This Tyootr Marketplace Partner Agreement (this “Agreement”) is a binding agreement between Tyootr Inc (“Tyootr”, “we” or “us”) and the individual or entity registering as a vendor or partner in the Tyootr Marketplace (“Marketplace Partner” or “you”). If you are an individual using the Tyootr Marketplace on behalf of your company, organization or other entity (for example, as an employee), then “you” means your entity and you are binding your entity to this Agreement.
Under this Agreement, you appoint and authorize Tyootr, as your commercial agent, to promote, sell, test and distribute Marketplace resources (as defined below) on the terms and conditions of this Agreement, and Tyootr accepts such appointment. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. The Tyootr Marketplace is not intended for and may not be used by anyone under the age of 16.
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the Tyootr Marketplace or (ii) by submitting any Marketplace Resource to the Tyootr Marketplace.
Tyootr may modify this Agreement from time to time, subject to the terms in Section 18 (Agreement Changes) below.
The Tyootr Marketplace is a forum for connecting partners who provide services and content for Tyootr products with potential end users. Resources can be created using the Tyootr Platform and can be delivered for use with Tyootr’s downloaded software or cloud products. As a partner, you may charge a fee for your resource and designate whether end users may order your resource through Tyootr’s ordering and license management system (in which case revenue sharing will apply) or directly from you (in which case there will be no revenue sharing with Tyootr - applicable only for accreditation bodies). You may also offer your resources free of charge under certain circumstances.
2.1. “Tyootr Marketplace” or “Marketplace” means http://marketplace.tyootr.com or any other webpage, application, interface, service or in-product experience at which Tyootr makes available or lists resources and any other location that allows for the discovery, download or purchase or resources (such as Tyootr’s Universal Plugin Manager).
2.2 “Tyootr Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by Tyootr. Nothing contained herein shall grant you any ownership right in the Tyootr Marks or any other Tyootr intellectual property.
2.3. “Tyootr Platform” has the meaning given in the Tyootr Developer Terms.
2.4. “End User Data” means any data, content or information of an end user that is accessed, collected or otherwise processed by you or your resource in connection with use of the Tyootr Marketplace.
2.6. “End User Terms” means a legally adequate agreement governing end user use of your resources.
2.7. “Marketplace Resources” or “Resources” means cloud and downloadable content, teaching and other freelance services, accreditation and exam services that are designed to interoperate with Tyootr’s own software and cloud offerings (through use of the Tyootr Platform) and that you deliver to Tyootr or make available through the Marketplace. “Resources” also include any New Versions of existing resources.
2.8. “Marketplace Discount Programs” means the current Marketplace discounts listed at our Marketplace Discount Programs on the Partner Portal. Updates to Marketplace Discount Programs may be communicated to you from time to time via the Tyootr Developer Community, the Partner Portal or the Marketplace Guidelines.
2.9. “Marketplace Guidelines” means the terms, rules and policies that Tyootr makes available at Tyootr web properties describing the Marketplace, which set forth certain requirements (as may be modified by Tyootr from time to time) for including your Marketplace resource in the Tyootr Marketplace. Our marketplace brand guidelines are part of the Marketplace Guidelines.
2.10. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your resources.
2.11. “Partner Portal” means the online platform made accessible to Marketplace Partner by Tyootr on which Tyootr from time to time will communicate program details and changes, and provide sales tools and services, to Marketplace Partner. The URL of the portal is: https://partners.tyootr.com (as amended from time to time by Tyootr). You can access the Partner Portal by activating your applicant status under ‘Validate your status’ on the Partner Portal landing page.
2.12. “Revenue Share” means the revenue based on the Marketplace Partner’s Sale as displayed at the applicable Revenue Share page on the Partner Portal at the time of the Sale in accordance with Section 4.2 (Revenue Share) below.
2.13. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your resource or (c) issue involving your resource that materially degrades Tyootr systems or networks.
2.14. “Similar Service” means, in relation to Paid-via-Tyootr resources, any online distribution service or channel (other than the Tyootr Marketplace) that makes such resources available for sale, use or download to end users and/or channel partners, including any website or other distribution method operated by you.
3. Using the Marketplace to Publish Your resource
3.1. Types of resources. Currently, the Tyootr Marketplace allows you to offer the following types of listings for Marketplace resources. You designate your listing type using your vendor account on the Tyootr Marketplace (subject to approval by Tyootr), based on the options below:
E-learning courses are self paced video courses which allows learners/ students to access the content at their own pace. The courses are structured and have a definite learning outcome. E-learning courses are hosted in the cloud and contain multiple learning tools such as text, PDF’s, exams, codes etc., within the course.
Tyootr marketplace allows educators to publish e-books to learners/ students. The content is hosted in the cloud which is EPUB protected and is available as view only. The books are encrypted and end users cannot download.
Exams are a collection of questions (multiple choice and assignment based) which are either proctored by a virtual invigilator or unproctored exams. Exams can be distinguished as practice exams and certification exams.
Professional trainers can list their profile in Tyootr Marketplace using their Gigs by Tyootr account to connect and apply for instructor led training opportunities posted by Tyootr subscribers.
Freelancers can list their profile in Tyootr Marketplace using their Gigs by Tyootr account to connect and apply for online education business related services posted by Tyootr subscribers.
Professional certification and accreditation bodies can list their certification courses and accreditation services in Tyootr Marketplace. The marketplace connects accreditation bodies to potential companies/ subscribers using tyootr products to subscribe for their services.
Free resources are any of the above list of resources which are offered for free and do not include any costs to access.
Resources for which end users pay all fees to Tyootr (with Marketplace Partner receiving a Revenue Share as described in this Agreement, and Tyootr receiving the Revenue Share from end users as Marketplace Partner’s commercial agent.) Paid- via-Tyootr Resources may be either delivered within tyootr platform or services delivered external. You must use Tyootr’s licensing mechanisms for all Paid-via-Tyootr resources. For Paid-via-Tyootr resources that are external resources, end users will receive license keys from Tyootr or the respective vendor.
Resources for which end users pay all fees to Marketplace Partner (not Tyootr). Paid-via-Vendor Resources is only available for accreditation bodies. Paid-via-Vendor Resources is generally limited to accreditation fee, trainer accreditation if any or any other service related payment initiated by the accreditation body. Tyootr is not responsible for any such transactions which are conducted outside the platform.
This Section 4 (Financial Terms) shall only apply to Paid-via-Tyootr Resources.
(a) Generally. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Paid-via-Tyootr resources (the “List Prices”). Tyootr will determine the pricing for renewals, upgrades that add more licenses/end users, New Versions and other support and maintenance (“Follow-on Sales”), all in accordance with its standard formulas and policies. “Sale” includes any initial or renewal sale, subscription or license of a Paid-via-Tyootr resources (or related content or services) through the Tyootr Marketplace, including any Follow-on Sales.
(b) Marketplace Discount Programs. Notwithstanding Section 4.1(a), if you are participating in our Marketplace Discount Programs, eligible end users may purchase your Paid-via-Tyootr resource at the applicable discount to the List Price as described in our Marketplace Discount Programs page. Certain Marketplace Discount Programs apply automatically and are required for all resources as described on such page. Separately, Tyootr may offer discounts from List Price for Sales through Tyootr Partners as described in Section 4.9 (Sales through Tyootr Partners and Your Channel Partners).
(c) Similar Services. Subject to Section 4.9 (Sales through Tyootr Partners and Your Channel Partners), you agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Paid-via-Tyootr resource (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Tyootr resource available for sale through any Similar Service. You will update the List Price for each Paid-via-Tyootr resource as necessary to ensure that it meets the requirements of this Section 4.1(c).
4.2. Revenue Share. Subject to this Agreement, for each Sale, except as otherwise expressly agreed by Tyootr in writing, Tyootr will pay you the applicable Revenue Share for the Sale. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Tyootr has received final payment from or on behalf of an end user. If a resource is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. The current Revenue Share pages are available in your account and may be amended from time to time by Tyootr. Any changes or updates to the Revenue Share will be effective 30 days after notice.
4.3. Currency Conversion. Unless otherwise specified in the Marketplace Guidelines, you will designate your List Price in United States Dollars (USD) and Tyootr will make all Revenue Share payments to you in USD. In certain non-United States countries, Tyootr may, in its discretion, list your resources and make Sales to end users in currencies other than USD. In this case, your USD denominated Revenue Share payment may fluctuate, and Tyootr will make the applicable currency conversions for your Revenue Share payment in accordance with documentation on the revenue share information pages and communications to you.
4.4. Payment by Tyootr. Subject to the terms of this Agreement (including the remainder of this Section 4), approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, Tyootr will pay you the Revenue Share due to you and provide you with a report that gives further information about your Sales of your Paid-via-Tyootr resources. You agree to provide Tyootr with information on a valid bank account in your name, and Tyootr will make payments to that account via Electronic Funds Transfer (“EFT”) or any other payout mechanisms listed in your account. Tyootr is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least US$500.00 (or equivalent). You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.4 are solely your responsibility.
4.5. Refunds; Withholding of Revenue Share. Tyootr may issue refunds of the applicable Sale amount (or portions thereof) to end users or Tyootr Partners in its sole discretion. If Tyootr issues a refund prior to paying you the Revenue Share for the applicable Sale, then you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded. In addition, if Tyootr pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), Tyootr may offset the amount of the Revenue Share that Tyootr previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to Tyootr. Tyootr may also withhold and offset sums you owe to Tyootr against amounts that are payable to you. When this Agreement terminates, Tyootr may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure Tyootr’s ability to offset any end user refunds or make any other offsets to which Tyootr is entitled.
4.6. Use of Certain Information. Tyootr shall only use your banking and payment information for purposes related to this Section 4 (Financial Terms). Tyootr shall not disclose your sales and related financial data to third parties except agents and contractors acting on Tyootr’s behalf and except as required by Laws. The foregoing sentence notwithstanding, Tyootr may use or disclose aggregated sales and other financial data related to the Tyootr Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
4.7. Taxes. Except as described in this Agreement (including Section 4.8 for GST Registered Marketplace Partners), Tyootr is responsible for collecting and remitting any taxes imposed on sales of Paid-via-Tyootr resources to end users. You are responsible for any income or other taxes due and payable resulting from Tyootr’s payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. Tyootr maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from Tyootr, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
4.9. Sales through Tyootr Partners and Your Channel Partners. Tyootr has a network of partners who are authorized to resell licenses or subscriptions to Tyootr products (each, an “Tyootr Partner” as described). You hereby acknowledge that, unless you opt out from allowing Tyootr Partners to resell your Paid-via- Tyootr resources, Tyootr Partners will be entitled to purchase your Paid-via-Tyootr App at a discount to the List Price for resale or provision to end users, with the amount of such discount determined at Tyootr’s sole discretion and set forth in the Partner Portal, not to exceed fifty percent (50%) of the List Price. If you make a Paid-via-Tyootr resource that is listed in the Marketplace available to a third party channel partner on a Similar Service at a discount to List Price, you may do so without violating Section 4.1 (List Price) above, as long as such discount does not exceed the discount available to the same third party channel partner in the Tyootr Marketplace. Tyootr Partners’ discounts may be communicated to you from time to time via the Partner Portal or the Marketplace Guidelines. If you opt out from allowing Tyootr Partners to resell your Paid-via-Tyootr Apps, then you may not offer such products at a discount to List Price to third party channel partners on a Similar Service.
5. Your Content; License to Tyootr; End User Licensing
5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly update from your Tyootr account with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including Tyootr’s Marketplace Guidelines (which are hereby incorporated into this Agreement). However, this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or any additional policies included or referenced in the Marketplace Guidelines. In your activities under this Agreement, you also agree to comply with the Tyootr Acceptable Use Policy (as may be modified from time to time by Tyootr) (the “AUP”).
5.4. License Grant to Tyootr. You hereby grant Tyootr, during the Term (and thereafter in accordance with Section 11 (Term and Termination)), the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:
(a) to resell, distribute or make available (including via download), as applicable, the Marketplace resources through the Tyootr Marketplace to end users (either directly or, unless you opt out, through Tyootr Partners) by all means of electronic distribution available now or in the future, except that this subsection (a) shall not apply to (i) Paid-via-Vendor resources that you choose to make available for download directly from your website instead of from Tyootr or (ii) Free resources available for purchase only from your own website;
(b) to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the Tyootr Marketplace and (ii) listings for your resource
(c) otherwise to use, store, copy and distribute your Content (i) for testing and evaluation (including scanning for Viruses, as defined in Section 12.6) conducted by Tyootr and its third party vendors; (ii) for purposes of exercising Tyootr’s rights and fulfilling Tyootr’s obligations hereunder; and (iii) for purposes of enforcing this Agreement and the Marketplace Guidelines;
5.5. License Clarifications. The licenses granted to Tyootr in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, as described in Section 11 (Term and Termination), to continue to retain and make available Apps and Product Information to existing end users after the Term, and (iii) are granted under all applicable intellectual property rights (including patent rights).
5.7. Partner Portal. During the Term, Marketplace Partner may use the Partner Portal to access Marketplace Guidelines, Tyootr Marks, marketing tools and services, and other Marketplace resources. Marketplace Partner may use such resources solely to exercise its rights and fulfill its obligations under this Agreement. To access the Partner Portal, Marketplace Partner may be required to activate or validate its status as a Marketplace Partner, as further specified on the Partner Portal landing page.
6. Delivery Commitments and Responsibilities related to End Users
6.1. Delivery Commitment. You will deliver electronically to Tyootr (and continue to make available during the Term) all versions of resources for which you have the rights required under this Agreement. You will deliver any New Versions to the Marketplace resources, together with any related Product Information, as soon as they are available. For Paid-via-Tyootr resources, you must deliver to Tyootr all of the same versions and editions of such resources (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service.
6.2. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end users for your Marketplace resource during normal business hours (except in the case of Free resource, where you must provide the support you promise to end users). You will provide to Tyootr a current email address to which Tyootr may direct inquiries from end users regarding your Marketplace resource. You are solely responsible for providing all support for your Marketplace resource, and for providing to end users of your Marketplace resource all information necessary for their use of your Marketplace resource. At a minimum you agree to respond within 24 hours to any support request that Tyootr identifies as critical, and in all other cases within five business days of request from an end user or Tyootr.
6.3. Migration of Marketplace Partner End Users into Tyootr Marketplace. You may contact Tyootr at firstname.lastname@example.org in the event you desire to migrate your existing end users into the Tyootr Marketplace to manage future license management and renewals. If authorized by Tyootr, you will be provided access to Tyootr’s migration API (“Migration API”) pursuant to which you will enter the license information and details necessary for you to utilize the Tyootr Marketplace licensing mechanism for applicable end user. In connection with your use of the Migration API, you agree to only request license keys for your existing end users that began their respective license or maintenance period more than thirty-one (31) days prior to the date such license key is requested.
7. Reservations of Rights
As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the Tyootr Platform or other Tyootr technology or materials used or included in the Content. Subject to your foregoing rights in the Content, Tyootr retains all right, title and interest in and to the Tyootr Marketplace, Tyootr Platform, all Tyootr products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8. Additional Tyootr Marketplace Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any Tyootr code or technology used in connection with the Tyootr Marketplace, including the Tyootr Platform. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of Tyootr or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to Tyootr, the Tyootr Marketplace, or Tyootr’s product or services, or (3) by Tyootr or on behalf of Tyootr. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue Tyootr or the Marketplace.
8.2. Review of Marketplace resources by You. The Tyootr Marketplace allows you to post reviews of Marketplace resources offered by other vendors. Any review by you of a Marketplace resource shall be made in good faith after reasonable evaluation of the full Marketplace resource. You (including your employees and others acting on your behalf) may not review or comment on your own resource or those of competitors. As an exception, you may provide informational responses to support requests or other inquiries directed to you within the reviews or comments section of your resource. All reviews must comply with Tyootr’s RUP, and Tyootr (in its discretion) may take down reviews or block reviewers in event of a violation of the RUP.
8.3. Tyootr Marketplace Operations. Tyootr maintains sole discretion to determine all features and operations of the Tyootr Marketplace. You acknowledge that Tyootr has no obligation to promote, distribute, list or offer for Sale any Marketplace resource, or to continue to do so. With respect to Paid-via-Tyootr resource only, Tyootr is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the Tyootr Marketplace will be processed by Tyootr’s payment systems and will be subject to the Revenue Share terms above. Tyootr will have sole ownership and control of all Sales and other data Tyootr obtains from end users in connection with the Tyootr Marketplace, but will make available certain End User Data (as defined below) to you, subject to Section 8.4.
8.4. End User Data and Privacy‐Related Obligations.(a) End User Data. An end user may enable you or your resource to access End User Data. Based on the activities under this Agreement, Tyootr may provide you with access to End User Data.
(c) End User Communications. You may use End User Data to communicate directly with end users only where required by Law or as consented to or requested by the end user. But you may not send marketing messages to end users within any user experience integrated with Tyootr Products without Tyootr’s express written consent.
(d) End User Terms. You must ensure end users agree to your End User Terms, which must comply with all Laws.
(f) Security. You must use industry-standard security measures appropriate for all End User Data and your processing activities, adequate to preserve End User Data’s confidentiality and security and comply with all Laws. You will also comply with any security, coding practices, authentication or encryption requirements for resources in the Security Requirements. You agree to remediate all security vulnerabilities identified to you by Tyootr within the timeframes described in the Security Requirements.
(g) Security Incidents. Upon discovery or notice of any Security Incident, unless prohibited by Laws, you will promptly (within 24 hours) notify Tyootr via the ticket creation link at Resource Security Incident Management Guidelines. Your notice will provide Tyootr information about the Security Incident and how it may affect Tyootr Products, end users or End User Data, and you agree to provide further information and assistance related to the Security Incident described in the Marketplace Guidelines or as Tyootr may request. Without limiting your other obligations, in event of a Security Incident, you will be solely responsible, at your own expense, for investigation, remediation and your own notifications to affected end users and regulatory authorities in accordance with Laws and industry standards. However, you must obtain Tyootr’s approval for any breach notifications to end users that refer directly or indirectly to Tyootr. You must ensure that you have an updated contact name and contact information in your developer account for Security Incidents. Without limiting any other reserved rights of termination or suspension, Tyootr may de-list your resource from the Tyootr Marketplace or suspend use of or access of your resource to Tyootr products as a result of any Security Incident.
(h) Security and Privacy Review. Tyootr, or an authorized third party selected by us, may conduct a security or privacy review of any resource or its supporting infrastructure to ensure compliance with (i) your obligations under Section 8.4 or (ii) security and privacy related sections of the Marketplace Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments.
(i) Tyootr also manages bug bounty programs using third party service providers from time to time, as described at Marketplace Security. If you choose to participate as described at such link, you give Tyootr the right to review your Marketplace resource.
8.5. Export Controls and Economic Sanctions. You acknowledge that you develop and offer resources through Tyootr via its Marketplace, and therefore you agree to strictly comply with all U.S. export controls and economic sanctions laws and regulations in connection with these activities. You also acknowledge that Tyootr and others may lawfully rely on your determination of your Marketplace resources export control status. Thus, you hereby represent, warrant, and certify that: (1) your Marketplace resources are authorized for export from the United States and re-export to each country to which you permit them to be distributed or made available through the Tyootr Marketplace, in accordance with the requirements of the U.S. Export Administration Regulations, 15 C.F.R. Part 730 et seq.; and (2) either (i) the Marketplace resource do not contain, use or support any data encryption or cryptographic functions (“Encryption Technology”) and have Export Control Classification Number (“ECCN”) EAR99 or (ii) you have qualified each Marketplace resource containing, using or supporting Encryption Technology for export as a “mass market encryption item” having ECCN 5D992 in accordance with 15 C.F.R Part 742.15(b)(2), as an item eligible for License Exception ENC pursuant to 15 C.F.R Part 740.17(b)(1) having ECCN 5D002, or as an EAR99 item and will, upon request, provide Tyootr with a copy of the applicable self-classification report or mass market export classification ruling (CCATS), if applicable, issued by the United States Commerce Department, Bureau of Industry and Security. You further agree to comply with any and all ongoing export-control and reporting obligations, if applicable, related to any of your Marketplace resources. You agree to indemnify Tyootr of any claim brought against Tyootr for violation of any export-controls or economic sanctions law or regulation related to your Marketplace resources. You represent, warrant, and certify to Tyootr that you will comply with all applicable export control and economic sanctions laws and regulations.
8.6. Feedback. Providing feedback, comments or suggestions about the Tyootr Marketplace (“Feedback”) to Tyootr is wholly voluntary. Tyootr may freely use Feedback for any purpose.
8.7. Aggregated Information. In addition to Tyootr’s other rights, Tyootr may collect aggregated information regarding the Tyootr Marketplace and Marketplace resources (excluding any personally identifiable information). We will not provide information to any third party about Marketplace resource, or end users purchasing Marketplace resource, except as necessary for us to perform our obligations under this Agreement, or otherwise provide the products or services to our end user under the applicable Cloud Terms of Service, Tyootr Software License Agreement or our other applicable customer agreements.
8.8. Accreditation Programs. Tyootr offers certain programs under which (i) Marketplace Partners may self-certify or (ii) Tyootr may approve that Marketplace Partners, or their resource, meet certain standards for end user adoption, support, security and/or other criteria (“Accreditation Programs”).
9. Tyootr Control of Marketplace
Tyootr may determine in its sole discretion to make available or list any Marketplace resource through the Tyootr Marketplace, or to remove any App from the Tyootr Marketplace. Tyootr may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace resource in the Tyootr Marketplace does not relieve you of responsibility to ensure the Marketplace resource complies with this Agreement or to perform other obligations under this Agreement.
10. Term and Termination
10.1. Term. The term of this Agreement (the “Term”) will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or Tyootr terminates it.
11.2. Termination Rights.
(a) Either Tyootr or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular resource, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party’s intellectual property rights.
(b) Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by Tyootr at the time), Tyootr may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular resource) under the following circumstances: (i) Tyootr ceases to operate the Marketplace, (ii) you violate Tyootr’s RUP, (iii) Tyootr suspends or terminates the Tyootr Developer Terms as relates to you or your resource(s), or (iv) Tyootr determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to Tyootr or any third party or otherwise harm the Marketplace or other Marketplace partners or users.
11.3. Effect of Termination; Transition.
(a) Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your resource from the Marketplace, (i) in Tyootr's discretion, Tyootr may continue to fulfill any end user orders for resource pending as of the date the termination takes effect, and (ii) Tyootr will use reasonable efforts to take down the listing for your resource within forty-five (45) days after the effective date of termination (or, if specified by Tyootr, within the same period after notice of termination) (the “Transition Period”). Tyootr may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your resource, for its own record-keeping purposes.
(b) End User Rights. Unless otherwise specified by Tyootr, all end user licenses and subscriptions to resources (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable End User Terms. As such, Tyootr may continue to make available any resource for further access, downloads or re-downloads by existing end users of those resources for the duration of their applicable license, subscription or maintenance term (including after the Transition Period) (the “Surviving Term”), either directly or through Tyootr Partners.
(c) Your Transition Obligations. If you are a Marketplace Partner of Paid-via-Tyootr resource, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for doing the following, consistent with Tyootr’s guidance and instructions:
(1) for Cloud resource, making the resource (including any New Versions) available to Tyootr and Marketplace users on a hosted basis at least until the conclusion of any Surviving Terms for all end users who have purchased such resources;
(2) taking all actions necessary to move existing end users with Surviving Terms to your non-Tyootr license mechanism, including, as applicable: (i) providing an equivalent product that integrates to Tyootr applications without the use of Tyootr Connect, (ii) contacting end users and providing access, installation and migration instructions, and equivalent license terms and key, and/or (iii) providing end users with data migration tools and migration assistance;
(3) arranging to provide for ongoing support and maintenance (including New Versions) with respect to your resources for all end users who have purchased such rights for the duration of the term for which you have committed to provide such support and maintenance; and
(4) communicating such matters accurately and in a positive and professional manner to end users.
For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated resources to Tyootr for distribution under this Agreement thereafter, but Tyootr’s post-termination rights in this Section 11.3 will apply for the latest version of the resources you provided to Tyootr hereunder (and any prior version).
11.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional Tyootr Marketplace Terms) (excluding your participation in any App Program or use of related badges), and 10 (Tyootr Developer Terms) through 20 (General).
12. Representations and Warranties
You represent, warrant and covenant that: 12.1. You are at least 18 years of age and are able to form a legally binding contract. If Marketplace Partner is a business or other legal entity and not an individual, then the individual entering into this Agreement on Marketplace Partner’s behalf represents that he or she has all necessary legal authority to bind Marketplace Partner to this Agreement;
12.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
12.3. Before providing Tyootr any Content or listing Content in the Tyootr Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
12.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
12.5. You will immediately notify Tyootr if you lose any IP rights related to your Marketplace resource or become aware of a third party claim related to these rights;
12.6. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and
12.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your End User Terms) based on your use of third party “open source” software or other third party intellectual property in any resource. You will also promptly make available to Tyootr, end users and any other third party that is entitled to it, the source code corresponding to any resource or portion thereof if required, and in the manner required, by applicable third party terms and conditions. Tyootr’s use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
13.1. By Tyootr. Subject to the terms and conditions of this Agreement: (1) Tyootr shall defend a Marketplace Partner of a Paid-via-Tyootr resource from claims by third parties alleging that the Tyootr Marketplace itself, when used in connection with such resource, infringes such third party’s United States, European Union, or EU member state registered copyright or trademark and (2) Tyootr shall pay damages finally awarded by a court of competent jurisdiction against such Marketplace Partner for such a claim or, if Tyootr settles the claim, the settlement amounts. Tyootr’s obligations in this Section 13.1 apply only to the Tyootr Marketplace itself and not to any Marketplace resources, the Tyootr Platform, other Tyootr products or services, or other third party content hosted on or used with the Tyootr Marketplace, and in any case Tyootr’s obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the Tyootr Marketplace. As a condition to Tyootr’s obligations under this Section 13.1, you must provide Tyootr (i) prompt written notice of the claim (and in any event notice in sufficient time for Tyootr to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 13.1 sets forth Tyootr’s sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
13.2. By You. You will indemnify, defend and hold Tyootr and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any third party claim relating to any (i) Content or the use of Content (including any claims made by or arising from end users), (ii) your breach or alleged breach of this Agreement, or (iii) any Security Incidents caused by your resources or third party services supporting your resource (individually, a “Claim,” and collectively, the “Claims”). In any defense or settlement negotiations, you will keep Tyootr apprised of all relevant developments, including the choice of counsel. Tyootr may participate in the defense or settlement of any Claim at its own expense. You will provide Tyootr with reasonable notice of any judgment entered against Tyootr or any settlement terms offered to settle a Claim and you will not consent to the entry of a judgment or settle a Claim without Tyootr’s prior written consent, which we may not unreasonably withhold. If you do not promptly assume and reasonably conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then Tyootr may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 13.2 are independent of your other obligations under the Agreement.
14. Tyootr Confidential Information
14.1. Definition. All information disclosed by Tyootr that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of the Tyootr Marketplace and Tyootr’s applications; non-public aspects of third-party applications listed in the Tyootr Marketplace to which you obtain access as a result of the relationship between you and Tyootr under this Agreement; non-public End User Data provided to you by Tyootr; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and Tyootr under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Tyootr or anyone else.
14.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide Tyootr with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Tyootr’s cost, if Tyootr wishes to contest the disclosure.
14.3. Injunctive Relief. In event of actual or threatened breach of this Section 14, Tyootr shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
15. Independent Development; Information You Provide Is Not Confidential. Tyootr develops its own products and services and works with many other partners and developers, and either Tyootr or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your resources. Subject to Tyootr’s obligations relating to your financial data in Section 4.6 and resource source code in Section 8.4(f) and the terms of any applicable mutually-agreed non-disclosure agreement, nothing limits Tyootr or such third parties from doing so, and Tyootr has no confidentiality obligations for information you submit in connection with this Agreement.
16. Tyootr Trademarks/Publicity/Intellectual Property
You will not violate Tyootr intellectual property in any form, including Tyootr patents, trademarks, copyrights, and trade secrets. You will: (i) only use the Tyootr Marks in the form and manner as set forth in Tyootr’s Trademark Guidelines, Marketplace Brand Guidelines and AdWords Trademark Policy and only in connection with the sale of your Marketplace Apps in the Tyootr Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, Tyootr retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that Tyootr communicates to you regarding the use of Tyootr Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any Tyootr Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the Tyootr Marks, unless you are otherwise authorized to continue using the Tyootr Marks pursuant to a separate written agreement with Tyootr.
17. Disclaimers and Limitations of Liability
17.1. Disclaimer of Warranties. THE Tyootr MARKETPLACE, Tyootr MARKS AND ALL Tyootr DEVELOPER ASSETS ARE PROVIDED “AS IS” AND Tyootr EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
17.2. Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE AND EXCEPT FOR MARKETPLACE PARTNER’S BREACH OF SECTION 8.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 8.4 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 14 (CONFIDENTIALITY): (A) NEITHER YOU NOR TYOOTR SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR Tyootr’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TYOOTR MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED Tyootr'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, “TYOOTR MARGIN” MEANS THE AMOUNTS RECEIVED BY TYOOTR FROM SALES OF YOUR RESOURCES, MINUS THE REVENUE SHARE TYOOTR HAS PAID YOU.
17.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
As the Tyootr Marketplace evolves over time, we may need to update this Agreement. Therefore, Tyootr reserves the right to change this Agreement at any time in its sole discretion with the changes to the Agreement becoming effective thirty (30) days after notice (unless Tyootr specifies a shorter notice period). Tyootr will give you notice of the changes by posting an updated version of this Agreement on its website or within the Marketplace, or by emailing you at an email address you have provided. If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to Tyootr and (ii) withdrawing all of your Apps from the Marketplace. If you terminate this Agreement according to the preceding sentence, the changes will not apply to you. Otherwise, your continued participation in the Tyootr Marketplace after the changes take effect will constitute your acceptance of the changes. In addition, you may be required to click to agree to the modified Agreement to continue participating in the Marketplace.
19. Dispute Resolution; Governing Law
19.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 19.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 19.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
19.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 19.1 (Informal Resolution) and 19.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Tyootr from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
19.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
20. General This Agreement may not be amended except in writing signed by both parties or as provided in Section 18 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or partners, despite use of the term “Partner”. Each party will bear its own costs and expenses in performing this Agreement. Tyootr’s failure to enforce any provision of this Agreement will not constitute a waiver of Tyootr’s rights to subsequently enforce the provision. Tyootr may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Tyootr’s affiliates, contractors and service providers may exercise all rights of Tyootr under this Agreement, including Tyootr’s license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Tyootr’s prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give Tyootr written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that Tyootr determines that such assignment is to a competitor of Tyootr, Tyootr may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by Tyootr via email, via a posting in the Marketplace Guidelines, via the Partner Portal, or via a message through your Tyootr account, or (ii) by you via email to email@example.com or to such other email or physical addresses as Tyootr may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.