rights means all patents, copyrights, database rights, design rights, registered designs, trademarks, trade names, know-how, rights in confidential information any other proprietary and/or intellectual property and/or similar rights; in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
Licences means those licences that are granted in Clause 4
Licensed Content means the Music Content, the Image Content, the Video Content, the Mobile Themes Content and the Applications Content
Licensed Content Element means a single item of Licensed Content and/or any derivative work thereof
MetaData means the ancillary information about each Licensed Content Element that the
Net Revenue means the revenue actually received by the Distributor in respect of the exploitation of the Licences in a Reporting Period less any VAT;
Retail Price means the price paid by an End-User for a Licensed Content Element (exclusive of VAT)
VAT means value added tax and any similar value added or sales tax that may be applicable

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