1.Definitions
1.1 “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with a person, where control may be by management authority, equity interest or otherwise, including but not limited to the companies listed in Appendix 1.
1.2 “Whale Eco” means the commercial and electronic eco system developed by Whale TV since 1st January , 2018, which unites the famous brands of smart device and content service providers to build a home digital entertainment system in order to enrich the content for smart devices and let the consumers have the friendly and creative experience at home. Whale Eco includes authorized applications from content service partners, cloud IT platform service from Whale TV, smart devices from manufactures.
1.3 “Smart Device Cooperation” means a program between hardware device manufacturers and Whale TV that incorporates Whale Eco’s cloud IT platform service into the hardware devices to offer consumer access to the authorized applications of Whale Eco.
1.4 “App Certification” means the full application testing provided by Whale TV on smart devices to guarantee the Partner Application can work well on the smart devices.
1.5 “Target Devices” means the smart devices under Smart Device Cooperation which pass App Certification.
1.6 "Content" means your Apps, all content, ads, services, technology, data and other digital materials included in or made available through your Apps or Devices, and all Product Information.
1.7 "Application" means software applications, games, and other digital products that you submit to us for sale, distribution, or promotion through the Program.
2.Purpose of Agreement
2.1 You agree to collaborate on a non-exclusive and free basis to license Your Application on Target Devices of Whale Eco in global during the Term.
2.2 Upon acceptance of licensing Your Application to Whale TV, Whale TV shall be entitled to launch Your Application on Target Devices. The logo shall present your own brand. Marketing channels shall include Whale TV promotion channels.
For the avoidance of ambiguity, this Article (Purpose of Agreement) shall be legally binding upon the Parties.
3.Term of License and Intellectual Property Rights
3.1 The territory of the license area shall be [worldwide] (the “Territory”).
3.2 The Parties have agreed to collaborate on below cooperation: Standalone application collaboration, including Android APK, Linux native app, HTML5 App and API (Deep Link Cooperation).
3.3 You are responsible to build the application, Whale TV is responsible to publish the application on Whale Eco as a standalone application.
3.4 Whale TV is entitled to employ deep link, also within the sub-pages of end user context in order to allow easy access to content for end user. Whale TV is entitled to use the following information: headings, meta data descriptions, images and graphic etc. in search functions, or as part of recommendation engines, and to integrate end user context within these functions.
4. Compliance with Laws; Privacy and Security Obligations
You and your Content must comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies ("Laws"). In addition, if you (or any third-party plug-in or service provider you use) have access to any name, password, other login information, or personally identifiable information or personal data of any end user based on any use of or interaction with your Content, you will (i) provide legally adequate privacy notices to such end user, (ii) obtain any necessary consent from the end user for the collection, use, transfer, and storage of the information, (iii) use and authorize others to access and use the information only for the purposes permitted by the end user, and (iv) ensure the information is collected, used, transferred, and stored in accordance with applicable privacy notice(s) and applicable Laws. If you suspect or become aware of any security vulnerability related to your Content or Devices that may adversely affect the Program or end users' use of or access to the Program, then you will immediately notify us and will take all appropriate steps to remedy such vulnerability, including cooperating with us.
5.Representations and Warranties
You represent, warrant and covenant that:
5.1 You are at least the legal age of majority and that you are able to form a legally binding contract. If Developer is a business or other legal entity and not an individual, then the individual entering into this Agreement on Developer's behalf represents that he or she has all necessary legal authority to bind Developer to this Agreement;
5.2 You have the full right, power, and authority to enter into and fully perform this Agreement;
5.3 Before providing us or any end user any Content, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement, and you will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such Content;
5.4 You represents and warrants to Whale TV that all and any part of any content of Your Application shall not infringe any applicable common laws or statutory rights of any third party, including but not limited to contractual rights, patents, copyrights, trade secret, right of publicity, or other intellectual property rights. You shall indemnify Whale TV from any action brought against Whale TV to the extent that it is based on a claim that Your Application, or the use of Your Application pursuant to this agreement, infringe any common law or statutory rights of any third party.
5.5 You agree with Whale TV’s current publishing rules in Appendix 2 relevant to managing of Your Application and its relevant amendments thereafter and will be checking the announcement of amendments from time to time.
5.6You shall take all corporate and other action required to authorize the execution, delivery and performance of this Agreement and the Agreement shall be binding upon and enforceable against it in accordance with its terms.
5.7EXCEPT AS OTHERWISE PROVIDED HEREIN, Whale TV’S LIABILITY UNDER THIS AGREEMENT IS ONLY DERIVED IF THE FAILURE OF PERFORMANCE IS PROVED TO BE ATTRIBUTABLE TO Whale TV AND IS LIMITED TO THE SUM AMOUNT OF THE CONTRACT FEE. Whale TV IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR DERIVATIVE DAMAGES OR LOSS OF INTERST OF REVENUE BEYOND THE RANGE PERMITTED BY APPLICABLE LAW.
6.Indemnity.
You will indemnify, defend and hold us (including any respective officers, directors, employees, contractors and assigns) harmless from and against any loss, expense, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) that arises from any third-party claim relating to any Content or any breach of your representations, warranties or obligations set forth in this Agreement (individually, a "Claim", and collectively, the "Claims"). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (but without limiting your indemnification obligations).
7.Confidentiality
You will: (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential; (b) use that information only to fulfill your obligations or exercise your rights under this Agreement; and (c) either destroy or return all such information to us promptly when the Agreement terminates (and, upon request, confirm such destruction in writing). This paragraph covers all confidential information regardless of when you receive it.
8.Disclaimers and Limitations of Liability
8.1 Whale TV does not undertake an obligation to monitor the Products or their content. If Whale TV becomes aware and determines in its sole discretion that a Product or any portion thereof (a) violates any applicable law; (b) violates this Agreement, as may be updated by Whale TV from time to time in its sole discretion;(c)creates liability for or has an adverse impact on Whale TV, then Whale TV may reject, remove, suspend, or reclassify the Product from Whale Partner Portal or from Devices. Whale TV reserves the right, at its sole discretion, to suspend and/or bar any Product and/or Developer from Whale Partner Portal or from Devices. If Your Product contains elements that could cause serious harm to user devices or data, Whale TV may at its discretion disable the Product or remove it from Devices on which it has been installed.
8.2 THE PROGRAM AND ANY PROGRAM MATERIALS ARE PROVIDED "AS IS." WE AND OUR LICENSORS WILL IN NO EVENT BE LIABLE FOR ANY UNAVAILABILITY OR MALFUNCTION OF ALL OR ANY PORTION OF THE PROGRAM OR PROGRAM MATERIALS, LOSS OF DATA OR CONTENT, LOSS OF PROFITS OR GOODWILL, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO THE PROGRAM MATERIALS AND ALL OTHER SERVICES, SOFTWARE, CONTENT, OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY END USER TO COMPLY WITH ANY TERMS OF USE REGARDING THE PROGRAM OR OTHERWISE. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PROGRAM EXCEED $100. HOWEVER, THIS DOES NOT LIMIT OUR OBLIGATION TO PAY ROYALTIES DUE AND PAYABLE TO YOU UNDER THIS AGREEMENT. THESE LIMITATIONS AND DISCLAIMERS APPLY EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.Term and Termination
9.1 You agree that contract will be valid when you choose to accept it.
9.2 The term of the license shall be permanent starting from the Agreement Date (the “Term”), unless You or Whale TV gives ninety (90) days' prior written notice to the other party.
9.3 Either Party may at in its sole discretion terminate this Agreement with thirty (30) days prior written notice at any time in the event the other Party materially and adversely breaches or fails to comply with or perform any of the terms of this Agreement and fails to remedy or rectify such breach, non-compliance or non-performance within thirty (30) days following receipt of written notice from the other Party specifying such breach.
10.Force Majeure
10.1 "Force Majeure” shall mean all events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by either of the Parties. Such events shall include without limitation earthquakes, typhoons, flood, fire, war, strikes, riots, acts of governments, changes in law or the application thereof or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general international commercial practice.
10.2 If an event of Force Majeure occurs, a Party's contractual obligations affected by such an event under this Agreement shall be suspended during the period of delay caused by the Force Majeure and shall be automatically extended, without penalty or liability, for a period equal to such suspension.
10.3 The party claiming Force Majeure shall promptly inform the other Parties in writing and shall furnish within thirty (30) days thereafter sufficient proof of the occurrence and duration of such Force Majeure. The Party claiming Force Majeure shall also use all reasonable endeavors to terminate the Force Majeure.
10.4 In the event of Force Majeure, the Parties shall immediately consult with each other in order to find an equitable solution and shall use all reasonable endeavors to minimize the consequences of such Force Majeure.
11. Amendment
Whale TV reserves the right, at its discretion, to modify this Agreement, including any rules and policies at any time. You will receive a notice of such modification with the request to accept the change to the agreement. However, it is your responsibility to review and become familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) (“Additional Terms”) before you accept them. After your acceptance the Additional Terms shall be considered incorporated into this Agreement.
12.General legal provisions
12.1 This Agreement, including any addenda You may have agreed to separately, constitutes the entire legal agreement between You and Whale TV. The English language version of this Agreement will control and translations, if any, are non-binding and for reference only.
12.2 If any court of law having the jurisdiction to decide on this matter rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
12.3 Your Application may be subject to Europe and other jurisdictions export laws and regulations. You agree to comply with all domestic and international export laws and regulations that apply to your distribution or use of products. These laws include restrictions on destinations, users, and end use.
12.4 You agree that this agreement shall be governed by the laws of the People's Republic of China without regard to the applicable principles of conflict of laws.
12.5 In the event of a change in your control, Whale TV may, at its option, immediately terminate this Agreement.
12.6 All claims arising out of or relating to this Agreement or Your relationship with Whale TV under this Agreement will be governed by the laws of the People's Republic of China, without regard to its conflict of laws provisions. All disputes arising from or in connection with this contract shall be submitted to Beijing Arbitration Commission for arbitration in accordance with its rules of arbitration in effect at the time of applying for arbitration. The seat of arbitration shall be Beijing. The arbitral award is final and binding upon both parties.