Terms and Conditions of Build My Own – With Tech Support!
Terms of Service (Agreement) Individual or entity name identified as the Publisher for this DMBC MyAppBuilder.com Publisher Account ("Publisher") DMBC dba MyAppBuilder.com, operates a wholesale and retail distribution service for the storage, sale, and delivery of copyright protected electronic publications (“iPhone/iPod Apps”) and other materials (“Digital Content”); and, Publisher, representing itself, the rights of the Author or other rights holders, desires that DMBC and its affiliate companies provide wholesale, retail sale and distribution of Publisher’s digital content through its network of MyAppBuilder.com Retailers. In consideration of the foregoing the parties agree as follows. 1.A. Publisher Account Services. Upon acceptance of this Agreement, DMBC shall establish an MyAppBuilder.com Publisher Account in the name of the Publisher. Publisher shall be granted access to Publisher’s MyAppBuilder.com Account through a password protected web portal. Publisher shall be permitted to upload and manage iPhone/iPod Apps and Digital Content (collectively, "Inventory") through the MyAppBuilder.com System; set and adjust the suggested retail price of its iPhone/iPod App titles, and manage marketing data associated with each product. Publisher will have access to review any and all sales transaction activity of Publisher’s iPhone/iPod Apps that have been sold through MyAppBuilder.com. 1.B. Wholesale Price : Publisher shall set the Digital List Price for each iPhone/iPod App. The Wholesale Price is 70% of the Digital List Price. When VAT or any other sales tax is applicable on the Digital List Price, the Wholesale Price is 70% of the Digital List Price exclusive of VAT and all taxes 1.C. Right to Inventory. Except as otherwise set forth in this Agreement, DMBC acknowledges that all right, title and interest in and to the ownership of all intellectual property including copyrights and trademarks used in connection with the Inventory are the property of Publisher, or its licensor and licenses and in no event, including the termination of this Agreement shall DMBC obtain any right or interest in such intellectual property or copyrights. 1.D. Rights and Services. Publisher hereby grants DMBC the rights to reproduce, convert, display, market, and store digital versions of Publisher’s Inventory on one or more computer facilities of or under the leased or similar control of DMBC, on a worldwide basis, and to resell its Inventory directly to consumers and to Retailers for resale to consumers. To promote sales for Publisher’s inventory, Publisher grants DMBC the right to freely distribute all marketing data including cover art, excerpts, review information and all other metadata associated with Publisher’s Inventory. Automatic generated samples of every iPhone/iPod App containing no more than 5% of the iPhone/iPod App content may be distributed as marketing material. To assist DMBC in promoting Publishers’ Inventory, Publisher authorizes DMBC to download a limited number of DRM protected copies of each title to evaluate and review for marketing opportunities for internal use only. In the event of a sale of Publisher’s Digital Content, MyAppBuilder.com will apply commercially reasonable Digital Rights Management (DRM) services to the product. Publisher acknowledges that DMBC relies upon third party DRM technology, Internet and Web transmissions and connectivity, and hardware devices to apply and deliver products using DRM, all of which may contain errors, be subject to piracy or attempts to circumvent, and subject to other interruptions of intended service. DMBC shall use commercially reasonable efforts to provide the services of MyAppBuilder.com and the presence of such errors or interruptions of service shall not be a breach of this provision. DMBC’s sole obligation with regard to such errors shall be to use commercially reasonable efforts to correct such errors. Publisher hereby acknowledges and agrees that DMBC has sole discretion with respect to the terms and features of its wholesale and retail sales and distribution, pricing, marketing and promotion of Publisher’s Inventory. Publisher shall select the appropriate categories to list its iPhone/iPod Apps in MyAppBuilder.com’s catalog and provide metadata and other marketing data. DMBC and Publisher agree to use commercially reasonable efforts to keep the MyAppBuilder.com Inventory and marketing data free from materials that are illegal, infringe on rights of third parties, are obscene, or may, in the sole determination of DMBC, expose DMBC, MyAppBuilder.com and its affiliates or suppliers to civil or criminal claims of any nature. DMBC reserves the sole right to immediately remove, without notice and in DMBC’s sole discretion, any and all iPhone/iPod Apps, cover art, marketing or metadata or any other data DMBC solely determines may violate any law, infringe upon any third parties rights, are obscene or otherwise objectionable. Publisher agrees that DMBC may sublicense and/or assign its rights and obligations under this agreement, in whole or in part, to its Affiliates (meaning those entities that DMBC controls, is controlled by, or is under common control with), and may permit its independent contractors to exercise the rights granted to DMBC in this Agreement (“Rights”). DMBC (by itself, by its Affiliates, or through its independent contractors) may also exercise the Rights (1) as mere technological incidents to and for the limited purpose of technically enabling the Rights, such as caching to enable display, and (2) as reasonably necessary for DMBC to sell and distribute Publisher’s iPhone/iPod Apps. 1.E. Inventory Pricing. Publisher shall be permitted at any time to modify the Digital List Price of its Inventory, as well as to remove any titles or associated marketing data from MyAppBuilder.com. Should Publisher either increase the price of a listed title in Inventory or remove it, such change will be effective ten (10) days following such changes or removal of a title. Publisher acknowledges that MyAppBuilder.com Retailers will be basing their digital content catalogs on the information supplied by Publisher. 2. Payment and Statement. For Publisher Inventory sold through MyAppBuilder.com or DMBC, DMBC will pay Publisher the Wholesale Price for such products sold, net of refunds and bad debt, within thirty days of the end of every calendar quarter : March 31st, June 30th, September 30th and December 31st. DMBC will make payment in US or Euro funds for the amounts due Publisher and furnish Publisher with a statement in electronic format showing the number of copies of each product sold listed by title, author, and ISBN. DMBC reserves the right to hold the payment of royalties until the amount due is more than $150 US or 150 Euro. Any and all payments to Publisher hereunder are exclusive of all sales, use, value added and similar taxes. DMBC reserves the right to net any applicable withholding taxes from its payments to Publisher hereunder. Applicable VAT will be computed based on the VAT exclusive Wholesale Price as determined under Section 1.B. If Publisher is required by law or by administration thereof to collect any sales, use, value added or similar taxes from DMBC, DMBC will pay such taxes to Publisher provided that Publisher first issues to DMBC valid tax invoices in support of any such taxes to be collected from DMBC. Royalties paid to the Publisher by DMBC are based upoun the Wholesale Pricing, all agreements either written or verbal will reflect Royalties based upound Wholesale Pricing. 2A. Setup and Processing Fee. Each Application published by DMBC for the PUBLISHER is subject to a one time $20 set up and processing fee per platform (e.g. Apple iPhone, RIM Blackberry) per Application. 2B. Monthly Billing. Members agree to have a monthly recurring charge of $29 taken automatically from their credit/debit cart,bank account on monthly basis 2C.Cancelation: members can send written request to cancell membership MyAppBuilder.com to firstname.lastname@example.org please include name on card as well as last 4 numbers of card on file. Membership is is subject to cancellation for non-payment. 3. No Exclusivity. This Agreement is not exclusive and does not impose any obligation or restrictions on either party with respect to competing business relationships or opportunities. 4. Warranties by Publisher. Publisher warrants and represents that (a) Publisher has the full power, right and authority to enter into this Agreement; (b) Publisher has not previously and will not grant any rights to any third party that are inconsistent with the rights granted herein; (c) Inventory provided by Publisher and any other material are (i) either owned or licensed by Publisher, and (ii) do not and will not infringe any copyright, patent, trade secret, or other proprietary right held by any third party; (d) Publisher will not knowingly provide or knowingly permit the provision of data, images or programs to DMBC that would violate the proprietary rights of others, including unauthorized copyrighted text, images, programs or materials used in an infringing fashion; and (e) the product or associated marketing data supplied do not contain mater which is libelous, slanderous, an invasion of privacy, unlawful appropriation of name, and likeness, defamation of character. 5. Warranties by DMBC. DMBC warrants and represents, solely for Publisher’s benefit, that DMBC has the full power, right and authority to enter into this Agreement. 6. WARRANTY DISCLAIMERS AND LIABILITY LIMITATION. ALL SERVICES AND PRODUCTS PROVIDED BY DMBC, ITS AFFILIATES AND SUPPLIERS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, DMBC, ITS AFFILIATES AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO PUBLISHER’S USE OF MyAppBuilder.com. EXCEPT FOR INTENTIONAL BREACH OR GROSS NEGLIGENCE, DMBC WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF DMBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL PROGRAM FEE PAYMENTS PAID OR PAYABLE TO PUBLISHER UNDER THIS AGREEMENT. 7. Indemnification. Either party (the "indemnifying party") will, at its own expense, defend any third party claim or action brought against the other party (the "indemnified party"), and its Affiliates or Suppliers, for any claim that, as alleged, would represent a breach of any warranty or representation made by the indemnifying party hereunder. The indemnifying party will indemnify and hold harmless the indemnified party from and against any claims and damages finally awarded against the indemnified party or agreed pursuant to a settlement in accordance with the requirements of this, and any costs and fees (including without limitation, attorneys’ fees) reasonably incurred by the indemnified party that are attributable to such a claim. The indemnifying party will not be responsible for any settlement made by the indemnified party without the indemnifying party’s written permission, which permission will not be unreasonably withheld. The indemnified party will (i) provide the indemnifying party reasonably prompt Notice of any such claim or action and permit the indemnifying party to answer and defend such claim or action; and (ii) provide the indemnifying party with such information, assistance and authority, at the indemnified party’s expense, as may be necessary or appropriate to enable the indemnifying party to defend such claim or action. The indemnified party has the right, at its expense, to employ separate counsel and participate in the defense of any claim or action that the indemnifying party is defending. 8. Termination. Either party may terminate this Agreement without cause upon not less than ninety (90) days notice to the other party. Any termination of this Agreement or withdrawal by Publisher of specific Inventory or other materials will be prospective, with respect to future sales only. After termination of this Agreement or withdrawal of specific Publisher Inventory, DMBC may continue to maintain master copies of such Inventory in order to provide online access and replacement downloads of such inventory to customers who purchased it prior to termination. 9. Survival. Sections 2, 3, 4, 5, 6, 7, 10, 11, and 12 will survive Termination of this Agreement. 10. Governing Law; Venue; Attorneys Fees. This Agreement will be construed and controlled by the laws of UTAH USA, and each party further consents to jurisdiction by the courts sitting in UTAH. 11. Arbitration. Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or Publisher’s relationship with DMBC shall be submitted to confidential arbitration in UTAH, except that, to the extent (1) Publisher has in any manner violated or threatened to violate DMBC’s intellectual property rights, or (2) DMBC seeks indemnification from Publisher under this Agreement, DMBC may seek injunctive or other appropriate relief in any court sitting in UTAH (and Publisher consents to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this Agreement shall be conducted under the rules then prevailing of the Rules of Arbitration of the International Chamber of Commerce in UTAH. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. 12. Expenses. All costs incurred by either party in fulfilling any of its obligations under this Agreement will be borne by such party, without reimbursement from the other party. 13. Entire Agreement. This Agreement constitutes the entire agreement between DMBC and Publisher with respect to the subject matter hereof and supersedes all prior and contemporaneous communications. This Agreement may not be modified or amended except by an instrument accepted by both parties. Wholesale Royalty percentage paid to Publisher: 57% CONTRACT WILL GO INTO EFFECT ONCE YOU SUCCESSFULLY SIGN UP FOR MONTHLY SUBSCRIPTION
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