This Smart Apps Partner Agreement ("Agreement") between you and Smart Communications, Inc. ("SMART") provides the terms and conditions in relation to your use of the Smart Apps to distribute Contents (as defined hereinafter). It is important that you take the time to read them carefully. In order to use the Smart Apps to distribute Contents, you must first agree to this Agreement by clicking to accept or agree to this Agreement when registering as a Partner.
Definition of Terms
|Content/s||means software, applications, games, and other digital materials distributed via the Smart Apps.|
|Device||means any device that can access the Smart Apps, whether it is a computer, tablet, or mobile phone.|
|Smart Apps||means the portal which allows registered Partners to distribute Contents directly to users of Devices whether through SMART's network.|
|Partner/You||means any person of legal age or company who is approved by SMART to distribute Contents on the Smart Apps in accordance with the terms of this Agreement.|
|Partner Account||means a publishing account issued to Partners that enables the distribution of Contents via the Smart Apps.|
|Revenue Share||means the monetary share of the Partner derived from the sale of their Content. The Partner's share shall be set at Seventy Percent (70%) in favor of the Partner per price point unless amended by SMART with the Partner in a separate written agreement. Revenue sharing shall not be applicable to free Contents. SMART may, at any time, change the Revenue Share of the Partner with prior notice via electronic mail.|
|Settlement Process||means the process in which the Partner receives payment of their revenue share for the total successful billed and deducted hits count from SMART for all its sold content on the Smart Apps for a period of thirty (30) days.|
|SMART||means a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, with its office address at the Smart Tower Building, 6799 Ayala Avenue, Makati City.|
You must acquire and maintain a valid Partner Account to distribute Contents on the Smart Apps. All Contents submitted to the Smart Apps shall be screened and approved by SMART prior to publishing (refer to Smart Apps Publishing Guidelines for rules applicable to content approval for publishing on the Smart Apps).
If you are an individual, you confirm that you are of legal age. If you are acting on behalf of your employer or another entity, you confirm that you have full legal authority to bind your employer or such entity to this Agreement, otherwise, you may not use the Smart Apps.
This Agreement covers Contents that you choose to distribute for free and Contents you charge a fee. In order to charge a fee for your Contents, you must meet SMART's requirements for settlement as follows:
are of Legal age
must have a valid Tax Identification Number (TIN)
must possess any valid ID
Certificate of Registration (COR)
Sample Sales Invoice
Tax Residency Certificate
You may set the price for your Contents in the price points permitted by SMART.
SMART may opt to promote your Content at anytime and may request for pricing changes on your Content for your approval. If you do not wish to participate in the promotions, you will be given the option to take down your Contents within a specified period prior to promotions.
If you choose to distribute Contents for free, you will not receive any Revenue Share for the sale of such unless agreed with SMART in a separate written agreement via electronic mail. You agree not to charge the user fees of any kind for the download and use of the Contents. This shall not apply to the following
trial versions of the Contents with the option to purchase the full version of the Content;
in-app purchases" or the purchase of certain items within the Content; or
"pay-per-level" or the payment for the option to unlock certain levels of the Content.
Should SMART be required to refund to the users any amount resulting from a complaint found in any of the Partner's Contents, the said amount shall be deducted from the amount to be settled to you. The nature of complaints to be covered by refunds include, but are not limited to, the following:
any malfunctioning Content;
any Content that is different from its description as posted by the Partner that misleads the user from the nature of the Content as published in the Smart Apps;
any Content that is not compatible with, or cannot be installed into, the user's Device whereas its details or credentials claim otherwise;
the Content has caused or is causing software or hardware problems due to spyware, malware or any virus originating from the downloaded Content; and
any Content that is not compliant with SMART's Smart Apps Publishing Guidelines.
Settlement for collection of payments shall be done after a period of thirty (30) days and shall be based on the number of the reflected billed and deducted hits of the Partner's Content/s on SMART's Network.
Upon receipt of payment from SMART, Partner shall submit an Official Receipt or send an email to acknowledge payment.
The fees paid or payable by SMART to Partner pursuant to this Agreement shall be inclusive of all Philippine taxes. The Value Added Tax (VAT), if any, shall be for the account of SMART, provided that the Partner submits its VAT registration certificate upon request for payment and issues duly-registered VAT official receipt upon receipt of payment.
In the event that SMART will be required to withhold tax and remit the same to tax authorities, SMART shall deduct the said tax from payments in relation to this Agreement. SMART shall furnish the Partner with the corresponding certificate of withholding tax within twenty (20) days after the end of each quarter. If the Partner is entitled to exemption from such withholding tax on any amount payable to them in relation to this Agreement, the Partner shall submit such certifications or documents as may be required in order to effect such exemption.
Partner shall provide SMART all related tax documents such as Tax Exemption Certificate upon the signing this Agreement. SMART shall only implement such tax exemption upon receipt of the said documents.
License for Contents
You grant to SMART and its affiliates a nonexclusive, perpetual, and royalty-free license to: copy, perform, display, and use the Contents for administrative and demonstration purposes in connection with the operation and marketing of the Smart Apps.
You grant to SMART and its affiliates a nonexclusive, and royalty-free license to distribute the Contents according to the publishing options selected by you on the Smart Apps.
SMART may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this agreement, provided that such consultants and contractors will be subject to the same obligations as SMART. After termination of this Agreement, SMART will not distribute your Content, but may retain and use copies of the Content for support of the Smart Apps.
You grant to the user a non-exclusive, and perpetual license to perform, display, and use the Content on the Device.
You represent and warrant that you have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Content. If You use third-party materials, You represent and warrant that you have the right to distribute the third-party material in the Content. You agree that You will not submit material to the Smart Apps that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to submit the material.
Use of the Smart Apps by You
Except for the license rights granted by you in Section 5 below, SMART agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of Contents, including any intellectual property rights which subsist in those applications.
You agree to use the Smart Apps only for purposes that are permitted by (a) this Agreement (including the Smart Apps Guidelines) and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the Philippines or other relevant countries).
You agree that you are solely responsible for (and that SMART has no responsibility to you or to any third party for) any Contents you distribute through the Smart Apps and for the consequences of your actions (including any loss or damage which SMART may suffer) by doing so.
You agree that you are solely responsible for (and that SMART has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which SMART or any third party may suffer) of any such breach.
The Smart Apps will allow you to protect your Contents so that users may not share Contents with other users or devices.
Marketing Your Content. You will be responsible for uploading your Contents to the Smart Apps, providing required Content information to users, and accurately disclosing the security permissions necessary for the Content to function on user Devices. Contents that are not properly uploaded will not be published in the Smart Apps.
Restricted Content. Any Content you distribute on the Smart Apps must adhere to the Smart Apps Guidelines.
Brand Features and Publicity
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each Party, respectively, as owned (or licensed) by such party from time to time.
Each Party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Brand Features. Except to the limited extent expressly provided in this Agreement, neither party grants, nor shall the other party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the other party. Subject to the terms and conditions of this Agreement, Partner grants to SMART and its affiliates a limited, non-exclusive license during the term of this Agreement to display Partner Brand Features, submitted by the Partner to SMART, for use solely online or on mobile devices and in either case solely in connection with the distribution and sale of Partner's Content through the Smart Apps, or to otherwise fulfill its obligations under this Agreement. If the Partner discontinues the distribution of specific Contents on the Smart Apps, SMART will cease use of the discontinued Contents' Brand Features pursuant to this Section 6.2, except as necessary to allow SMART to effectuate Section 3.6. Nothing in this Agreement gives Partner a right to use any of SMART's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features unless allowed for use by SMART in a separate written agreement signed by both parties.
Publicity and Promotion. In addition to the license granted in Section E, for purposes of Smart Appsing the presence, distribution and sale of the Partner's Content in the Smart Apps, SMART and its affiliates may include Partner Brand Features, submitted by the Partner to SMART: (i) within the Smart Apps and in any SMART-owned online or mobile properties; (ii) in online or mobile communications outside the Smart Apps when mentioned along with other Smart Apps Contents; (iii) when making announcements of the availability of the Content online or on mobile devices; (iv) in presentations; and (v) in customer lists which appear either online or on mobile devices . If Partner discontinues the distribution of specific Contents on the Smart Apps, SMART will cease use of the discontinued Contents' Brand Features for such Smart Appsing purposes. Partner may be informed either by a written document or via email of SMART's intent to promote their Content and SMART may at any time for and during the promotion, change the pricing of the Partner's Content without their consent. Should the Partner remove the promoted Content during the promotion period for any reason that is not stated in section H of this agreement, SMART may file a civil complaint and/or liquidate damages from the Partner. SMART grants to the Partner a limited, non-exclusive, worldwide, royalty-free license to use the SMART Brand Features for the term of this Agreement solely for Smart Appsing purposes and only in accordance with the Android Brand Guidelines).
Your Takedowns. You may remove your Contents from the Smart Apps at any time, in compliance with this Agreement and the Smart Apps Publishing Guidelines. Removing your Contents from future distribution via the Smart Apps should not affect the subscribers who have previously purchased or downloaded your Contents which include pertinent information which may have been stored in Devices or any part of the Smart Apps. Removal of your own Contents also does not relieve you of the obligation to support the subscribers who previously purchased and downloaded Contents.
You also agree to inform SMART of your removal of Contents at least two (2) days prior to take down via electronic mail or written notice. The notice must include your reasons for removal of the Content especially if the removal was due to the following cases:
The Content you were distributing has been accused of infringement or has infringed the copyright, trademark, brand name, patent or other intellectual property right of any person or corporation.
The Content you were distributing violated, has defamed or has been accused of defamation on the copyright, trademark, brand name, patent or other intellectual property right of any person or corporation.
The Content you were distributing does not comply with applicable law or has violated any government issued regulations.
SMART Takedowns. While SMART does not undertake an obligation to monitor the Contents or their content, if SMART is notified by you or otherwise becomes aware and determines in its sole discretion that a Content or any portion thereof or your Brand Features; (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates SMART's hosting policies or other terms of service as may be updated by SMART from time to time in its sole discretion; (d) is being distributed by you improperly; (e) may create liability for SMART; (f) is deemed by SMART to have a virus or is deemed to be malware, spyware or have an adverse impact on SMART's network; (g) violates the terms of this Agreement or the Smart Apps Guidelines; or (h) the display of the Content is impacting the integrity of SMART servers (i.e., users are unable to access such content or otherwise experience difficulty), SMART may remove the Content from the Smart Apps or reclassify the Content at its sole discretion. SMART reserves the right to suspend and/or bar any Partner from the Smart Apps at its sole discretion.
In the event that your Content is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third party's right of publicity or privacy, or does not comply with applicable law, and an end user purchased such Content within a year before the date of takedown,: (i) you must refund to SMART, all amounts received, plus any associated fees ,and (ii) SMART may, at its sole discretion, withhold from your future sales the amount in subsection (i) above.
Your Partner Credentials
You agree that you are responsible for maintaining the confidentiality of any Partner credentials that may be issued to you by SMART or which you may choose yourself and that you will be solely responsible for all applications that are developed under your Partner credentials. SMART may limit the number of Content Provider / Partner Accounts issued to you or to the company or organization you work for.
Terminating this Agreement
This Agreement will continue to apply until terminated by either you or SMART as set out below.
If you want to terminate this Agreement, you must provide SMART with thirty (30) days prior written notice (unless this Agreement terminates under Section 13.1) and cease your use of any relevant Partner credentials.
SMART may at any time, terminate this Agreement with you if:
you have breached any provision of this Agreement; or
SMART is required to do so by law; or
you cease being an authorized Partner; or
SMART decides to no longer make the Smart Apps Available.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE Smart Apps IS AT YOUR SOLE RISK AND THAT THE Smart Apps IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
YOUR USE OF THE Smart Apps AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE Smart Apps IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
SMART FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SMART, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT SMART OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
SMART SHALL NOT BE HELD LIABLE FOR ANY CONSEQUENTIAL AND INCIDENTAL DAMAGES ARISING FROM YOUR USE OF THE Smart Apps OR THE USE AND MISUSE OF SMART SUBSCRIBERS OF ANY CONTENT YOU HAVE SOLD AND/OR MADE AVAILABLE IN THE Smart Apps.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless SMART, 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 (a) your use of the Smart Apps in violation of this Agreement, and (b) your Content that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless SMART and its affiliates, 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 taxes related to Your distribution of Contents distributed via the Smart Apps.
Changes to this Agreement
SMART may make changes to this Agreement at any time by sending the Partner notice by email describing the modifications made. SMART may also post a notification on the Smart Apps Site or SMART Corporate Site describing the modifications made. The changes will become effective, and will be deemed accepted by Partner, (a) immediately for those who become Partners after the notification is posted, or (b) for pre-existing Partners, the modified Agreement will become effective upon the Partner's acceptance of the modified Agreement (except changes required by law which will be effective immediately). Pre-existing Partners will show their acceptance of the modified Agreement by accepting the modified Agreement either by clicking as posted on the site, by signing a written addendum to this agreement or acknowledgement via email. In the event that the Partner does not agree with the modifications to the Agreement within thirty (30) days after the date the email is sent, then SMART will not settle to the Partner any payments for the purchase of all their Contents on the Smart Apps until the Partner agrees to the modified Agreement. In the event that You do not agree with the modifications within ninety (90) days after the date the email is sent, then You must terminate your use of the Smart Apps, which will be your sole and exclusive remedy.
Any requests for changes in this agreement must be sent to SMART via electronic mail for approval. If approved, the separate agreement shall be considered as an annex to this agreement.
General Legal Terms
This Agreement constitutes the whole legal agreement between you and SMART and governs your use of the Smart Apps, and completely replaces any prior agreements between you and SMART in relation to the Smart Apps.
You agree that if SMART does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which SMART has the benefit of under any applicable law), this will not be taken to be a formal waiver of SMART's rights and that those rights or remedies will still be available to SMART.
You acknowledge and agree that each member of the group of companies of which SMART is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this Agreement.
The rights granted in this Agreement may not be assigned or transferred by either you or SMART without the prior written approval of the other party. Neither you nor SMART shall be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other party.
This Agreement, and your relationship with SMART under this Agreement, shall be governed by the laws of the Philippines without regard to its conflict of laws provisions. You and SMART agree to submit to the exclusive jurisdiction of the courts located within the Philippines to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that SMART shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.