Yalla Apps Developer Agreement
(UPDATED FEBRUARY 2011)
This agreement (“Agreement”) contains terms of the relationship between you (the Application Provider accepting the Agreement) and Prototype Interactive FZ LLC or its Affiliate (“Prototype”) relating to your use of the Yalla Apps Application Submission Service and the Yalla Apps Website.
By clicking “I accept” and/or by submitting an Application or Module and any related materials to Yalla Apps, Application Provider (a) represents that the person accepting this Agreement has the requisite authority to accept this Agreement on behalf of Application Provider, and (b) agrees to be bound by the terms and conditions contained in the Agreement then in effect on the date of acceptance or submission.
1. Definitions. In this Agreement the following definitions apply:
- “Account Fee” means the fee you pay to Yalla Apps to establish an annual membership to submit applications for aggregation. The Account Fee shall be USD$0 per year.
- “Application” means a Windows Phone 7 Application, Windows Phone 7 Code, Windows Phone 7 Module or Windows Phone 7 Component.
- “Application Proceeds” means Net Receipts minus the Yalla Apps Marketplace Fee.
- “Certification” means the process for determining the compliance of an Application with the Certification Requirements.
- “Certification Fees” means fees you may be required to pay for Certification of Applications.
- “Certification Requirements” means the technical, functional, content, and other policy requirements provided by Microsoft at http://create.msdn.com.
- “Developer Website” means the website, currently at http://yallaapps.com, through which Yalla Apps communicates with Developers.
- “Documentation” means the Microsoft Developer Website provided by Microsoft (at http://create.msdn.com) and the Certification Requirements.
- “Launched Markets” means the collection of countries listed in Exhibit A. Yalla Apps may amend Exhibit A from time to time in its sole discretion.
- “Module Market” means the section of the Yalla Apps Website that allows users to share and download code, modules, templates and components for free or a specified fee.
- “Net Receipts” means the total amounts collected in connection with the download of an Application from Windows Phone Marketplace or Module Market, (i) minus any sales, use, or VAT/GST taxes collected for remittance; and (ii) minus any amounts refunded; and (iii) minus any amounts retained by the Windows Phone Marketplace.
- “Purchaser” means any end user customer who downloads an Application, regardless of whether such customer pays a fee to obtain the Application.
- “Windows Phone 7 Application” means a software application (including games, themes, and other applications that operate locally on the device or provide access to Internet-based services), and any related materials such as metadata and screenshots, designed for use on a mobile phone running a version of Windows Phone OS 7.
- “Windows Phone 7 Device” means a mobile communications device running a version of Windows Phone OS 7.
- “USD” means United States Dollar.
- “Yalla Apps Account” means a service account for the Developer Website, which includes a user name and password.
- “Yalla Apps Marketplace Fee” means the percentage of Net Receipts for an Application that is retained by Yalla Apps as a fee for submitting the Application to the Marketplace. The Yalla Apps Marketplace Fee shall be twenty percent (20%) of Net Receipts for each Application submitted to the Windows Phone Marketplace and thirty percent (30%) of Net Receipts for each Application submitted to the Module Market.
- “Yalla Apps Service” means the Yalla Apps website and application submission service.
2. Yalla Apps Account.
You are required to open a Yalla Apps Account to access certain parts of the Yalla Apps Service. Only you may use your Yalla Apps Account, and you are responsible for all activity that takes place with your Yalla Apps Account or any Associated Accounts. You may not share your user name and password or otherwise authorize any third party to access or use the Yalla Apps Service on your behalf. You must keep your account in good standing, which includes, without limit, paying any Fee in a timely manner, complying with this Agreement, keeping your information current, and providing only true, complete and accurate information in connection with your Yalla Apps Account. Yalla Apps may verify the information you submit, which may include providing your information to third party verification services. Failure to keep your account in good standing may, among other things, result in possible revocation of your Yalla Apps Account, removal of your Applications from the Marketplace and forfeiture of any associated Account Fee.
3. Windows Phone 7 Application submission for Windows Phone Marketplace
- Account Fee. You have to pay a Account Fee to submit Applications to Yalla Apps for aggregation in the Windows Phone Marketplace. You may only submit Applications for distribution through Yalla Apps if your country of residence or the country where you legally operate your business is not part of the Launched Markets. Yalla Apps preserves the right to discontinue accepting new account registrations or submissions for residents and/or businesses of the Launched Markets in the future. Yalla Apps will notify Developers when Yalla Apps adds a country to the list of Launched Markets.
- Submission. You are solely responsible and liable for the Applications you submit. You are responsible for providing end user support for your Applications. All copies of the Application (e.g. the electronic files) you submit will be retained (or destroyed) by Yalla Apps and will not be returned. You are responsible for retaining a back up copy of your Application.
- Evaluation and Testing. If Yalla Apps offers a “device unlock” service, however named, through the Yalla Apps Website, you may use such service to unlock a reasonable number of Windows Phone 7 Devices, in accordance with any specifications and technical limitations of the service, solely for the purpose of using such unlocked Windows Phone 7 Device to test and evaluate your Applications. For purposes of this Section 3.c, “unlock” means to enable the Windows Phone 7 Device to load and run Applications that are being developed for the Windows Phone Marketplace.
- Certification. Within a reasonable period of time after you submit an Application to Yalla Apps, and provided that you have paid any applicable Fees, Yalla Apps will submit the application for Application Certification to the Windows Phone Marketplace. Yalla Apps is not the authority which will certify the application for distribution and will only forward any feedback from the Certification process to the Application Provider. For additional information about the Certification process, visit http://create.msdn.com.
- Distribution. Yalla Apps has no obligation to submit any Application.
- Removal. Yalla Apps reserves the right to remove any Application from the Windows Phone Marketplace or Yalla Apps Website for any reason. Such reasons may include, without limitation, (i) your breach of the terms of this Agreement; (ii) your express termination of this Agreement or of the license grants associated with an Application; (iii) an assertion or claim that your Application infringes the intellectual property rights of a third party. Unless your Application is removed or disabled for breach of this Agreement or in response to an infringement allegation, Yalla Apps will pay to you the amounts owed, if any, in connection with the distribution of your Application before removal.
4. Appointment as Agent or Commissionaire; Licenses.
- Appointment of Yalla Apps. You appoint Yalla Apps to act as your agent or commissionaire, as applicable, in offering and providing the Application to Purchasers through the Windows Phone Marketplace or Module Market. You do not transfer ownership of the Application to Yalla Apps by submitting it, but you do grant to Yalla Apps, in its capacity as your agent or commissionaire, the worldwide right (a) to host, use, reproduce, distribute, license, and sign the Application for purposes of performing Certification and (b) to host, reproduce, market, promote, and distribute the Application to Purchasers as your agent or commissionaire, as applicable. If you use the functionality in the Yalla Apps Website to request that Yalla Apps remove your Application from availability in the Windows Phone Marketplace or Module Market, within a reasonable period of time Yalla Apps will remove the affected Application. You also grant Yalla Apps the right to publish your entity name, Application titles, and Marks, in connection with the distribution and marketing of the Application through the Windows Phone Marketplace and Yalla Apps Service and in marketing campaigns for the Application.
- License to Purchaser. You, not Yalla Apps, will license the right to install and use the Application to Purchasers. You may provide a license agreement to the Purchaser with your Application. If you do not provide a license agreement with your Application, then the Standard Application License Terms of the Windows Phone Marketplace will apply between you and Purchasers of your Application.
5. Application Requirements. Each Application you submit to Yalla Apps must comply with the following requirements (the “Application Requirements”):
- The Application must comply with and remain in compliance with all requirements and obligations detailed in the Documentation. If the Documentation was revised and your application is no longer in compliance you may resubmit your application.
- The Application must comply with the applicable laws of each jurisdiction into which you request distribution of the Application, including (i) export control laws and (ii) laws and regulations relating to collection and use of user information by your Application.
- You are, and will continue to be, at your sole cost and expense, responsible for securing, reporting and maintaining all necessary rights, clearances and consents and paying all licensing fees (including but not limited to applicable public performance license fees to music publishers and/or performance rights organizations (e.g., ASCAP, BMI, and SESAC)) and other sums, costs and/or consideration associated with providing music or video (and all content embodied therein) in and through your Application, and for undertaking all associated reporting obligations related thereto.
- Your Application must not contain any viruses, hidden content or other malicious applications (including, for example, any “trap doors,” “worms,” “Trojan horses,” “time bombs,” back doors, disabling devices, or code blocks) or other unauthorized, hidden, or harmful programs.
6. Application Pricing; Taxes on Applications. When you submit an Application to Yalla Apps, you may
designate the price (if any) to be charged to Purchasers, and Yalla Apps will use that price in connection with the submission of your Application through the Windows Phone Marketplace or Module Market.
- Except as specifically provided in this Agreement, each party will bear its own costs and expenses in connection with the performance of its obligations under this Agreement. Costs and expenses include, but are not limited to, the cost of internal resources or personnel that are used by a party to perform its obligations.
- Taxes. Neither party is liable for any taxes the other is legally obligated to pay and which relate to any transactions contemplated under this Agreement. Each party will pay to the other any sales, use or value added taxes it owes due to entering into this Agreement and which the law requires be collected from it by the other party. Neither party will collect taxes covered by a valid exemption certificate provided by the other. Each party will indemnify, defend and hold the other harmless from any claims, costs (including reasonable attorneys’ fees) and liabilities that relate to that party’s taxes. If the law requires that taxes be withheld from any payments from one party to the other, such amounts will be withheld and paid to the appropriate taxing authority. The party that withholds such taxes will deliver to the other an official receipt for all taxes withheld. The parties will use reasonable efforts to minimize any taxes withheld to the extent allowed by law. This section will govern the treatment of all taxes relating to this Agreement.
7. Payment Terms and Fees.
- As complete compensation to you for the submission of each Application under this Agreement, Yalla Apps will pay you applicable Application Proceeds, if any.
- Application Proceeds. Application Proceeds will be calculated on a monthly basis based on Net Receipts. If total Application Proceeds payable to you for a month exceed USD$400, then Yalla Apps will remit payment to you in accordance with this Section 7. If total Application Proceeds for the month are less than USD$400, then Yalla Apps may elect to carry forward the amount owed to subsequent months until the total amount owed exceeds USD$400.
- If Yalla Apps removed any Application(s) of yours from the Windows Phone Marketplace and/or Purchasers’ devices during the applicable month for breach of this Agreement or in response to an allegation of intellectual property infringement, Yalla Apps will deduct any costs incurred in connection with the removal of such Application(s) from any Application Proceeds otherwise payable to you under this Section 7. If Yalla Apps terminated your Account during the applicable month for breach of this Agreement, Yalla Apps will deduct any costs incurred in connection with closing your Account from any Application Proceeds otherwise payable to you under this Section 7 for the applicable month.
- Payment Processing. Yalla Apps will make all Application Proceeds payments to you via PayPal or MoneyBookers. You are required to provide a valid PayPal email address or MoneyBookers account to receive payments. Failure to provide a valid PayPal email address or MoneyBookers account and general account information may result in Yalla Apps removal of your Application from distribution and forfeiture of amounts owed to you under this Agreement. Yalla Apps is not responsible for delay, loss or misapplication of funds due to incorrect or incomplete information supplied by you. You acknowledge that the amount you actually receive will depend in part on the rates and fees imposed by your financial institution and on any applicable tax withholding requirements, and that the amount you receive will be inclusive of any sales, use, or value-added taxes that may be chargeable by you to Yalla Apps in connection with the Yalla Apps Fee. You must provide Yalla Apps (or its third party payment processor) with all financial, tax and banking information requested in order to make payment of amounts owed under this Agreement. Yalla Apps will notify you of any changes to the required information via updates by email.. Failure to provide such information within sixty (60) days after submission of your first Application, or failure to keep such information current and accurate, may result in Yalla Apps removal of your Application from distribution and forfeiture of amounts owed to you under this Agreement.
8. Warranties. You represent and warrant to Yalla Apps and each Distributor, as applicable, that:
- You have the power and authority to enter into this Agreement and to fully perform your obligations under this Agreement;
- You are at least 18 years of age (or of an age of full legal capacity in the location where you reside) on the date you submit your Application(s) to Yalla Apps;
- Listing and distribution of your Application in the Windows Phone Marketplace does not violate any agreements to which you are a party or of which you are otherwise aware;
- You have obtained any and all consents, approvals or licenses (including written consents of third parties where applicable) required for you to submit and offer for distribution your Application(s) under this Agreement and for your Application(s) to access any Internet-based services, if any, to which the Application(s) enables access; and
- The information you provide to Yalla Apps under or in connection with this Agreement is true, accurate, current, and complete.
Confidentiality. The terms and conditions of this Agreement are Confidential Information under the Agreement. Upon termination or expiration of this Agreement , each party will return and/or destroy the other party’s Confidential Information and all proprietary information or materials disclosed or provided under this Agreement.
10. Disclaimer, Limitation of Liability, and Defense of Claims.
a. DISCLAIMER OF WARRANTY. WE PROVIDE THE YALLA APPS SERVICE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING THE YALLA APPS SERVICE TO SUBMIT YOUR APPLICATION(S). TO THE EXTENT PERMITTED BY LOCAL LAW, YALLA APPS, ON BEHALF OF ITSELF AND EACH DISTRIBUTOR, EXCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE YALLA APPS SERVICE. WITHOUT LIMITING ANY OF THE FOREGOING, DISTRIBUTORS EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO OR USE OF THE YALLA APPS SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
b. LIMITATION OF LIABILITY. UNDER THIS AGREEMENT, YOU CAN RECOVER FROM YALLA APPS AND ITS AFFILIATES ONLY DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO YOUR ACCOUNT FEE. YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES FROM ANY DISTRIBUTOR. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF DISTRIBUTOR KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU BECAUSE YOUR STATE OR COUNTRY MAY NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES.
c. Duty to defend. You will defend, indemnify and hold harmless each Distributor, as applicable, from and against any and all claims made or brought by an unaffiliated third party, and costs, losses, damages and expenses (including reasonable attorneys’ fees) relating thereto: (i) alleging that your Application infringes its copyright, trademark, or patent rights, or misappropriates its trade secret or undisclosed information; (ii) arising from a failure of your Application to comply with any of the Application Requirements; (iii) relating to the use of or inability to use the Application, including any product liability claims; or (iv) arising from any breach of any warranty in this Agreement by you. Your obligations under this subsection are subject to all of the following conditions: Distributor will (A) notify you promptly in writing of the claim; provided however, a Distributor’s failure to notify you shall not relieve you of any liability that you may have, except to the extent that such failure materially prejudices your legal rights; and (B) provide you with reasonable assistance in defending the claim (and you will reimburse Distributor for any reasonable out-of-pocket expenses incurred in providing that assistance). Any settlement or compromise of a claim covered by this section cannot obligate a Distributor in any manner without such Distributor’s prior written consent.
d. Distributors who are not party to this Agreement are beneficiaries of this Agreement solely for the purpose of enforcing the rights granted to such Distributors in this Section 10.
11. Term and Termination.
- a. This Agreement will remain in effect until terminated.
- Termination for convenience. Either of us may terminate this Agreement at any time and for any reason (or no reason) by giving at least sixty (60) days written notice.
- Termination for breach. Either of us may terminate this Agreement immediately in the event of a material breach of this Agreement by the other party which is not cured within thirty (30) days after receipt of written notice of the breach.
- If you terminate this Agreement or request that Yalla Apps remove your Application from the Windows Phone Marketplace, you agree that Yalla Apps may retain a copy of the affected Application(s).
- You will identify an individual to serve as the primary contact under this Agreement. This primary contact will be the default administrator for this Agreement, and will receive all notices unless you change the primary contact by visiting http://yallaapps.com.
- All notices that you provide to Yalla Apps under this Agreement must be sent to the following email alias: email@example.com.
- Yalla Apps may disclose your contact information as necessary for Yalla Apps to administer this Agreement through its Affiliates and other parties that help Yalla Apps administer this Agreement.
- Yalla Apps may assign this Agreement at any time. You may not assign this Agreement or any rights or obligations hereunder without the express written consent of Yalla Apps.
- Yalla Apps may sublicense its rights under this Agreement to third parties to assist Yalla Apps in performing its obligations under this Agreement, provided that Yalla Apps will be responsible for the performance of such third parties subject to the terms of this Agreement.
- The parties intend for this Agreement to be written in English. Any notices required or provided under this Agreement will be in English. In the event of any conflict between the English version of this Agreement or any notices and a translation, the English version will prevail.
- This Agreement is governed by the laws of the United Arab Emirates, which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles. You irrevocably consent to the exclusive jurisdiction and venue of the Emirate Dubai, United Arab Emirates for all disputes arising out of or relating to this Agreement.
- Any claim related to this Agreement or to the Yalla Apps Service must be brought within one year. If it is not filed within that time, then the claim is permanently barred. This applies to you and your successors and to Yalla Apps and our successors and assigns.
- Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive.
- This Agreement is nonexclusive, and nothing in this Agreement may be construed as restricting Yalla Apps from entering into other, similar agreements with other application providers, or from acquiring, licensing, developing, manufacturing, or distributing technology that is similar to your Application(s), nor as restricting you from entering into other, similar agreements with other application distributors.
- Yalla Apps may update this Agreement at any time in its sole discretion. Yalla Apps recommends that you review this Agreement for updates each time you submit an Application or any related materials. By submitting an Application and/or any related materials under this Agreement, you agree to be bound by the terms and conditions contained in the Agreement then in effect on the date of submission. If you do not agree with an update, do not submit an Application or any related materials, and notify Yalla Apps that you are terminating the Agreement.