Developer Distribution Agreement for the Hami Apps Store

December 20, 2011 v2.0 Developer Distribution Agreement for the Hami Apps Store Page1

Developer Distribution Agreement for the Hami Apps store This Developer Distribution Agreement is made by and between Mobile Business Group of Chunghwa Telecom Co., Ltd. (hereinafter referred to as Chunghwa ), a Taiwan corporation with principal place of business at No. 35, Aiguo East Rd, Taipei City 106, Taiwan (R.O.C.), and Hami Apps store Developer (hereinafter refer to as Developer or Developers ). The marketplace Hami Apps has created and operated which allows registered Developers to distribute products and services directly to Hami Apps Users. Now, therefore, in consideration of the promises hereinafter made by both Chunghwa and Developer hereto, it is agreed the terms and conditions list as follows : Article 1 (Subject Matter) The Developers consign Chunghwa to undertake sale of non-physical digital products or services to Hami Apps Users. Developers shall provide on its own hardware, software and website content etc for those non-physical digital products or services. While Chunghwa provided consignment services and shall be entitled to collect commission accordingly. Article 2 Article 3 (Applicable Parties) In this Agreement Chunghwa means Chunghwa Telecom Co., Ltd. and its branches. (Contract Period) Page2

1. This Agreement is effective for an initial period of one (1) year starting from the effective date. 2. In absence of its written notice of modification or termination which is served by either Chunghwa or Developer at least three (3) months prior to the expiration date of this Agreement, this Agreement shall continue on a rolling one (1) year basis, each on the same terms. Article 4 (Definitions) In this Agreement, the following words and expressions shall have the common meaning set out as follows: 1. Products means the Developer s non-physical digital products and services except for the mobile value-added products which it grants to Chunghwa a right to sell and distribute. 2. Hami Apps Users means Chunghwa s mobile buyers who utilize the Products and Services. 3. The Services means the software, content and digital materials distributed via the market Hami Apps. 4. The Mechanism means the process by which, after Hami Apps Users who purchase the Products or Services, the buying behavior shall be proved by credit cards or telecom bills authentication, Chunghwa or Credit Cards Company will charge Hami Apps Users for Products and Services distributed via the market Hami Apps. 5. Commission means the transaction fee that Chunghwa provides consignment services for Developers to be collected by sending payment notice, opening of the certificate and processing accounting services etc. Page3

6. Telecom Bill Payment means Chunghwa will issue bills to Hami Apps Users at the end of each of its applicable billing cycle for the Services provided on a monthly basis, this service details which will be incorporated into a completed monthly Telecom bills with other Chunghwa service details for each Hami Apps Users, the bills will be sent through mailing, Chunghwa will aggregate payment data for each bill write off. 7. Credit Card Payment means for the amount that the Hami Apps User pays for the Products and Services by credit card. Upon credit card authentication and the completion of transactions process by bank, the Chunghwa s System will request payment of the bills in accordance with banks regulation and aggregate records of such payment on a monthly basis. Article 5 Article 6 (Digital Products or Service Content) 1. Developer shall provide Chunghwa with the digital products or contents for Hami Apps Users use. 2. Upon the revision made to the Product items or Price setting, the Developer shall notify Chunghwa in writing, by fax or email in two (2) weeks before, such revision comes into force as Chunghwa agreed. 3. According to Market situation, Chunghwa would ask the Developers for making adjustments of the Product s price. (Parties Obligations) Chunghwa s Obligations : 1. Create and operate the marketplace and allow Hami Apps Users to purchase the Products and Services. 2. Establish the Product selling authentication webpage. 3. Provide Hami Apps Users entity s verification and authorization Page4

mechanism. 4. Provide monthly credit line check mechanism for each Hami Apps Users. 5. Operate Products billing tasks and place an entity or electronic vouchers. 6. Collect Products fees from the Hami Apps Users by means of credit card billing or telecom billing, and under this contract Chunghwa shall settle apportioned charges of sales price with Developers. Developer s Obligations : 1. Provide the Products necessary hardware, software, database and website contents, and being responsible for management, maintenance, updated version and renewal of website contents. 2. Follow Chunghwa provided specifications and packaged APIs, the uploaded Products has to be verified and tested by the Market before publishing at Hami Apps, unless prior approval by Chunghwa under Developer s business need. The Developer is solely responsible for (and that Chunghwa has no responsibility to the Developer for) any Product risk of lack applying this packaged APIs. 3. The Developer should undertake an obligation to monitor the Products, and provide legally suitable contents to the Hami Apps Users, if the Product contents violate or breach any applicable law, the Developer should make immediately substantial improvement under Chunghwa s notification. 4. In the event that Chunghwa became aware or Hami Apps Users Page5

reported the Products contents involved malpractice and violate applicable law, the Chunghwa has a right to stop selling and takedown the Product from the market Hami Apps. 5. If the Developer s Product embed the third party Ads, in which it should not interfere the device usage visual design and violate good morals, once the Ads mechanism caused Hami Apps Users unhappy, the Chunghwa would ask Developer for a deadline to improve or to stop selling. 6. The Developer shall well known the allowable sales regions or countries restriction of its Products contents, and define specifically at Chunghwa s market Hami Apps, the Developer agree that you are solely responsible for (and the Chunghwa has no responsibility to the Developer for) the infringement of Products selling at unauthorized regions or countries. 7. Support and participate Chunghwa with respect to the Products market promotion and advertisement. 8. State the service clearly at Web prominent location that the Products would be verified and charged by Chunghwa, and the payment receipt for the Hami Apps User is under the name of Chunghwa. 9. The website contents shall state Hami Apps User s rights and obligations, and charge details clearly and completely. 10. Establish the Customer Care Center in providing Telephone and email services, list service telephone number and e-mail address at relevant website, receive Hami Apps Users inquiries or complaints, be responsible for after-sales services, fix disputes and make improvements. Page6

11. Deal with Hami Apps Users allegation properly and promptly upon Chunghwa s notice, in which relates to Chunghwa coverage, the Developer should comply with Chunghwa handling and enhance customer satisfaction. 12. In the event of detecting Hami Apps Users abnormal or malicious usage, face to solve it actively and promptly, notify it immediately if there is a need to involve Chunghwa for solution. 13. An allegation of unauthorized use of Products, immediately notify and comply with Chunghwa s action. (1) Relate to the unauthorized use situation in which it could not be verified or recognized as a transaction of the Hami Apps User itself under Chunghwa detection, the Developer agrees with the refund and terminate the right of such transaction generated. (2) Relate to the unauthorized use situation, if the unauthorized user agrees to pay back the Products fees afterward, the Developer shall immediately notify Chunghwa, also Developer shall not accept any fees from the unauthorized user unless Chunghwa agrees to do so, otherwise Chunghwa has the right to collect punitive liquidated damages from the Developer in the amount equivalent to the hundred (100) times of the said fees. Article 7 (Type of Charges) The market Hami Apps type of charges list as follows : 1. By transaction: calculated based on each transaction spending in which a Hami Apps User purchased the Products or those functions under the said Products. 2. By days: calculated based on specific period of time as the unit Page7

charge basis, the Developer shall continue to provide the Products until the Hami Apps User stop the spending, meanwhile Chunghwa will provide billing notice as a reminder every payment cycle. Article 8 Article 9 (Charges) 1. The Developer may self set the price for its Products where the price shall under Chunghwa predefined payment limit. The Chunghwa will follow the agreed price to sell, any price change would be agreed mutually. 2. The Product charge shall not be higher than the similar service charge which is running at Developer relevant website or at Developer partner s relevant website. (Commission) 1. The Developer will follow Chunghwa provided monthly statement of account with the actual payment total (include sales tax) which was paid by Hami Apps Users for those relevant Products, the Developer shall pay to Chunghwa a commission at thirty percent (30%) ratio of the payment total per month. 2. Chunghwa will settle the actual payment total with Developers per month. 3. Chunghwa will provide A/P and A/R settlement list to Developers per month, both Chunghwa and Developers agree to the net payment by deducting the commission payable as the settlement per month. 4. Any dispute of the payment amount at the Account Balance Sheet, both Chunghwa and Developers agreed to count upon Chunghwa s records. Page8

5. In the event of Chunghwa s Hami Apps Users raised the dispute of the said payment, it would be verified to reverse the payment under the proper reason, Chunghwa has the right to deduct such amount at Chunghwa s sole discretion, then to settle the net payment for Developers. 6. Pursuant to the Taiwan Income Tax Act, any business whose headquarter office outside of Taiwan, a twenty percent (20%) income tax is required to be withheld on every sales payment. Chunghwa shall deduct twenty percent (20%) out of all payments to the Developer before paying the balance in US dollars, based on the prevailing exchange rate, into Developer s bank account. Article 10 (Confirmation on charging and billing) 1. Chunghwa will handle the billing and collecting process right after the mechanism of authentication and trading authorization have been successfully verified. 2. Chunghwa will document the completion records for payment process within twenty-one(21) days right after the mechanism of authentication and trading authorization have been successfully verified. 3. Any dispute relates to the billing and charges collecting which should prevail Chunghwa s records. Article 11 (Settlement and Payment) 1. No later than the 30 th day of each month (Holiday postponed), Chunghwa shall provide Developers the previous month statement of account receivable and payable. Where Developer has dispute about the settlement amount, in which the Developer shall notify Chunghwa for verification within ten (10) days thereof, Page9

if the difference should be incorporated into the next settlement. 2. Follow the aforesaid settlement list, and before the 15th day of the following month (Holiday postponed), each party shall open the entrusted document of the consignment or commission to the other party separately. 3. If the Developer is local company or legal entity (with unified registration number) which shall open triple styled invoice to Chunghwa. 4. If the Developer is a local individual who shall follow the settled amount to be divided by 1.05 and open a receipt before tax, and shall stick the four thousandths (0.004) stamp duty of the settled amount before tax on the said receipt, then Chunghwa shall withhold the income tax in accordance with the law and place the withholding voucher to the Developer. 5. If the company is outside of ROC, in which it shall follow the settled amount open a receipt or voucher to Chunghwa, then Chunghwa shall withhold the sales tax in accordance with the law and place the withholding voucher to the Developer. 6. Upon Chunghwa received the invoice receipt or voucher with verification, the payment amount will remit to Developer s specified bank account within forty-five(45) days. After notification, if Developer could not open the invoice receipt or voucher for the payment within the effective period (6 month since the date of notification), the Developer would be deemed a waiver of this payment. 7. The Developer acknowledges that Chunghwa would not return the impacted relevant fees which have paid Chunghwa in the event Page10

of any charges which is unable to collect from the said Hami Apps Users. 8. Each party shall name a person to act as its primary point of contact for the aforesaid settlement affairs. 9. After the termination of this Agreement, Chunghwa shall continue to settle any amount collecting from the Hami Apps Users and amount paying to the Developers until 6 months period expired. 10. In the event of the company outside ROC or individual Developers, the amount of settlement will be once every three (3) months, the actual net payment to be remitting in which is in accordance with that day s exchange rate. Article 12 (Marketing Activities) In the event of Chunghwa sells the Products in the market Hami Apps, you as the Developer grant to Chunghwa a nonexclusive and royalty free license to apply this Products to create web pages and related promotion materials with brand features of trade names, trade marks, logos or related brands features, for purposes of marketing the presence, distribution and sale of the Developer s product publicity in the market. Article 13 (Administration and Use of Hami Apps Users Information) 1. According to this Agreement and any applicable law, both Chunghwa and Developers agree to manage and use Hami Apps Users personal information of this market in a proper and appropriate way, and fulfill the duty of care of good administrator. 2. The Developer shall protect the privacy and legal rights of known Hami Apps Users personal information, unless otherwise provided by legal regulations or permitted by Hami Apps Users, Page11

the Developer shall not, whether it is in writing, orally or any other manner to collect, reproduce, transmit, disclose, inform, deliver, transfer, release, announce publicity, publish, or move to other uses etc, allow to intercept, download, pry into Hami Apps Users personal information. 3. With respect to the collection of Hami Apps Users information, the Developer, at appropriate web location, shall declare the Hami Apps Users aware clearly about the purpose of its information collection, the information name to be utilized and other possible specific purposes. Article 14 (Service Specification) The Developer is solely responsible for any Products you distribute through the market legally, and shall comply with the following terms, if Chunghwa found or claimed that you have breached one of the following terms, the Chunghwa has the right to terminate the Services immediately, and Developer shall not have objection or require for any compensation, if any damages was incurred onto Chunghwa, the Developer shall be liable to indemnify. 1. The Developer shall warrant that the Products are defect-free, also meet the security requirements. 2. The Developer shall not make exaggerated or false advertisements and marketing promotion for the products. 3. The Developer shall have obtained the relevant rights related to the Products contents in which shall warrant no infringement of the intellectual property right of any person or other rights thereof, and shall warrant no impact to the public order and good morals, and shall warrant no encourage criminal insult or attack others Page12

as the materials of the Products contents. 4. The Developer shall not provide any direct indirect or entire partial involved obscene gambling and its related trading behavior within every Products contents. 5. If the Products contents involved medical treatment pharmaceuticals health food or other related contents service which would require prior permission from competent authorities, the Developer shall obtain the prior permission of the competent authorities for the launch of the impacted Products in the market. 6. The Developer and its representatives employees appointees agents or other related users in which who shall not capture reproduce or apply for Chunghwa sold Hami Apps Users identity code and password. 7. The Developer shall make the Products available online within three (3) months after Agreement effective date. 8. The Developer shall not breach this Agreement and other applicable laws and regulations. Article 15 (Ownership of Intellectual Property Rights) 1. The Developers with its agreed parties own all intellectual property rights in and to the Products you distribute in the market, the Developers are solely responsible for (and that Chunghwa has no responsibility to you or to any third party for) any Products violates the intellectual property rights or any other rights of any third party, and for the consequences of your actions (including any loss or damage which Chunghwa may suffer) of any such breach. Page13

2. Where there is an infringement of the intellectual property rights or other rights with respect to the website contents and the Products which were provided by the Developer who shall be solely responsible for resolving such matters and hold harmless Chunghwa against any legal liabilities. 3. Upon this Agreement, one disclosing party may provide documents and information data etc to the other receiving party, the disclosing party owns the intellectual property right, without prior permission in written, the receiving party shall not reproduce modify it or convey other people to aware or utilize it; If any violation, the disclosing party has the rights to terminate this agreement, while the receiving part will be liable for damages. Article 16 (Use of Trademark) Except Chunghwa written permission, nothing in this agreement gives Developers a right to use Chunghwa s trade names, service marks, logos or other distinctive brand features, also it shall not engage in any activities under the guise of the name of Chunghwa or Chunghwa Telecoms outside the scope of this agreement; In the event that Developers violates the preceding terms, Chunghwa has a rights to notify Developers corrections within a period of time, and entitle to retrieve related promotional materials and other documentations, and Developers should indeed apply for the proper recovery actions, where Developers fail to implement the proper recovery actions within the foregoing periods, Chunghwa shall have the rights to do so for its own recovery actions and claim for the cost of compensation. Article 17 (Confidentiality) 1. Both parties agreed under this agreement to acknowledge all Page14

disclosed information (may include, without limitation, files diagrams statements computer data text data etc) and Hami Apps Users information to be treat as business confidentiality, should be kept strictly confidential, should never leak or deliver to a third party and should not be need for the benefit of himself or a third party; If as a result of leaks, deliver or misuse, in which shall indemnify (hold harmless of the other party) the loss of interests and bear the whole legal responsibilities. 2. Either party and its representatives employees appointed persons agents or other relevant users shall not be relieved from the obligations of keeping confidentiality, in which shall incur from any liabilities of the damages during the Agreement effective periods or for a period of two (2) years after the date of agreement expired or terminated; Any violation shall bear all legal responsibilities, unless the disclosed information was, in the public domain, all well known, or belong public property, at or subsequent to the time of disclosure. Article 18 (Infringement and Damage Prevention) In the event of Developer s conduct or any breach of Developer s obligations under this Agreement which would cause Chunghwa to be incurred by the request or litigation of any infringement or damage, in which the Developer shall be solely responsible for undertaking liabilities, also shall bear the burden of attorney s fees, litigation cost and all other relevant cost. Article 19 (Assignment and Amendment Prohibition) 1. Neither Party may allow to assign whole or partial of rights or obligations of this AGreement to another one without the other Page15

Party s prior written permission. 2. Neither Party may allow to amend or waive of the terms and conditions of this Agreement without the other Party s prior written permission. Article 20 (Agreement Termination and Effect) 1. Chunghwa may at any time terminate this Agreement, if; (1) Developers have breached any obligations of this Agreement. (2) The Developer merges, spins off or transfers the whole or essential part of its business or assets to other entity; Or accepts the transfer of another s whole business or assets, in which it would incur a great impact to the business operations during the Agreement effective periods. 2. During the Agreement effective periods, in the event that the Developer would be suffered by business dissolution, suspension, corporate restructure or liquidation, in which it is deemed to be Contract termination. 3. Based on the business or technique reason, Chunghwa is entitled to suspend or terminate this market services, provided that Chunghwa shall notice the Developers as earlier as three (3) months prior to the suspension or termination date. 4. If Chunghwa is notified or otherwise becomes aware and determines in its sole discretion that a product content or service violates the intellectual property rights or any other rights of any third party, Chunghwa has the right to ask the Developer to rectify or remove the product before the specified date, where the Developer fails to do so, Chunghwa is entitled to cease the online services according the seriousness and take proper action to its Page16

website link, or even terminate the Agreement 5. Based on the liability and obligation incurred by this Agreement, the termination or expiration of the Agreement shall not relieve the either party from any liability hereto prior to the date of the Agreement terminated or expired. 6. Pursuant to the violation of the provisions to the paragraph 2 of Article 17, the termination or expiration of the Agreement shall not preclude either party from bearing the damage compensation to the other party. 7. After the Agreement terminated or expired, the Developer shall be solely responsible for proper handling Hami Apps Users complaint of those purchased Developer s Products and shall be liable for the damage resulting Chunghwa. Article 21 (Notices) 1. As the need for business contact, either party shall provide the other party with the key responsible person name, applicable technology, customer services and agent name, business office location, contact phone numbers, fax numbers and e-mail addresses in relation to this Agreement, any modification, update it accordingly. 2. The Developer s input of the company relevant data, business contact information at Halink management platform which shall match it with the attached company proof of the content of the electronic files. Article 22 (Customer pay disputes Handling) 1. Chunghwa shall have the right to reduce the charges for the products with respect to which a Hami Apps User refuses to make Page17

payment thereof. Article 23 (Article title) 2. Where a Hami Apps User raises objections to the products charges after having paid for them and therefore requires a refund from Chunghwa, Chunghwa shall take appropriate discretion to do so. It shall then deduct a similar amount from the settlement amount with Developer during the following month. 3. All matters not covered herein shall follow the relevant laws and regulations, in which it shall take precedence over Chunghwa's rules and regulations. In the absence of any of the aforesaid, it shall reach the consensus between the parties. The use of the provision of the article titles are for the purpose of convenience and shall not to be considered in construing or interpreting all terms within this Agreement. Article 24 (Governing Law and Court of Jurisdiction) 1. This Agreement shall be governed by the laws of the Republic of China. 2. In the event of a dispute of conflict between the parties arising out of or in connection with this Agreement, the parties shall conduct good faith negotiations to try to resolve the issue. If the dispute has not been settled pursuant hereto, then either party may commence litigation in Taipei District Court which the parties hereby agree where shall have jurisdiction and shall be the court of first instance. Article 25 (Miscellaneous Provisions) 1. This Agreement shall supersede all prior oral and written understandings or agreements between the parties relating hereto. 2. This Agreement together with its Appendixes constitutes the entire Agreement. Page18

3. Not covered the terms of this Agreement matters, the Developer agrees to comply with relevant laws and Chunghwa s related business rules and regulations. 4. The Agreement referred to in writing which means the documents signed by any party legally authorized representative. 5. In the event that this Agreement is agreed upon shall be in writing, either party failing in this way which shall render this act invalid. 6. Developers acknowledge and agrees that Chunghwa may in its sole discretion, temporarily suspend the provisions of its platform services for the purpose of system maintenance or alteration, by giving prior notice to Developers. 7. Herein the Developer has read the content of this Agreement in details and agreed to check it, in which the Agreement will take effect after Chunghwa passes audit to adopt it and gives notice to the Developer. Page19