QT MARKETPLACE PUBLISHER AGREEMENT
1.1 This Qt Marketplace Publisher Agreement (”Agreement”) is a legally binding agreement between The Qt Company and You, an individual or company registering as a publisher in the Marketplace (“Publisher”). The Agreement is concluded upon Parties’ signature or through Publisher accepting the terms hereof online upon uploading any content in the Marketplace.
1.2 Upon Publisher's acceptance of the terms and conditions of this Agreement, the Publisher is entitled to upload their Extensions in the Marketplace and The Qt Company is granted a non-exclusive, royalty-free, worldwide right and license to promote, sell, test and distribute such Extensions through Marketplace in accordance with the terms of this Agreement.
1.3 Each Party shall notify the other Party in writing of a change of its contact information without undue delay.
2 QT MARKETPLACE
2.1 Marketplace is a publicly available online service, owned and operated by The Qt Company, through which individuals and companies can promote their Extensions.
2.2 Marketplace shall be produced and delivered in accordance with The Qt Company’s then current production methods, procedures and data communication connections and interfaces, which The Qt Company may change at any time and without any notice at its absolute and free discretion.
For the purposes of this Agreement, the following definitions shall govern:
For the purposes of this Agreement, the following definitions shall govern:
3.1 “Agreement” shall mean this Qt Marketplace Publisher Agreement.
3.2 "Critical Error" shall mean any mistake, problem, defect, malfunction or deficiency, which causes total or serious non-functioning of the Extension as provided in the relevant Documentation or, in the absence any Documentation, as reasonably expected.
3.3 “Documentation" shall mean any license terms, product descriptions, user manuals, installation information and other documents related to the Extension and use thereof.
3.4 “Effective Date” shall have the meaning set forth in Section 16.1.
3.5 “End Customer” shall mean a customer who purchases Extension(s) from the Marketplace or otherwise uses Marketplace.
3.6 “Extension” shall mean any and all libraries, plug-ins, tools, art and other artefacts and any related Documentation published on and distributed through Marketplace by the Publisher.
3.7 "Intellectual Property Right(s)" shall mean any and all intellectual property rights, including but not limited to copyrights, trademarks, trade names, trade secrets, patents, software, developments, research data, design rights, all designs (including interfaces), confidential information, and any and all applications for, registrations of and extensions, divisions, renewals and reassurance of, any of the foregoing, and rights therein, including without limitation (i) rights under any royalty or licensing agreements, and (ii) programming and programming rights, whether on film, tape or any other medium, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign.
3.8 “Marketplace” shall mean The Qt Marketplace owned and operated by The Qt Company.
3.9 "New Version" shall mean a modification to Extension, which may include corrections of errors and/or functional or performance improvements including the related updated Documentation with identification of any amendments made.
3.10 “Provisioning API” shall mean the technical interface used to transfer purchase information between The Qt Company and the Publisher.
3.11 “Taxes” shall have the meaning set forth in Section 12.1.
3.12 Term” shall mean the term of this Agreement, as defined in Section 16.
4 PUBLISHING EXTENSIONS
4.1 The following types of Extensions are accepted to the Marketplace:
4.1.1 Free Extensions
Extensions provided free of any charge by either individual persons or registered companies.
4.1.2 Marketplace Paid Extensions
Extensions the End Customers pays through the Marketplace. When providing Extensions which the End Customer is to pay through Marketplace, the Publisher shall provide The Qt Company with an integration to Provisioning API provided and maintained by The Qt Company.
4.1.3 Publisher Paid Extensions
Extensions the End Customer pays directly to the Publisher. Extensions which the End Customer is to pay directly to the Publisher shall be separately agreed with The Qt Company prior to uploading thereof into the Marketplace and shall not be uploaded into the Marketplace prior to conclusion of such an agreement.
4.2 Paid Extensions referred in Sections 4.1.2 and 4.1.3 above can be provided to Marketplace by registered companies only. Marketplace does not accept Paid Extensions from individual persons.
4.3 Publishing Extension on Marketplace and/or receiving any payments thereof may be subject to requirement to sign-up for a user account or some other verification method as determined by The Qt Company from time to time at its free and absolute discretion. Such user account or verification method may be subject to additional terms.
4.4 Subject to the terms of this Agreement the Publisher shall be free to determine the end user license terms (“EULA”) applicable to the use of Extensions by the End Customers. Any such EULA shall be solely between the Published and relevant End Customer. The Qt Company will not be responsible for, and will not have any liability whatsoever under, any such EULA.
4.5 Publisher is responsible for accompanying the Extensions with sufficient, accurate and up-to-date Documentation.
4.6 For sake of clarity, nothing in this Agreement shall be construed as a limitation of Publisher’s right to freely determine prices and channels for any of its products, including Extensions, and to freely promote and distribute Extensions via any other channels upon Publisher’s sole discretion, provided however that Publisher shall not use any user information obtained via Marketplace to sell or distribute any products (including Extensions) through other channels.
5 END CUSTOMER SUPPORT
5.1 Publisher shall be solely responsible for support and maintenance of any Extensions uploaded into Marketplace as well as addressing any complaints made by End Customers.
5.2 Publisher is free to decide at its own discretion on the level and content of support it provides to End Customers. Publisher, however, acknowledges and agrees that Marketplace has a global reach and failure to provide adequate support to End Customers may likely result in negative ratings and reviews that will potentially lead to low exposure, low sales and increased refunds.
5.3 Notwithstanding the above, Publisher shall, at minimum, provide up-to-date:
5.3.1 email address or an online service where End Customers can ask questions, make complaints or report issues; and
5.3.2 telephone, email or web-based support access which The Qt Company may use to forward inquiries and complaints from End Customers to Publisher.
6 NEW VERSIONS
6.1 Publisher shall cause that any New Version that is made available to public in any means or via any channels or platforms by or on behalf of the Publisher, shall also be made available to Marketplace without undue delay after the first launch to public of such New Version.
7 REMOVING EXTENSIONS
7.1 Publisher is entitled to remove Extensions from the Marketplace at any time by providing advance written notice thereof to The Qt Company as follows:
7.1.1 Thirty (30) days prior notice for removal of Free extensions, and
7.1.2 Ninety (90) days prior notice for removal of Paid Extensions.
7.2 In the event the removal is due to Publisher having determined, suspected or received a notice or claim on issues warranted by the Publisher in Section 13.3 of this Agreement, Publisher shall inform also The Qt Company on such reason for removal.
7.3 Any such removal of the Extension by the Publisher shall, upon End Customer’s request, be subject to refund in accordance with Section 8.
7.4 The Qt Company reserves a right, at its free and absolute discretion, to remove an Extension from the Marketplace without any liability towards the Publisher (i) with immediate effect and without any advance notification in case The Qt Company reasonably considers a breach of warranty specified in Section 13.3 is threatening or taking place or Extension is not accompanied with sufficient Documentation pursuant to Section 4.5, or (ii) for any reason whatsoever, upon providing ninety (90) days’ prior notice thereof to the Publisher.
8.1 Publisher authorizes The Qt Company, at its free discretion, to pay the End Customer a full, or partial refund of the price for any Paid Extension sold through Marketplace where the End Customer has requested refund, where such claim of refund is made (i) within two (2) weeks after the End Customer’s purchase of the Extension, (ii) at any time based on a cause attributable to issues warranted by the Publisher in Section 13 hereunder, or (iii) pursuant to applicable mandatory consumer legislation. Before making any such refund The Qt Company shall contact the Publisher to check whether the Publisher has already addressed the complaint and whether the End Customer has already been refunded. Any such refunds paid by The Qt Company shall be deducted in full from payments payable by The Qt Company to the Publisher pursuant to Section 9 of this Agreement. In the event The Qt Company determines that it is unable to deduct or offset such paid refunds from payments to the Publisher within thirty (30) days after such refunds have been paid to the End Customer, The Qt Company is entitled to invoice corresponding amounts from the Publisher.
9 PRICING AND FINANCIAL TERMS
9.1 Publisher sets the prices payable by End Customers for Paid Extensions in US Dollars (USD).The Qt Company may, at its discretion, also present the prices for Extensions to End Customers in other currencies and, in such a case, remit payment to Publisher using the applicable currency exchange rate valid at the time of remitting payment to Publisher.
9.2 Publisher hereby appoints The Qt Company as its agent to receive and process any payments by End Customers for Extensions on behalf of the Publisher in accordance with the terms of this Agreement.
9.3 Payments received from End Customers for any Paid Extensions sold through Marketplace shall be shared (after deduction of any applicable bank and transaction fees and Taxes) between the Parties as, Publisher gets eighty percent (80 %) and The Qt Company gets twenty percent (20 %).
9.4 With respect to Marketplace Paid Extensions the Publisher shall provide The Qt Company with a valid bank account to be used for remitting Publisher’s share of payments received by The Qt Company from the sale of any and all Marketplace Paid Extensions of the Publisher. The Qt Company shall make such payments in USD monthly in arrears via Electronic Funds Transfer (“EFT”), provided that minimum payment is one hundred (100) USD and The Qt Company is entitled to withhold any payments, without interest, until the minimum total amount of one hundred (100) USD is accrued. The Qt Company shall remit payments to the Publisher within thirty (30) days from the end of the respective calendar month. Any payment shall be accompanied with a written report on the amount of Extensions sold and relevant information used to determine the payment payable to the Publisher. Any late payment shall carry penalty interest in the amount of four per cent (4 %) per annum on any unpaid balances that remain past due.
9.5 With respect to Publisher Paid Extensions the Parties shall, upon agreeing on such Publisher Paid Extensions to be allowed to Marketplace, also agree on how the Publisher shall remit The Qt Company’s share of payments received from the sale of such Publisher Paid Extensions through Marketplace to The Qt Company.
10.1 Publisher of Free Extension(s) can request and accept donations for their work.
10.2 Publisher is solely responsible for providing a payment system and separate web site for payment of such donations. The Qt Company or Marketplace does not accept any donations on behalf of or in any way manage the donations for the Publisher.
11.1 The Qt Company may, at its discretion, run marketing promotions, campaigns and activities to drive traffic and create demand for the Marketplace. These campaigns and activities will typically be generic in nature, and not specific to any specific Extension. Publisher recognizes that such generic activities do not necessarily result in page views or similar specific results to Publisher’s Extensions. The Qt Company reserves the right to freely select the Extension(s) to any Marketplace related marketing promotions, campaigns and activities.
11.2 Publisher is entitled to publish links on their own web pages to the Marketplace or directly to their Extensions available at Marketplace.
11.3 Publisher may, by itself or through third parties, at any time run supportive marketing activities to drive traffic to their own Extensions published in the Marketplace.
11.4 Parties may also run joint market strategies or activities relating to Marketplace and Publisher’s Extension(s). Any such joint activities shall be separately agreed between the Parties.
11.5 The Qt Company may, at its discretion, allow End Customers to rate and review Extensions. The Qt Company reserves the right to display the results of such ratings and reviews to the Publisher and/or generally to End Customers on the Marketplace in a manner that will be determined at The Qt Company's sole discretion.
12.1 Prices payable by End Customers for any Extensions may be subject to value added (VAT), sales Tax or other similar taxes or official charges payable or levied (including but not limited to withholding tax) under applicable legislation on the basis of the sales or other transactions made under this Agreement (”Taxes”). Whenever The Qt Company determines that any Taxes are payable, the Publisher authorizes The Qt Company to add such applicable Taxes on the prices of Extensions charged from the End Customers and make any necessary deductions from the payment due to the Publisher under this Agreement.
12.2 Each Party shall pay any taxes or levies imposed on it as a result of this Agreement and payments hereunder (including that required to be withheld or deducted from payments) and shall furnish suitable evidence of such payments to the other Party to enable it to obtain any credit that might be available to it.
13.1 The Parties warrant their respective full right and power to enter into this Agreement.
13.2 Publisher hereby represents and warrants that it has the power and authority to distribute Extensions through Marketplace pursuant to this this Agreement
13.4 Except as expressly provided above and as Publisher may provide to End Customers under its applicable license terms, and to the maximum extent permitted by applicable law, both Parties disclaim any and all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, regarding the Extensions and Marketplace. In particular, The Qt Company expressly disclaims any warranties that Marketplace will satisfy Publisher’s expectations or that Marketplace will operate without defect or error or that the operation thereof will be uninterrupted.
13.5 The express obligations and warranties made by the Parties in this Agreement are in lieu of and to the exclusion of all other warranties, conditions or other terms of any kind, express or implied, statutory or otherwise relating to Extensions or Marketplace.
14 PROPRIETARY RIGHTS
14.1 The Qt Company and/or its licensors shall continue to own all right, title and interest, including the Intellectual Property Rights, in and to the Marketplace. Publisher and/or its licensors shall own the same with respect to Extensions. Neither Party shall provide the other Party with any rights or licenses to Marketplace, Extension or any other Intellectual Property Right of a Party, other than those expressly granted hereunder.
14.2 In the event Publisher provides to The Qt Company, attached to the Extensions or otherwise, any branding content or other Intellectual Property Rights protected material, the Publisher hereby grants The Qt Company a non-exclusive, royalty-free, worldwide right and license to use and display such material in connection with the distribution and sale of Extensions through Marketplace or otherwise for the purpose of this Agreement.
15.1 Neither Party ("Receiving Party" for the purposes of this Section 15) shall disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement any technical or commercial information ("Information") received from the other Party ("Disclosing Party") in whatever form under or in connection with this Agreement without the prior written permission of the Disclosing Party save for Information, which:
• was in the possession of the Receiving Party prior to disclosure hereunder; or
• was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or
• was disclosed by a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or
• was independently developed by personnel of the Receiving Party having no access to the Information.
15.2 The Parties agree that the use of their names in any statements, announcements and/or press release of this Agreement or part thereof, or of the relationship herein described, shall not be made by a Party without the prior written acceptance by the other Party.
15.3 Affiliates of a Party hereto engaged in the performance of this Agreement shall not be deemed to be third parties for the purposes of this Section 15 on condition that disclosure of Information may only occur on need to know basis and that the respective Party ensures full compliance by such Affiliates of all of the provisions of this Section 12.
15.4 Each Party shall limit access to Information to those of its personnel for whom such access is reasonably necessary for the proper performance of this Agreement and obtain written undertakings of confidentiality, which are not less restrictive than in this Agreement, from them.
15.5 Notwithstanding the foregoing, neither Party shall be liable to the other for any unauthorized disclosure of Information if it can be established that it has exercised the same degree of care in protecting the Information from such disclosure as it exercises in respect of its own confidential information and business secrets.
15.6 The provisions of this Section 15 shall bind the Parties for a period of five (5) years from the date of signing of this Agreement or, in respect of every item of Information later disclosed hereunder, a period of five (5) years from disclosure, whichever period is longer regardless of any earlier termination, cancellation or completion of this Agreement.
15.7 Without prejudice to the generality of the foregoing, each Party agrees not to use any of the Information or technology of the other Party for any use or purposes except those expressly specified herein.
16 TERM AND TERMINATION
16.1 This Agreement shall enter into force upon signature of both Parties, or Publisher’s acceptance of the same in connection with uploading Extension into Marketplace (“Effective Date”), as the case may be, and remain in force (i) for as long as Publisher has any Extensions available on Marketplace and 90 days thereafter, or (ii) until terminated by either Party pursuant to the terms of this Agreement.
16.2 Each Party shall have the right to terminate this Agreement immediately upon written notice in the event that the other Party (i) commits a breach of warranty or other material breach of this Agreement or (ii) becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of the assets, or ceases to conduct business or an equivalent act to any of the above occurs under the laws of the jurisdiction of each Party.
16.3 Upon termination or expiry of this Agreement, all rights of Parties under this Agreement shall be terminated (including but not limited to all Extensions being removed from the Marketplace). Any termination or expiry shall not (i) relieve Publisher of its obligation to pay any payments due or accrued to The Qt Company prior to the effective date of termination, and Publisher shall immediately pay to The Qt Company all such payments upon the effective date of termination; (ii) affect any rights of End Customer to use Extension, which have been delivered upon or prior to the termination or expiration of this Agreement, or (iii) change the Publisher’s obligation to fulfil commitments to deliver or support Extensions that have been previously purchased or downloaded by End Customers.
17 INDEMNIFICATION AND LIMITATION OF LIABILITY
17.1 To the maximum extent permitted by law, Publisher shall defend, indemnify, and hold harmless The Qt Company, its affiliates, and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or accruing from Extensions or provisioning thereof to End Customers through Marketplace under this Agreement. The Qt Company shall inform Publisher promptly about any such claim or legal proceeding brought against The Qt Company.
17.2 NEITHER PARTY SHALL BE LIABLE IN CONTRACT, TO OR OTHERWISE, WHATEVER THE CAUSE THEREOF, FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS OR GOODWILL, LOSS OF REVENUE OR LOSS OF PROFITS, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT IN CASES OF INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OR BREACH OF CONFIDENTIALITY.
18 FORCE MAJEURE
18.1 The performance by either Party of its obligations under this Agreement shall be excused for a period that is reasonable under the circumstances if the failure or delay thereof is caused by any unforeseeable events or circumstances beyond such Party's control such as labor disputes, acts of god, riots, war, fire, explosion, natural disasters, embargo or requisition.
18.2 The Party wishing to claim relief by reason of any such circumstance shall notify the other party in writing without delay on the intervention and on the cessation thereof.
19.1 This Agreement shall be governed under the laws of Finland, excluding any choice of laws principles. Any disputes that the Parties are unable to settle between themselves, shall be finally resolved in arbitration held in Helsinki, Finland, in accordance with arbitration rules of International Chamber of Commerce (ICC). Arbitration shall be held in English language. The award shall be final and binding on the parties hereto and enforceable in any court of competent jurisdiction. The Parties undertake and agree that all arbitral proceedings conducted with reference to this Section shall be kept strictly confidential and all information disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit the Parties' rights to seek interim injunctive relief or to enforce an arbitration award in any court of law.
19.2 This Agreement contains the entire Agreement between the Parties on the subject matter of this Agreement, and supersedes all representations, undertakings and agreements previously made between the parties with respect to the subject matter of this Agreement.
19.3 The Qt Company is entitled, at any time, to unilaterally change the terms of this Agreement by no less than thirty (30) days advance written notice thereof to the Publisher. In the event Publisher does not agree with such modifications to the Agreement, the Publisher may terminate this Agreement to end at the effective date of such changes by providing a written notice thereof to The Qt Company no less than seven (7) working days before such date of termination. Such termination constitutes Publisher’s sole and exclusive remedy in such circumstances. Parties specifically agree that Publisher’s continued use of Marketplace constitutes Publisher’s acceptance of the modified terms of this Agreement.
19.4 Publisher shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement without the explicit prior written consent of The Qt Company. The Qt Company shall be entitled to freely assign or transfer any of its rights, benefits or obligations under this Agreement.
19.5 Any notice given by one Party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing or when delivered to the recipient by registered mail to the following addresses (or such other address as may be notified in writing from time to time by either Party).