Code Capsules License and Distribution Agreement for the CodeCaps Marketplace / CapStore
This CodeCaps License and Distribution Agreement for the CodeCaps Marketplace (the "Agreement") is entered into and made effective as of the day CapStore Developer accepts this Agreement as provided below (the "Effective Date"), by and between the Code Capsules entity set forth in Section 11.9 (together with its Affiliates, "CodeCaps"), and you ("You" or "CapStore Developer").
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING PROVIDER’S ACCEPTANCE OR OTHERWISE ELECTRONICALLY INDICATING ACCEPTANCE, CAPSTORE DEVELOPER AGREES TO THE TERMS OF THE AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. CODECAPS AND CAPSTORE DEVELOPER ARE EACH A "PARTY" AND COLLECTIVELY THE "PARTIES" TO THIS AGREEMENT.
CAPSTORE DEVELOPER MAY NOT ACCESS OR USE THE PARTNER PORTAL, THE API, THE CODECAPS MARKETPLACE OR OFFER ITS CAPSTORE DEVELOPER SERVICE THROUGH THE CODECAPS MARKETPLACE IF CAPSTORE DEVELOPER (i) DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, OR (ii) IS OR BECOMES (IN WHOLE OR IN PART) A DIRECT COMPETITOR OF CODECAPS EXCEPT WITH CODECAPS’S PRIOR WRITTEN CONSENT. FURTHER, CAPSTORE DEVELOPER MAY NOT ACCESS THE PARTNER PORTAL OR OTHERWISE UTILIZE THE CODECAPS SERVICE FOR PURPOSES OF MONITORING CODECAPS OR ITS SERVICES, THEIR PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
This Agreement was last updated on January 29, 2022.
For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
Add-on means a Non-CodeCaps Application that interoperates with the CodeCaps Service and is detailed in the Manifest, CapStore Developer Price, and any accompanying User Materials submitted via the Developer Portal.
Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
API means the CodeCapsules application program interface(s) provided via the Developer Portal through which the Add-on interoperates with the CodeCaps Service.
Beta Services means CodeCaps services or functionality that may be made available to Customer to try at Customer's option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
Buildpack means a Non-CodeCaps Application that interoperates with the CodeCaps Service, or is distributed via the CodeCaps Marketplace platform and may consist of a set of open-source scripts that are used for compiling apps, and automating build processes.
Marketplace Capsule means a Non-CodeCaps Application that interoperates with the CodeCaps Service or is distributed via the CodeCaps Marketplace and provides one-click provisioning functionality.
Content means information obtained by CodeCaps from publicly available sources or its third party content providers and made available to any User or CapStore Developer through the CodeCaps Service or Beta Services, as more fully described in the Documentation.
Customer means an individual or entity (including its Affiliates) that has entered into a Master Subscription Agreement with CodeCaps (or its Affiliates) and one or more Order Form(s) (or on-line orders) for the CodeCaps Service.
Customer Data means electronic data and information submitted by or for a Customer to the Services which are accessible to the Customer while resident on CodeCaps's systems, including through the CodeCaps Marketplace excluding Content and Non-CodeCaps Applications.
Documentation means the CodeCaps Service's documentation, and its usage guides and policies, as updated from time to time, accessible via [insert URL] or login to the CodeCaps Service.
CapStore Content or CodeCaps Marketplace Content means information (including, without limitation, data files, application, written text, computer software, music, audio files or other sounds, photographs, videos or other images) obtained by CapStore Developer from publicly available sources or its third party content providers and made available to Customer through the CapStore Developer Service. CodeCaps Marketplace Content exclude web application(s) or source code developed or written by Customer or Users of the CodeCaps Services (collectively, Application(s)).
CapStore Developer Documentation means the technical documentation, usage guides and policies for the CodeCaps Marketplace, as updated from time to time, accessible via [insert URL]. For clarity, the CodeCapsules CapStore Developer Documentation excludes CapStore Developer Service(s), User Materials or any other information provided by or on behalf of CapStore Developer or pertaining to a specific CapStore Developer Service.
CodeCaps Marketplace means an online directory, catalog or marketplace of applications, including Our repository / warchest of reusable code and API(s) that either stand alone and are distributed through the CodeCaps Marketplace or interoperate with the CodeCaps Services, including, for example, https://codecapsules.io/marketplace, and any successor websites.
CodeCaps Interface means the terminal or the web interfaces provided by CodeCaps to Customers and Users to view and manage Applications and CodeCaps Marketplace. CodeCaps Interface includes the CodeCaps Website and Dashboard.
CodeCaps Service means the products and services that are made available online by CodeCaps at codecapsules.io, including associated CodeCaps offline or mobile components, as described in the Documentation. CodeCaps Services exclude Content, Non-CodeCaps Applications and CodeCaps Marketplace Content.
Intellectual Property Rights means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations in part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
Launch means the first offering of paid Subscriptions for a CapStore Developer Service to Users (also referred to as general availability of an Add-on on the CodeCaps Service).
Malicious Code means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
Manifest means a descriptive code document which describes the interface between the CodeCaps Service and the applicable CapStore Developer Service.
Master Subscription Agreement means the terms between CodeCaps and Customers, as such agreements may be updated from time to time, that govern Customers' use of the CodeCaps Service.
Net Subscription Revenues means all revenues actually received by CodeCaps for the sale of Subscriptions attributable to the CapStore Developer Service less (i) the actual costs incurred by CodeCaps in selling the Subscriptions, including but not limited to transaction costs related to credit card processing; (ii) any rebates, credits, chargebacks, refunds or similar offsets actually issued by CodeCaps for the Subscriptions and (iii) any taxes that CodeCaps is required to collect and/or pay over to the relevant tax authorities in connection with the sale of Subscriptions.
Non-CodeCaps Application means a Web-based, mobile, offline or other software application functionality that is provided by a Customer, CapStore Developer or a third party (i.e., not CodeCaps) and interoperates with the CodeCaps Service or is distributed through the CodeCaps Marketplace, including, for example, an application that is developed by or for Customer or CapStore Developer, is listed on an online directory, catalog or marketplace of applications whether or not it interoperates with the CodeCaps Service or is merely distributed via the CodeCaps Marketplace as a value-added offering to Customers and CapStore Developers. Such Non-CodeCaps Application may also include proprietary Customer applications housed within a partitioned area of the CodeCaps Marketplace as a warchest of reusable code with access limited to specific Customer(s) or Users associated with a specific Customer(s).
Order Form means an ordering document or online order specifying the CodeCaps Services or CodeCaps Marketplace applications and that is entered into between Customer and CodeCaps or any of their Affiliates, including any addenda and supplements thereto.
Developer Portal means the portal on the CodeCaps Service providing the interface between CapStore Developer and the CodeCaps Service and/or CodeCaps Marketplace platform.
CapStore Developer Price means the monthly User price(s) for a Subscription(s).
CapStore Developer Service means the Add-on(s), Buildpack(s), or Marketplace Capsule(s) that CapStore Developer and/or CodeCaps makes available to Customers through the CodeCaps Marketplace pursuant to this Agreement.
Services means the products and services made available online by CodeCaps, including associated CodeCaps offline or mobile components, as described in the Master Subscription Agreement and associated Documentation. “Services” exclude Content and Non-CodeCaps Applications and CodeCaps Marketplace Content.
Subscription means a User subscription to use one or more Add-on(s) on the CodeCaps Service.
User means, in the case of an individual using the CodeCaps Marketplace on his or her own behalf, the Customer or, in the case of an individual accepting the CapStore Developer Service Terms on behalf of a company or other legal entity (the Customer), an individual who is authorized by Customer to use the CodeCaps Marketplace, for whom such Customer has purchased a subscription (or in the case of any CodeCaps Marketplace provided by CodeCaps without charge, for whom a CodeCaps Marketplace has been provisioned), and to whom a user identification and password have been supplied.
User Materials means any user guides, technical specifications, or other documentation for the CapStore Developer Service(s) that CapStore Developer makes available to Users.
2. Integration of the CapStore Developer Service.
2.1. CodeCaps shall make available the Developer Portal, the API, and the CodeCaps Service in accordance with this Agreement.
2.2. CapStore Developer shall provide, host and maintain the CapStore Developer Service and, if applicable, its related User Materials.
2.3. Privacy and Security of Customer Data Submitted or Accessed by the CapStore Developer Service. CapStore Developer will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data submitted, accessed or processed by the CapStore Developer Service. To the extent the CapStore Developer Service transmits or processes Customer Data outside CodeCaps's systems, CapStore Developer represents and warrants that it will notify all Customers and Users prior to their use of the CapStore Developer Service that their Customer Data will be transmitted or processed outside CodeCaps's system and to that extent CodeCaps is not responsible for the privacy, security, or integrity of that Customer Data. CapStore Developer shall not (a) modify Customer Data, except to provide the CapStore Developer Service or when expressly permitted in writing by Customer, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access or use Customer Data except to provide the CapStore Developer Service and prevent or address service or technical problems, or at Customer's request in connection with customer support matters. In addition, CapStore Developer shall comply with all applicable laws in providing the CapStore Developer Service, the CapStore Developer Price, the Manifest, the User Materials and the CapStore Developer Service Terms to Customers and Users. CapStore Developer agrees to maintain the confidentiality of Customer Data indefinitely following the expiration or termination of this Agreement. For the avoidance of doubt, Customer Data will be deleted in accordance with the Documentation.
2.4. CapStore Developer must comply with the requirements set forth in the CapStore Developer Documentation prior to submission of the CapStore Developer Service to CodeCaps. CodeCaps reserves the right, for any reason at any time (as CodeCaps decides in its sole discretion), to refuse to list or publish a CapStore Developer Service, Launch an Add-on, and/or remove any CapStore Developer Service from the CodeCaps Marketplace, including but not limited to, violations of the CodeCapsules Acceptable Use Policy available at https://codecapsules.io/policies or successor URL.
2.5. Add-ons Integration.
2.5.1. CapStore Developer shall submit each Add-on and the accompanying CapStore Developer Price via the Developer Portal for distribution pursuant to this Agreement.
2.6. Buildpacks Integration.
2.6.1. CapStore Developer may register a Buildpack by filling out the Buildpack registration form on the Developer Portal for registration of the Buildpack on the CodeCaps Marketplace pursuant to this Agreement.
2.6.2. CapStore Developer may only register a Buildpack for which CapStore Developer has Github access to the Buildpack's source code repository, and CapStore Developer may not register a third-party Buildpack.
2.6.3. CapStore Developer must make available CapStore Developer’s source code to each Marketplace Capsule and Buildpack registered by CapStore Developer to the users of the CodeCaps Marketplace under open source license terms and grant a license under CapStore Developer’s intellectual property rights to all authorized users of the CodeCaps Marketplace, to download, use, copy, modify, and distribute the Marketplace Capsule and Buildpack and repost CapStore Developer’s contributed content, subject to the terms and conditions herein.
126.96.36.199. Namespaces may not be inactively held for future use. Namespace squatting is prohibited. Inactive namespaces may be renamed or removed by CodeCaps at their discretion, including but not limited to violations of the Acceptable Use Policy available at https://codecapsules.io/policies or successor URL. Attempts to sell, buy, or solicit any form of value in exchange for namespaces are prohibited and may result in permanent account suspension. CapStore Developer may not select a namespace that violates others' trademark rights.
3. Distribution of the CapStore Developer Service.
3.1. Distributor Appointment
Subject to the terms and conditions of this Agreement, CapStore Developer hereby appoints CodeCaps as an authorized distributor to sell and/or distribute the CapStore Developer Service to Users for use in connection with the CodeCaps Marketplace.
CodeCaps shall distribute Add-ons only through Subscriptions.
3.3. Price Changes
CapStore Developer shall have the right to revise the CapStore Developer Price at any time with ninety (90) days advance written notice to CodeCaps, provided that any change to the CapStore Developer Price shall not take effect unless CapStore Developer has complied with the foregoing advance written notice to CodeCaps and the updated price change has been reflected in the CodeCaps Marketplace. Unless otherwise agreed in advance in writing between CodeCaps and CapStore Developer, CapStore Developer Price changes shall apply (a) after the effective date of such price changes with respect to all new Subscriptions or (b) no sooner than the first day after the expiration of the then-current monthly term with respect to renewals of Subscriptions.
3.4. Add-on Support
CapStore Developer will be responsible for performing all User support for the CapStore Developer Service. CodeCaps will permit Users to submit trouble tickets for an Add-on to the CodeCaps Service, and CodeCaps will transmit such trouble tickets to CapStore Developer. CapStore Developer will provide support promptly and during at least the same hours and at the same or better service levels as CapStore Developer provides support to its other customers, but in no event in a manner that fails to meet industry standards. For clarity, neither CapStore Developer nor CodeCaps have any obligation to support Buildpacks.
The Parties may decide to engage in joint marketing activities to promote the CapStore Developer Service offering on the CodeCaps Service. No party will engage in such marketing without the prior consent of the other. Each Party will pay its own costs and expenses for its marketing activities.
3.6. Governing Terms
4. Intellectual Property Rights.
4.1. CapStore Developer's Intellectual Property
CodeCaps acknowledges and agrees that, as between CapStore Developer and CodeCaps, CapStore Developer owns all right, title, and interest in and to the CapStore Developer Service and CapStore Developer's Intellectual Property Rights, and, other than as expressly set forth herein, CapStore Developer does not convey to CodeCaps any right of ownership or interest in any CapStore Developer Service or CapStore Developer's Intellectual Property Rights.
4.2. CodeCaps's Intellectual Property
CapStore Developer acknowledges and agrees that, as between CapStore Developer and CodeCaps, CodeCaps owns all right, title, and interest in and to the CodeCaps Service, API, and CodeCaps's Intellectual Property Rights, and, other than as expressly set forth herein, CodeCaps does not convey to CapStore Developer any right of ownership or interest in the CodeCaps Service, API, or CodeCaps's Intellectual Property Rights.
4.3. CapStore Developer Service License
Subject to the terms and conditions of this Agreement, CapStore Developer hereby grants to CodeCaps a worldwide, nonexclusive, non transferable (except as otherwise provided herein), royalty free license during the Term to:
(a) use, host, reproduce, publicly perform, distribute, transmit, translate, publicly display, modify and create derivative works of (for purposes of integrating with the CodeCaps Service or for distribution via the CodeCaps Marketplace) the CapStore Developer Service and CodeCaps Marketplace Content in connection with its use with the CodeCaps Service,
(b) access the CapStore Developer Service via the API solely for the purpose of providing the CapStore Developer Service and CodeCaps Marketplace Content via the CodeCaps Service and
(c) convey the same license set forth in 4.3(a) and (b) to Customers and Users.
4.4. CodeCaps Service License
Subject to the terms and conditions of this Agreement, CodeCaps hereby grants to CapStore Developer a non-exclusive, non-transferable limited right to access and use the CodeCaps Service via the API solely for the purpose of providing the CapStore Developer Service to Customers and Users and providing support as contemplated by this Agreement.
4.5. License Restrictions
CapStore Developer shall not:
(a) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for CodeCaps's API or the CodeCaps Service;
(b) except as expressly set forth herein, sell, resell, license, sublicense, distribute, make available, rent or lease the CodeCaps Service, the CodeCaps Marketplace, the Developer Portal, the CodeCaps Interface or API; or
(c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels from the CodeCaps Service, the CodeCaps Marketplace, the Developer Portal, the CodeCaps Interface or API.
CodeCaps shall not:
(a) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for any Add-on; or
(b) except as expressly set forth herein, sell, resell, license, sublicense, distribute, make available, rent or lease any CapStore Developer Service.
4.6. Trademark Cross-License.
Each Party (the "Granting Party") hereby grants to the other Party (the "Licensed Party") a limited, nonexclusive, nontransferable, non-sublicensable, royalty-free license during the Term to use the Granting Party's Marks ("Licensed Marks") for the sole purpose of identifying and promoting the Granting Party's business, products and services, and strictly in accordance with this Agreement. If the Granting Party is CodeCaps, its Licensed Marks are such marks identified publicly by CodeCaps as available for use to identify CapStore Developer and the CapStore Developer's participation in the CodeCaps Marketplace, and such associated designs and logos as specified or approved in writing by CodeCaps in its discretion from time to time (see Use of CodeCapsules Trademark).
CapStore Developer may use the CodeCaps Marks solely:
(i) for so long as CapStore Developer remains a CapStore Developer of the CodeCaps Marketplace; and
(ii) in any jurisdiction in which CapStore Developer is authorized to be a CapStore Developer and CodeCaps has rights.
This License does not grant rights to use any trademark of CodeCaps other than those identified as CodeCaps Marks herein. If the Granting Party is CapStore Developer, except to the extent any mark features any of the CodeCaps Marks, its Licensed Marks are its name, the name of the CapStore Developer Service(s), and such associated designs and logos as specified or approved in writing by CapStore Developer in its discretion from time to time (CapStore Developer Marks).
Each Party represents and warrants that it owns or otherwise has sufficient rights to its Licensed Marks, to the extent the Parties have obtained rights in a given jurisdiction, to grant the rights granted in this Agreement and its Marks do not infringe any intellectual property rights of any third party. All of the benefit and goodwill associated with the Licensed Party's use of the Granting Party's Licensed Marks will inure entirely to the Granting Party.
4.6.2. Usage Guidelines and Required Approvals
The Licensed Party's use of the Granting Party's Licensed Marks will strictly comply with the Granting Party's written trademark usage policies communicated to the Licensed Party from time to time, including the use of proper notices and legends (see Use of CodeCapsules Trademark). The Licensed Party will obtain the Granting Party's prior written approval of all uses of the Granting Party's Licensed Marks, which approval may be granted or withheld in the Granting Party's discretion. The Granting Party may withdraw any approval of any use of its Marks at any time in its discretion, although no such withdrawal will require the recall of any previously published or distributed written materials.
During the Term, the Licensed Party will reasonably cooperate with the Granting Party in facilitating the Granting Party's monitoring and control of the nature and quality of the materials, products and services bearing the Granting Party's Licensed Marks, and will supply the Granting Party with specimens of the Licensed Party's use of the Granting Party's Licensed Marks upon request. If the Granting Party notifies the Licensed Party that the Licensed Party's use of the Granting Party's Licensed Marks is not in compliance with the Granting Party's trademark policies or is otherwise in breach of this Agreement, then the Licensed Party will promptly take such reasonable corrective action as directed by the Granting Party.
4.6.4. Ownership/Good Faith Covenants
CapStore Developer acknowledges and agrees that the CodeCaps Marks are and will remain the sole and exclusive property of CodeCaps. CapStore Developer will not acquire any right, title, or interest in, to or associated with the CodeCaps Marks other than the limited license to use Licensed Marks identified above pursuant to this Agreement. Both during and after the Term, CapStore Developer will not itself, and will not assist, permit, or encourage any other person to, do anything or omit to do anything that might prejudice, impair, jeopardize, violate, dilute, depreciate, or infringe any of the CodeCaps Marks or CodeCaps's interest in the CodeCaps Marks without CodeCaps's prior express written approval. CodeCaps acknowledges and agrees that the CapStore Developer Marks are and will remain the sole and exclusive property of CapStore Developer. CodeCaps will not acquire any right, title, or interest in, to or associated with the CapStore Developer Marks other than the limited license to use Licensed Marks identified above pursuant to this Agreement. Both during and after the Term, CodeCaps will not itself, and will not assist, permit, or encourage any other person to, do anything or omit to do anything that might prejudice, impair, jeopardize, violate, dilute, depreciate, or infringe any of the CapStore Developer Marks or CapStore Developer's interest in the CapStore Developer Marks without CapStore Developer's prior express written approval.
Subject to the limited rights expressly granted hereunder, each Party reserves all of right, title and interest in and to their respective intellectual property. No rights are granted hereunder other than as expressly set forth herein.
5. Revenue Share & Payments.
5.1. Subscription Revenue Share
For any CapStore Developer Service that generates revenue pursuant to this Agreement, CodeCaps shall pay CapStore Developer 75% of the Net Subscription Revenues it receives hereunder (the "Revenue Share"). CodeCaps may change the percentage of the Revenue Share upon thirty (30) days advanced notice to CapStore Developer via the Developer Portal.
CodeCaps shall pay the Revenue Share due to CapStore Developer within thirty (30) days after the end of the calendar month in which such revenues are received from Customers by CodeCaps, by wire transfer or other method mutually acceptable to the Parties.
No later than the Revenue Share payment due date, CodeCaps shall make available to CapStore Developer via the Developer Portal a report itemizing the receipts and any permitted deductions thereto composing the Net Subscription Revenues.
Unless otherwise stated, CodeCaps's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). CapStore Developer is responsible for paying all Taxes associated with the Revenue Share and its activities on the CodeCaps Marketplace, excluding taxes based on CodeCaps's net income or property. If CodeCaps has the legal obligation to pay or collect Taxes for which CapStore Developer is responsible under this Section, the appropriate amount shall be invoiced to and paid by CapStore Developer, unless CapStore Developer provides CodeCaps with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Term & Termination.
This Agreement starts on the Effective Date and shall remain in effect unless terminated as set forth herein (the Term).
6.2. Termination for Cause
Either Party may immediately terminate this Agreement upon written notice to the other Party if:
(i) the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors,
(ii) the other Party publicly announces that it has reached agreement to acquire or be acquired by any direct competitor of the terminating Party,
(iii) the other Party breaches its confidentiality obligations under this Agreement or infringes or misappropriates the terminating Party's intellectual property rights,
(iv) it determines, based on one or more CodeCaps Customer or prospective CodeCaps Customer complaints, that the other Party's actions or statements creates a significant risk of harm to the terminating Party's reputation or customer relationships,
(v) the other Party has committed fraud or misrepresentation with respect to entering into and/or the performance of this Agreement,
(vi) a Party learns of circumstances that give it reason to believe that the other Party has engaged in illegal conduct or unethical business practices in connection with performance of this Agreement or more broadly,
(vii) the other Party, or any of its owners or employees responsible for providing services under this Agreement have become the target of an investigation or prosecution by any governmental authority for alleged corruption or other violation of laws, or
(viii) the other Party has violated Section 11.6 (CapStore Developer's Compliance with Applicable Laws) including, in the case of CodeCaps, CapStore Developer's violating CodeCaps's rights under trademark and copyright laws and/or ICANN policies and procedures governing domain names.
Subject to the foregoing, either Party may terminate this Agreement upon thirty (30) days' written notice to the other Party of such other Party's material breach if the breach is not cured during that period. In addition, after providing notice of material breach to CapStore Developer pursuant to this Section, CodeCaps, in its sole discretion, shall be entitled to withhold payment of Revenue Share and may suspend the listing of the CapStore Developer Service on the CodeCaps Marketplace. For clarity, the foregoing remedies in this Section shall be in addition to, and not in lieu of either Party's other legal rights and remedies.
6.3. Termination by CodeCaps for Convenience
Subject to Section 6.5 (Effect of Termination) below, CodeCaps may terminate this Agreement for convenience upon thirty (30) days' written notice to CapStore Developer.
6.4. Termination by CapStore Developer
CapStore Developer may terminate this Agreement upon ninety (90) days written notice, if CapStore Developer provides such notice to CodeCaps within fifteen (15) days of notice by CodeCaps to CapStore Developer of any planned amendment to this Agreement that CapStore Developer chooses not to accept, provided that if CodeCaps lowers the percentage of the Revenue Share pursuant to Section 5.1 (Subscription Revenue Share), CapStore Developer may terminate upon forty-five (45) days written notice. If CapStore Developer terminates this Agreement in accord with this Section 6.4, such rejected amendment(s) shall not take effect with respect to CapStore Developer. The foregoing termination right shall constitute CapStore Developer's sole remedy if CapStore Developer rejects any amendment to this Agreement made by CodeCaps. Otherwise, CapStore Developer may terminate this Agreement on 180 days' written notice to CodeCaps.
6.5. Effect of Termination
Upon termination of this Agreement, CapStore Developer shall cease to be a CodeCaps CapStore Developer and all of CapStore Developer's rights detailed in this Agreement and to use the CodeCaps Service or CodeCaps's other intellectual property shall cease. Provisions that survive termination or expiration include those relating to limitation of liability, payment, and others which by their nature are intended to survive. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination shall survive such termination.
7. Representations and Warranties.
Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2. DISCLAIMER OF WARRANTIES. CODECAPS DISCLAIMS ALL AND MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING THE CODECAPS SERVICE, THE DEVELOPER PORTAL, CODECAPS MARKETPLACE AND THE API, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL CODECAPS BE LIABLE TO CAPSTORE DEVELOPER (OR TO ANY INDIVIDUAL OR ENTITY AFFILIATED WITH CAPSTORE DEVELOPER) FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE CODECAPS SERVICE, THE CAPSTORE DEVELOPER SERVICES, CODECAPS MARKETPLACE CONTENT OR ANY OTHER CODECAPS PRODUCT OR SERVICE, MADE AVAILABLE, ACCESSED OR USED AS PART OF CAPSTORE DEVELOPER'S DISTRIBUTION OF ANY CAPSTORE DEVELOPER’S SERVICE OR CODECAPS MARKETPLACE CONTENT. CONTENT AND BETA SERVICES ARE PROVIDED "AS IS," AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
7.3. No Representations
CapStore Developer shall not, and CapStore Developer shall ensure that its employees, contractors and agents do not, make any representations, warranties, or guarantees concerning the CodeCaps Service or its functionality or performance characteristics, except to the extent set forth in the Documentation for the CodeCaps Service.
7.4. Malicious Code
CapStore Developer represents and warrants that the CapStore Developer Service does not contain any Malicious Code.
7.5. Right to CapStore Developer Service
CapStore Developer represents and warrants that CapStore Developer has the right to use and display the CapStore Developer Service and any related intellectual property, including but not limited to trademarks.
8.1. Definition of Confidential Information
Confidential Information means all confidential information disclosed by a Party (Disclosing Party) to the other Party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Confidential Information of CodeCaps shall include, without limitation, non-public aspects of CodeCaps and third party applications, the CodeCaps Service, and User data, if any, to which CapStore Developer has access through CodeCaps systems.
CapStore Developer's Confidential Information includes, but is not limited to CapStore Developer Service(s) and CapStore Developer's business and marketing plans, technology and technical information; products designs; and business processes.
Confidential Information of each Party shall include this Agreement and discussions regarding the CapStore Developer relationship. However, Confidential Information shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party without breach of an obligations owed to the Disclosing Party.
8.2. Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to:
(i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and
(ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with the Confidentiality obligations in this Agreement.
8.3. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8.4. Return of Confidential Information
Upon Disclosing Party's written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will:
(a) promptly deliver to the Disclosing Party all originals and copies of all the Disclosing Party's Confidential Information and all documents, records, data and materials containing such Confidential Information in the Receiving Party's possession, power, or control and the Receiving Party will delete all of the Disclosing Party's Confidential Information from any and all of the Receiving Party's computer systems, retrieval systems, and databases except to the extent such systems retain such information in the ordinary course of business for back-up purposes; and
(b) request that all persons to whom it has provided any of the Disclosing Party's Confidential Information comply herewith.
9. Limitation on Damages.
EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. CODECAPS'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE OR OWED TO CAPSTORE DEVELOPER UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, THE ABOVE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) BELOW.
10.1. Indemnification by CapStore Developer
CapStore Developer will defend CodeCaps against any claim, demand, suit or proceeding made or brought against CodeCaps by a third party:
(i) alleging that CapStore Developer's products or services (including CapStore Developer Services) or any data that CapStore Developer enters into the CodeCaps Service infringe the intellectual property rights of, or have otherwise harmed, a third party;
(ii) based upon a representation made by CapStore Developer to such third party; or
(iii) based upon a CapStore Developer's breach of this Agreement; (each a Claim Against CodeCaps), and will indemnify CodeCaps from any damages, attorney fees and costs finally awarded against CodeCaps as a result of, or for any amounts paid by CodeCaps under a settlement approved by CapStore Developer in writing of, a Claim Against CodeCaps, provided CodeCaps (a) promptly gives CapStore Developer written notice of the Claim Against CodeCaps, (b) gives CapStore Developer sole control of the defense and settlement of the Claim Against CodeCaps (except that CapStore Developer may not settle any Claim Against CodeCaps unless it unconditionally releases CodeCaps of all liability), and (c) gives CapStore Developer all reasonable assistance, at CapStore Developer's expense.
10.2. Indemnification by CodeCaps
CodeCaps will defend CapStore Developer against any claim, demand, suit or proceeding made or brought against CapStore Developer by a third party alleging that the CodeCaps Service infringes or misappropriates the intellectual property rights of a third party; (a Claim Against CapStore Developer), and will indemnify CapStore Developer from any damages, attorney fees and costs finally awarded against CapStore Developer as a result of, or for amounts paid by CapStore Developer under a settlement approved by CodeCaps in writing of, a Claim Against CapStore Developer, provided CapStore Developer (a) promptly gives CodeCaps written notice of the Claim Against CapStore Developer, (b) gives CodeCaps sole control of the defense and settlement of the Claim Against CapStore Developer (except that CodeCaps may not settle any Claim Against CapStore Developer unless it unconditionally releases CapStore Developer of all liability), and (c) gives CodeCaps all reasonable assistance, at CodeCaps expense.
If CodeCaps receives information about an infringement or misappropriation claim related to the CodeCaps Service, CodeCaps may in its discretion and at no cost to CapStore Developer:
(i) modify the CodeCaps Service so that they are no longer claimed to infringe or misappropriate,
(ii) obtain a license for CapStore Developer's or Customer's (as applicable) continued use of that CodeCaps Service in accordance with this Agreement; or
(iii) terminate any of CapStore Developer's or User's (as applicable) rights for that CodeCaps Service upon thirty (30) days' written notice and refund CapStore Developer or User (as applicable) any prepaid fees covering the remainder of the term of the terminated CodeCaps Service.
The above defense and indemnification obligations do not apply to the extent a Claim Against CapStore Developer arises from Content, a Non-CodeCaps Application, CodeCaps Marketplace Content or CapStore Developer's breach of this Agreement, the Documentation or applicable Order Forms.
10.3. Exclusive Remedy
This Indemnification Section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any third party claim described in this Section.
Neither CapStore Developer nor CodeCaps may assign any rights or obligations under this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed), provided either Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, capital raising or sale of all or substantially all of the assigning Party's assets not involving a direct competitor of the other Party.
11.2. Entire Agreement & Amendments
CapStore Developer agrees that this Agreement constitutes the entire agreement between the Parties relating to its subject matter. This Agreement supersedes and replaces any prior representations, written or oral, regarding its subject matter as well as any other online or click-through agreement that CapStore Developer may have previously entered into with CodeCaps governing its subject matter.
Conflicting terms and ambiguity
To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of the Order Form shall prevail. The Parties agree that any term or condition stated in a CapStore Developer purchase order or in any other CapStore Developer order documentation (excluding Order Forms) is void. This Agreement and any Order Form that CodeCaps and CapStore Developer enter into may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted; provided however, CodeCaps reserves the right to modify the terms and conditions of this Agreement upon at least 15 days' notice by posting a new version of this Agreement on the CodeCapsules website, subject to the terms of Section 6.4.
11.3. Relationship of Parties
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between CapStore Developer and CodeCaps. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, nor to represent the other Party as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this Agreement. CapStore Developer shall not make any proposals, promises, warranties, guarantees, or representations on CodeCaps's behalf or in CodeCaps's name.
If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
11.6. Compliance with Applicable Laws
11.6.1. Compliance with Ethical Brand Representation Standards
CapStore Developer shall comply with all applicable laws and regulations in its marketing activities hereunder and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to CodeCaps and shall perform its obligations hereunder in a manner that in CodeCaps's judgment reflects well upon CodeCaps and its brands.
11.6.2. Compliance with Global Trade Laws
The Parties, as well as the CodeCaps Service, Content, and other technology CodeCaps makes available may be subject to export and economic sanctions laws and regulations of various jurisdictions. Each Party represents that as of the Effective Date neither the Party, nor its Affiliates, is:
(a) currently identified on any sanctions or export control list (Sanctioned Persons) ; nor
(b) located, organized or ordinarily resident in an embargoed country or territory (currently Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of Ukraine) (Embargoed Territories).
Unless otherwise authorized by a specific license, general license, exemption, or other authorization, CapStore Developer shall not (a) submit or provide access to the CapStore Developer Service into or from, or permit Users to access or use any CapStore Developer Service from, an Embargoed Territory; (b) engage in any transaction with, or allow access or use of any CapStore Developer Service by, a Sanctioned Person, in connection with CapStore Developer's activities contemplated by this Agreement; or (c) engage in any other activity or transaction pursuant to this Agreement that would be in violation of any export or economic sanctions law or regulation.
11.6.3. Compliance with Anti-corruption Laws
In connection with this Agreement, CapStore Developer, and all employees, officers, and directors, and any other third parties working for CapStore Developer or performing activities on CapStore Developer's behalf:
(1) have complied with and shall comply with all applicable laws and regulations, including any applicable anti-bribery and anti-corruption laws and regulations (Anti-Corruption Laws); and (2) shall keep accurate books, accounts, and records. It is the intent of the Parties that no payments or transfers of anything of value shall be made in connection with this Agreement that have the purpose or effect of public, commercial or other bribery, or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage.
11.6.4. Consequences of Violation
CapStore Developer hereby acknowledges and agrees, CodeCaps may terminate or suspend this Agreement immediately by written notice without any liability to CapStore Developer:
(1) upon any violation by CapStore Developer of this section; or
(2) circumstances causing CodeCaps to believe, in good faith, that CapStore Developer, or any of its owners, directors, employees, or third parties (including subcontractors, sub-distributors, integrators, or other third parties), has engaged in illegal conduct or unethical business practices, including any potential violations of the Anti-Corruption Laws. Termination or suspension by CodeCaps under this section shall be in addition to, and not in lieu of, CodeCaps's other legal rights and remedies. If CodeCaps terminates or suspends the Agreement under this section, CodeCaps may suspend or withhold any payments to CapStore Developer, including payments for services previously performed. CodeCaps will not be liable for any claims, losses, or damages arising from or related to failure of CapStore Developer to comply with the Anti-Corruption Laws or this Agreement or related to the termination or suspension of this Agreement under this clause, and CapStore Developer will indemnify and hold CodeCaps harmless against any such claims, losses, or damages.
CapStore Developer agrees that it has provided or will provide training and information to its officers, directors, employees, and any third parties utilized by CapStore Developer in connection with performance of this Agreement as necessary to ensure full compliance with the Anti-Corruption Laws and any other applicable laws and any obligations under this Agreement.
CapStore Developer agrees that CapStore Developer, by and through an authorized officer, will periodically, at CodeCaps's request, complete CodeCaps's Due Diligence Questionnaire and Compliance Certification and/or otherwise certify compliance in writing with CapStore Developer's obligations set forth in this Agreement. CapStore Developer may be subject to additional due diligence, questions and training, as determined by CodeCaps in its sole discretion.
11.6.7. Reporting Potential Violations
CapStore Developer agrees that it shall promptly inform CodeCaps's Legal Department (firstname.lastname@example.org) in writing should it or any of its officers, directors, or employees learn of, or suspect, any act or circumstance that may violate applicable laws in connection with this Agreement.
11.6.8. No Affiliation with Government Officials -- Disclosure Obligation
CapStore Developer affirms that (1) none of its owners, directors, employees and, to its knowledge, third parties involved in the performance of this Agreement is a Government Official or a Close Family Member of a Government Official with the ability, or appearance of ability, to influence the performance of this Agreement; or that (2) it has fully described any such relationship in writing to CodeCaps's Legal Department (email@example.com) and received acknowledgement by CodeCaps's Legal Department of such disclosure. For purposes of this Agreement (A) "Government Official" means an officer or employee of any government; officer or employee of any public international organization; officer or employee of any department, agency, or instrumentality of any government or of any public international organization; officer or employee of any government-owned or government-controlled company; political party; political party official; or anyone, whether a private person or otherwise, acting in an official capacity on behalf of any of the above or of any government entity and (B) "Close Family Member of a Government Officials" means the Government Official's spouse, the Government Official's or the spouse's grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; the spouse of any of the above; or any other person who shares the same household with the Government Official. In the event that during the term of the Agreement there is a change in the information described in this paragraph, CapStore Developer shall promptly disclose such change to CodeCaps's Legal Department in writing.
11.6.9. Disclosure of Third Parties
CapStore Developer shall not utilize or employ any Affiliate, third-party subcontractor, consultant, agent, or other intermediary, not identified in this Agreement, in connection with the performance of lead generation, or Government-Controlled Entity procurement activities under this Agreement without express prior written consent from CodeCaps's Legal Department (firstname.lastname@example.org). CodeCaps will have the authority to accept or reject any proposed third party.
11.6.10. Inspection Rights
CodeCaps shall be allowed reasonable access to inspect, audit, and make copies of CapStore Developer's relevant books, records, and accounts, and may use third-parties, such as external audit firms, to assist in any such activities. Such inspection and audit may include interviews of relevant CapStore Developer personnel. Such audit may be conducted during regular business hours at CapStore Developer's offices and shall not unreasonably interfere with CapStore Developer's business activities. CapStore Developer agrees that it will fully cooperate with CodeCaps's reasonable requests in any such audit.
CapStore Developer grants CodeCaps a worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licenseable, license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by CapStore Developer relating to the operation of CodeCaps's or its Affiliate's services.
11.8. Cooperation on Disputes
CapStore Developer shall cooperate with CodeCaps in regard to any inquiry, dispute or controversy in which CodeCaps may become involved and of which CapStore Developer may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of CapStore Developer's personnel. Such obligation shall continue after the expiration or termination of this Agreement.
11.9. CodeCaps Contracting Entity, Notices, Governing Law, and Domicile
The CodeCaps entity that CapStore Developer is contracting with under this Agreement is Code Capsules Holdings Limited, the address to which CapStore Developer should direct legal notices arising under or relating to this Agreement is:
Code Capsules Holding Limited, a company incorporated in Mauritius with registration number 185223 and with its head office at 12th Floor, Tower 1, Nexteracom Towers, Cybercity, Ebene, Mauritius
The law that will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, shall be the Laws of Mauritius and the Mauritian courts shall have jurisdiction.
11.9.2. Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email. Legal notices to CapStore Developer shall be addressed to the address provided above, and in the case of billing-related notices, to the relevant billing contact designated by CapStore Developer. Notices to CodeCaps shall be addressed to the entity CapStore Developer is contracting with, as described above, and to the attention of the CapStore Developer's Program Account Manager with a copy sent to CodeCaps's General Counsel.
11.9.3. Governing Law and Jurisdiction
Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.