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PLEASE READ AND AGREE TO THIS AGREEMENT BEFORE USING THE SDK.
BY CHECKING THE ACCEPTANCE BOX AND/OR USING THE SDK, YOU ACCEPT WITHOUT
RESERVATION ALL TERMS AND CONDITIONS IN THIS AGREEMENT AND THE TERMS
AND CONDITIONS SET FORTH IN ITS ANNEX(ES) CONCLUDED BETWEEN YOU AND
METROLOGICAL.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT AND
IN ITS ANNEX(ES), DO NOT CHECK THE ACCEPTANCE BOX AND DO NOT USE THE
SDK.
IF YOU WANT TO ACCEPT THE TERMS AND CONDITIONS IN THIS AGREEMENT AND IN
ITS ANNEX(ES) ON BEHALF OF YOUR EMPLOYER OR ANY LEGAL ENTITY, YOU
WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS AND CONDITIONS
OF THE AGREEMENT AND ITS ANNEX(ES) ON BEHALF OF YOUR COMPANY OR ANY
OTHER LEGAL ENTITY AND TO LEGALLY BIND YOUR COMPANY OR SUCH LEGAL ENTITY.
Metrological Software Development Kit License Agreement
This Software Development Kit License Agreement (the “Agreement”) is
entered into by and between Metrological Media Innovations B.V.,
Mariniersweg 151, 3011 NK Rotterdam, The Netherlands (“Metrological”),
and you (also defined below as Developer).
Metrological shall provide the SDK (as defined below) to you as
described in accordance with the terms and conditions in this Agreement
including its Annex(es).
1. Purpose
1.1. The purpose of this Agreement is to define the terms and
conditions under which you are permitted to use the SDK in order
to develop and/or test under your own responsibility App(s)
which may, upon validation by Metrological, be included in
the App Catalogue and distributed through Operator Stores.
2. Definitions
2.1. The Annex(es) specified hereunder (hereinafter: “Annex(es)”)
will be attached to the Agreement and form an integral part
thereof:
Annex A: Metrological App Catalogue Terms and Conditions
Annex B: GNU Affero General Public License Terms and Conditions
2.2. In this Agreement expressions below shall have the meaning
assigned to them in this article:
“App” shall mean a software application or user interface
developed by the developer by using the SDK;
“App Catalogue” shall mean the library of Apps that Metro-
logical makes available to operators of Operator Stores and
from which operators make a selection to be included in their
Operator Store;
“App Catalogue Agreement” shall mean the agreement to be entered
into by Metrological and Developer in accordance with article 3
of the Metrological App Catalogue Terms and Conditions (attached
as Annex A to this Agreement);
“Confidential Information” shall mean the term as defined in
article 7.1 of this Agreement;
“Developer” shall mean you, a physical person, or if you are
accepting these terms on behalf of a legal entity (such as a
corporation, partnership or government agency), “Developer” or
“Developer’s” means such legal entity;
“Feedback” shall mean the term as defined in article 7.3 of this
Agreement;
“Modified OSS” shall mean the term as defined in article 6.2 of
this Agreement;
“Operator Store” shall mean a customized app store that enables
an operator to sell or provide content to end-users through an App
if an operator has selected the App from the App Catalogue;
“OSS” (Open Source Software) shall mean any software that requires
as a condition of use, copying, modification and/or distribution of
such software that such software or other software incorporated
into, derived from or distributed with such software (a) be disclosed
or distributed in source code form, and (b) be licensed for the purpose
of making and/or distributing derivative works, and (c) be
redistributable at no charge;
“OSS parts of the SDK” shall mean the term as defined in article 6.2
of this Agreement;
“SDK” (Software Development Kit) shall mean any software (source code
and object code), documentation, applications, libraries, APIs, instruc-
tions, data, files, sample code, emulator, tools, and other materials
including any Updates provided by Metrological and/or affiliates for
use by Developer to develop or test App(s);
“Term” shall mean the term as defined in article 13.1 of this Agreement;
“Updates” shall mean the term as defined in article 8.1 of this
Agreement.
3. License
Metrological grants Developer during the Term a worldwide, royalty-
free, personal, revocable, non-exclusive, non-sublicenseable, and non-
transferable license to access, download, and use a reasonable num-
ber of copies of the SDK on the computers owned or controlled by
Developer, for the sole purpose of developing or testing the App,
and further subject to the restrictions and conditions set forth in
this Agreement.
4. Restrictions and Conditions
The use of the SDK by Developer under this Agreement is subject to the
following restrictions and conditions:
4.1. Developer may not decompile, decrypt, create derivative works,
disassemble, modify, or reverse engineer the SDK in any way, except
as otherwise expressly permitted in this Agreement.
4.2. Developer may not (attempt to) distribute or otherwise (commercially)
exploit the App by any means other than through the App Catalogue
offered by Metrological, its affiliates, or its distribution partners.
The terms and conditions regarding distribution of Apps through the
App Catalogue are set forth in Annex A. By checking the acceptance box,
and/or using the SDK, Developer has accepted without reservation all
terms and conditions in Annex A. In the event Developer develops and/or
tests the App for a third-party and as such has no intention to dis-
tribute the App through the App Catalogue, the terms and conditions set
forth in Annex A will not apply and the Developer shall provide the
third party with the terms and conditions set forth in Annex A and such
party shall be required to enter into a separate app catalogue agreement
with Metrological if it desires to distribute the App(s) through the App
Catalogue; such app catalogue agreement shall be based on the terms and
conditions set forth in Annex A.
4.3. Developer may not use the SDK to develop and/or test anything else than
App(s).
4.4. Developer may not sell, distribute, rent, lease, lend, sublicense,
upload to or host on any website or server the SDK in whole or any non-
OSS parts of the SDK.
4.5. Developer may not incorporate any OSS into the SDK in such a way that
the non-OSS parts of the SDK would become subject to any licensing
obligations associated with OSS, or that the OSS parts of the SDK would
become subject to other OSS licensing obligations than the OSS licensing
obligations pursuant to this Agreement.
4.6. Developer may not incorporate any OSS part of the SDK in any other plat-
form, application, software or otherwise.
4.7. Developer may not develop App(s) to operate nuclear facilities,
life support, or other mission critical application where human
life or property may be at stake.
4.8. Developer may not use the SDK for any unlawful or illegal activity,
nor develop Apps that would commit or facilitate (the commission of) a
crime, or other unlawful or illegal acts.
4.9. Developer may not delete or alter any disclaimers, warning, copyright
or other proprietary notices accompanying the SDK.
4.10. Developer may not develop App(s) that infringe copyright, design,
know-how, trademarks, model, know-how, patents, commercial secrets and
any intellectual property rights belonging to Metrological or to third
parties.
4.11. Developer will use the SDK in accordance with all applicable laws,
regulations and requirements, especially regarding the collection of
user data by the App.
5. Validation
5.1. Developer acknowledges that the App requires validation and consent
by Metrological before the App may be included in the App Catalogue.
Metrological may withhold such validation and/or consent for the App
to be included in the App Catalogue at its sole discretion.
5.2. In no event shall Metrological be liable for any direct, indirect or
consequential damages or purely financial loss such as, but not limited
to, missed business opportunities, lost sales, volume and profit, and
data loss resulting from Metrological’s refusal to validate or provide
consent to include the App in the App Catalogue.
6. Ownership and Intellectual Property
6.1. Metrological and its affiliates remain the owner of all right, title,
and interest in and to the non-OSS parts of the SDK and any Updates
thereof. Developer shall not mortgage, pledge or encumber the SDK in
any way.
6.2. Certain components of the SDK and certain software li-braries
included in the SDK are OSS (“OSS parts of the SDK”) and licensed under
the terms of the GNU Affero General Public License (AGPL). The terms and
conditions of AGPL are attached to this Agreement as Annex B and can
also be found online here: https://www.gnu.org/licenses/agpl-3.0.html.
The OSS parts of the SDK will be marked as such. Developer may modify or
replace only the OSS parts of the SDK (“Modified OSS”) provided that (i)
the Modified OSS will solely be used in combination with the SDK, (ii)
the Modified OSS is used in accordance with the restrictions and condi-
tions set forth in this Agreement, and (iii) otherwise complies with the
terms and conditions of this Agreement and the terms and conditions of
AGPL.
7. Confidentiality and Feedback
7.1. Developer shall consider versions of the SDK that have not yet been
publicly released and any other non-public information, including about
Metrological’s business, designs, developments, finances, know-how,
products, personnel or research, that Developer learns by using the
SDK, as confidential information (“Confidential Information”) under
this Agreement.
7.2. Developer shall protect Confidential Information using at least the
same degree of care that Developer uses to protect his own confidential
information of similar importance, but no less than a reasonable degree
of care. Developer may use Confidential Information solely for the pur-
pose of exercising his rights and performing his obligations under this
Agreement. Developer may not use Confidential Information for any other
purposes without Metrological’s prior written consent. Developer may
disclose Confidential Information to the extent required by law,
provided that Developer takes reasonable steps to notify Metrological of
such requirements before disclosing the Confidential Information and to
obtain protective treatment of the Confidential Information.
7.3. Developer acknowledges that if he provides Metrological with any sugges-
tions, comments, or other feedback about the SDK (“Feedback”) such
Feedback is given voluntarily. Developer also acknowledges that even if
he designates such Feedback as confidential, unless the parties enter
into a separate subsequent written agreement, the Feedback will not be
confidential and Metrological will be free to use, disclose, reproduce,
license, or otherwise distribute or exploit the Feedback at its sole
discretion without any obligations or restrictions of any kind,
including without limitation, intellectual property rights or licensing
obligations. Developer warrants that he will not provide Metrological
with any Feedback that is subject to license terms that seek to require
any Metrological product, technology, service or documentation incor-
porating or derived from such Feedback, or any Metrological intellectual
property, to be licensed or otherwise shared with any third party.
8. Updates
8.1. Metrological may extend, enhance or otherwise modify the SDK at its
sole discretion and without notice (“Updates”), but Metrological shall
not be obligated to provide Developer with any such Updates. If Updates
are made available by Metrological, the terms of this Agreement will
govern the use of and access to such Updates. Metrological is not
obligated to provide any maintenance, technical or other support for
the SDK.
8.2. Metrological may at its sole discretion include Modified OSS in any
Updates, but Metrological shall not be obliged to do this. In no event
shall Metrological be liable for any direct, indirect or consequential
damages or purely financial loss such as, but not limited to, missed
business opportunities, lost sales, volume and profit, and data loss
resulting from any Update, including Metrological’s decision not to
include (certain) Modified OSS in any Updates.
9. Press releases
The Developer may not issue any press releases or make any other public
statements regarding this Agreement, its terms and conditions, the
App(s), or the relationship of the Developer and Metrological,
without Metrological’s express prior written consent, which may be
withheld at Metrological’s discretion.
10. Warranty disclaimer
The SDK is provided “as is”, without warranty of any kind, express or
implied. Metrological and its suppliers make no representations or
warranties with respect to the SDK, either express or implied,
including, but not limited to, fitness for a particular purpose,
availability, security, title, non-infringement or backward compati-
bility. Metrological and its affiliates do not warrant that the SDK
is free of bugs, errors, inaccuracies, or interruptions, or is
accurate, complete, compliant to any specifications, reliable, or
otherwise valid.
11. Limitation of liability
In no event shall Metrological and/or its affiliates be liable for
direct, indirect and/or consequential damages or purely financial loss
such as, but not limited to, missed business opportunities, lost sales,
volume and profit, and data loss in connection with or arising out of
this Agreement.
12. Indemnification
Developer shall indemnify and hold Metrological harmless against all
claims, costs, damages, expenses and reasonable attorney fees arising
out of, directly or indirectly, the use of the SDK by Developer, and
any claim of product liability, personal injury or death associated with
any unintended use, even if such claim alleges that Metrological was
negligent regarding the design or manufacture of the SDK.
13. Termination and its Consequences
13.1. The Agreement shall be in effect until terminated by either Developer or
Metrological (the “Term”). Developer may terminate this Agreement at
his convenience by discontinuing his use of the SDK. Metrological may
terminate this Agreement immediately in writing (including email or text
message) to the Developer, without prior written notice, when the
Developer fails to comply with any term(s) of this Agreement, or for
convenience upon ten (10) days prior written notice (including email
or text message) to Developer. The terms of this Agreement that by
their nature should survive termination shall survive termination.
13.2. Developer shall immediately destroy all his copies of the SDK upon
termination of this Agreement, unless Metrological agrees in writing
to a written request of Developer for continuation of the use of the
SDK beyond the Term. In such event, Metrological may demand for its
convenience immediate destruction by the Developer of all his copies
of the SDK.
13.3. In the event of termination of this Agreement, Metrological is entitled
to remove relevant App(s) from the App Catalogue, and terminate the App
Catalogue Agreement between Metrological and Developer at its sole
discretion. In no event shall Metrological be liable for any direct,
indirect or consequential damages, or purely financial loss such as,
but not limited to, missed business opportunities, lost sales, volume
and profit, and data loss resulting from Metrological’s removal of the
App from the App Catalogue.
14. General
14.1. Entire agreement
This Agreement including its Annex(es) sets forth the entire agreement
and understanding between Metrological and the Developer with respect
to the subject matter hereof.
14.2. Assignment
Developer may not assign or subcontract any of its obligations under
this Agreement without Metrological’s prior written consent.
Metrological may assign or subcontract any of its obligations under
this Agreement at its sole discretion.
14.3. Severability
In the event that any provision of this Agreement shall be unenfor-
ceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render
this Agreement unenforceable or invalid as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accom-
plish the objectives of such unenforceable or invalid provision within
the limits of applicable law or applicable court decisions.
14.4. Non waiver
The failure of Metrological to give notice to Developer of any breach
or non-fulfilment of any provision, term or clause of this Agreement
shall not constitute a waiver thereof, nor shall the waiver of any
breach or non-fulfilment of any provision, term or clause hereof
constitute a waiver of any other provision, term or clause thereof.
14.5. Applicable law and jurisdiction
This Agreement shall be governed by and shall be construed in
accordance with the laws of the Netherlands. Any dispute, which may
arise between Metrological and Developer as a result of this Agreement,
shall be exclusively submitted to the competent court in Rotterdam,
the Netherlands.
Annex A: App Catalogue Terms and Conditions
1. Annexes and Definitions
1.1. The Annex specified hereunder (hereinafter: “Annex”) will be attached to
these Metrological terms and conditions (hereinafter: “Terms and Con-
ditions”) and form an integral part thereof:
Annex A1: Instructions for Minimum Terms and Conditions of Developer’s
End-User License Agreement
1.2. In the event that any terms of these Terms and Conditions conflict with
the terms contained in the Annex, the terms contained in the Terms and
Conditions shall prevail unless explicitly indicated otherwise in the
Annex.
1.3. In these Terms and Conditions and in any Agreements the expressions
below shall have the meaning assigned to them in this article:
“Agreement” shall mean the App Catalogue Agreement, to be entered into
by Metrological and Developer in accordance with article 3, on the Ef-
fective Date, including the annexes thereto and any future written and
executed amendments thereof, containing the information provided to
Metrological during the submission process of the App;
“Amendment” shall mean the document by which changes to these Terms and
Conditions and/or the Agreement are effected pursuant to article 4;
“App” shall mean the software application through which the totality of
the Content is delivered by Developer for provision to End-users via an
Operator Store;
“App Catalogue” shall mean the library of Apps that Metrological makes
available to Operator Store Owners and from which Operator Store Owners
make a selection to be included in the Operator Store of a specific
Operator Store Owner;
“Content” shall mean the entire substance and content of an App, in-
cluding materials of an audiovisual or other nature (including but
not limited to games and information) as specified in the Agreement
including its Annexes;
“Content Fee” shall mean the price which the End-user must pay to De-
veloper or Operator Store Owner in order to be able to view a particu-
lar Content Item;
“Content Item” shall mean an individually identifiable piece of Content,
such as a film, TV program or game, offered to End-users through the
provision of Content Services;
“Content Services” shall mean all media and information services
provided by Developer to End-users via the Operator Store, including
audio-visual media services as defined in Directive 2010/13/EU and
information society services as defined in Directive 2000/31/EC;
“Developer” shall mean a (future) customer of Metrological that has
developed an App for inclusion in the App Catalogue;
“End-user” shall mean the customer of Developer who is the final or
ultimate user of the Content Services;
“Intellectual Property Rights” shall mean any and all rights, including
future rights, in inventions, patents, designs, copyrights, trademarks,
service marks, database and topography rights (whether or not any of
the foregoing have been registered, and including applications for
registration of any of the foregoing), together with all trade secrets,
know-how and rights or forms of protection of a similar nature or
having a similar effect to any of the foregoing which may exist anywhere
in the world;
“Legal Requirements” shall mean any international, European Union,
Federal, national, State, provincial or local law, regulation, order,
statute, administrative order or treaty, judgment, court order, code
of conduct (whether or not binding), guidance and other requirements
of any relevant government or governmental agency or regulatory
authority as they apply from time to time in the Netherlands or any
other place where the Content Services may be provided;
“Metrological” shall mean Metrological Widgets B.V., a private company
with limited liability incorporated under the laws of the Netherlands,
whose corporate seat is at Rotterdam and whose principal office is
located at Mariniersweg 151, 3011 NK Rotterdam, the Netherlands;
“Operator Store” shall mean a customized app store for which an
Operator Store Owner has selected Apps from the App Catalogue.
The Operator Store enables Developer to sell Content to End-Users
through an App, if an Operator Store Owner has selected the App from
the App Catalogue for its Operator Store;
“Operator Store Owner” shall mean a third party that is the owner of an
Operator Store;
“Parties” shall mean Metrological and Developer;
“Party” shall mean either Metrological or Developer;
“Personal Data” shall mean information related to an identified or
identifiable natural person as defined in Directive 95/46/EC;
“SDK License Agreement” shall the agreement between Metrological and
Developer that enables Developer to develop and test the App by means
of Metrological’s Software Development Kit.
2. Scope
2.1. Metrological will host the App in the App Catalogue in accordance with
the terms and conditions of these Terms and Conditions and the
Agreement.
2.2. The development of the App is beyond the scope of the Agreement.
Developer has developed or will develop the App by itself.
2.3. Developer is responsible for the uninterrupted supply of the Content
to Metrological and for any external data feeds.
2.4. Any and all services to be provided by Metrological under these Terms
and Conditions and/or the Agreement will be provided on a best effort
basis, unless explicitly stated otherwise in respect of a specific
service.
3. Agreement
Developer will provide the information requested during the submission
process of the App to be included in the App Catalogue. If Metrological
approves the information submitted by Developer and has validated the
App in conformity with article 5 of the SDK License Agreement, it will
send a confirmation of approval to Developer. The sending of such con-
firmation of approval constitutes a legally binding agreement between
both Parties (the “Agreement”).
These Terms and Conditions form an integral part of the Agreement.
4. Effective Date, Term and renewal
The Agreement shall commence on the Effective Date and shall continue
for a period of 1 year(s) (the “Initial Period”). After the Initial
Period the Agreement will be renewed automatically by 1 year terms,
unless Parties agree 2 months before the end of the Initial Period or
any renewal period thereafter on an Amendment. If one of the Parties
desires any changes with respect to the terms of the Agreement it will
notify the other Party at least 4 months before the end of the Initial
Period or any renewal period thereafter and Parties will start good-
faith negotiations. To the extent that the Agreement provides with re-
spect to certain terms of the Agreement for an alternative method of
agreeing on changes that method will prevail. If Parties have not agreed
on an Amendment, the Agreement will continue on the same basis or either
Party may terminate the Agreement. Either Party may terminate the Agree-
ment by sending a written notice 2 months prior to the end of the
Initial Period or any renewal period.
5. Fees and Payment
5.1. In the event that Parties have agreed in the Agreement that it will
include paid App(s), the following will apply.
5.2. The fees to be paid by Metrological to Developer amount to 70% of the
Content Fee, less Value Added Taxes, less Metrological’s transaction
and other costs as determined by Metrological and the Operator Store
Owner. Transaction costs will among others include server costs and
billing costs. The transaction costs will not be deducted if Developer
is responsible for billing the Content Fees to End-user
5.3. Developer shall determine the Content Fees.
5.4. Billing of the Content Fees will be done either by (a) Operator Store
Owner or (b) Developer.
(a) The following applies if Operator Store Owner is responsible for
billing to End-users.
The Content Fees will be paid by End-users to the Operator Store Owner.
The Operator Store Owner will pay Metrological and Metrological will
pay the under 5.2 agreed fee to Developer.
Metrological will provide Developer within (30) thirty days after the
end of a calendar month with an overview of the Content Fees received
in the preceding month and the amount due to Developer as to be cal-
culated in accordance with article 5.2. On the basis of this overview
Developer will provide Metrological with an invoice for the total amount
of Content Fees due to and to be transferred to Developer. If any re-
conciliation adjustments arise after Developer has provided Metrological
with an invoice, an appropriate balancing payment shall be made in the
following month.
(b) The following applies if Developer is responsible for billing to
End-users.
The Content Fees will be paid by End-users to Developer. Developer will
pay Metrological and Metrological will pay to Operator Store Owner its
share.
5.5. Developer will provide Metrological within (30) thirty days after the
end of the calendar month with an overview of the Content fees in the
preceding month. On the basis of this overview Metrological shall cal-
culate in accordance with the revenue model set out in article 5.2 the
amount that it is entitled to and will provide Developer with an invoice
for such amount, which amount will be paid within ten (10) days by De-
veloper to Metrological. Developer is solely responsible for remitting
total VAT and sales tax collected from End-users. If any reconciliation
adjustments arise an appropriate balancing payment shall be made in the
following month.
5.6. All prices are in Euros and exclude VAT and possible other taxes and
levies.
5.7. No more than once during any twelve (12) month period, upon at least
thirty (30) days prior written notice, Developer may, at its expense,
engage an independent auditor to review the records of Metrological for
the sole purpose of verifying Metrological’s compliance with its
reporting and payment obligations hereunder. Should such audit discover
an underpayment that results from understated reporting of the Content
Fees in the amount of 10 percent (10%) or more of the net fees to be
paid to Developer for any calendar quarter, Developer shall be reim-
bursed for the reasonable costs of such audit in addition to receiving
the adjusted payment.
5.8. In case Developer fails to deliver Content to End-user in any way,
Metrological may where applicable, and at its sole discretion re-provide
this Content to End-user. Alternatively, Developer will re-provide the
Content at the request of Metrological. In such an event, the
re-providing of Content will be free of charge, and this transaction
will not be included in any invoice from Developer to Metrological.
In the event that the (i) End-user has paid to get access to the Con-
tent, (ii) due to Developer, Metrological and/or Operator Store Owner
there is a failure in the delivery of the Content to End-user and (iii)
End-user terminates its agreement pursuant to which it has paid for the
Content, or is for any other reason entitled to reimbursement of its
payment, the Operator Store Owner shall reimburse the payment to End-
user. Developer shall reimburse the payment to Operator Store Owner.
5.9. Any and all revenues generated by Developer with the App, like revenues
from advertisement, will be shared in accordance with the percentages
mentioned in article 5.2. Developer is explicitly not entitled to
separately sell or place advertisements around the Content and/or Con-
tent Items delivered through the App without the prior written consent
of Metrological. Such consent may be conditioned upon Developer using
the advertisement insertion framework of Metrological for selling and
placing advertisements.
6. Content
6.1. Developer will deliver at its sole expense any App, App information
and associated metadata to Metrological in a (technological) quality and
standard prescribed by Metrological, as required for including the App
in the App Catalogue. The metadata that Developer will deliver to
Metrological will include (i) the title and the version number of each
App; (ii) the territories Developer designates, in which Developer
wishes Metrological to allow Operator Store Owners to make available the
Apps through their Operator Stores to End-users and; (iii) any copyright
notices.
6.2. Developer may request Metrological to withdraw any App from the App
Catalogue and, if applicable, Operator Stores upon 90 days’notice.
Metrological will do its best to remove such App as soon as possible.
Notwithstanding the right of Developer to request Metrological to with-
draw any App from the App Catalogue and, if applicable, Operator Stores
with a prior written notice of 90 days, Developer shall have the right
to require from Metrological that it withdraws any Content Item im-
mediately from an App in the event that Developer determines at its
sole discretion that the provision of that Content Item would or might
(i) infringe upon the rights of others, (ii) violate any Legal Re-
quirement, or iii) subject either Party to any liability or litigation.
6.3. Notwithstanding the right of Metrological to withdraw (i) any Content
Item from the App or (ii) any App with a prior written notice of 90
days, Metrological shall have the right to withdraw any Content Item
immediately from the App in the event that Metrological determines, at
its sole discretion, that the provision of that Content Item would or
might i) infringe upon the rights of others, ii) violate any Legal Re-
quirement, iii) subject either Party to any liability or litigation, or
(iv) does not comply with (technological) quality or ethical standards
as determined solely by Metrological, such as negatively influencing
the stability of the platforms of Metrological, and, if applicable, any
Operator Store Owner.
6.4. Developer may indicate that it does not want its App to be included in
any particular Operator Store. Metrological will on a best effort basis
eliminate or withhold this App from that particular Operator Store.
6.5. Developer has secured and will maintain at its sole expense all perfor-
ming rights and licenses (such as BUMA-STEMRA, broadcasting licenses)
necessary to publicly perform the music in the Content and Developer
shall hold Metrological harmless and indemnifies it against any and all
claims arising out of Developer’s failure to do so.
6.6. In relation to the delivery of the Content Services to End-users,
Parties assess and assume that Developer will be deemed to be the media
service provider as defined in Directive 2010/13/EU and the entity re-
sponsible for all communication to the public and/or making available
of Content as defined in Article 3 of Directive 2001/29/EC. Developer
accepts these responsibilities and will comply with all Legal Require-
ments in this regard. Developer holds Metrological harmless and will
indemnify it against any and all claims arising out of any failure to
comply with any Legal Requirement.
7. Ownership and End-user licensing
7.1. Parties acknowledge and agree that Metrological shall not acquire any
ownership to any of the Apps, and Developer shall at all times be re-
sponsible for and have control over the Apps and Content.
7.2. Developer shall deliver to Metrological its own EULA for any App and
Content. This EULA must include and may not be inconsistent with the
minimum terms and conditions as specified in Annex A1 and must comply
with all applicable Legal Requirements. Metrological shall agree with
Operator Store Owners that Operator Store Owners shall notify each End-
user that the End-users use of Developer’s App and Content is subject
to the terms and conditions of Developer’s EULA and/or the end-user
license terms that Operator Store Owner may, as (sub)agent of Developer,
impose upon End-users on behalf of Developer. The right for Operator
Store Owner to impose end-user license terms on behalf of Developer
shall be restricted in such manner a that any such terms may not
deviate from the terms and conditions specified in Annex A1 in a manner
that is detrimental to Developer. Metrological does not accept any lia-
bility for the contents of the EULA provided by Developer, other than
the contents specified in Annex A1.
7.3. Developer hereby acknowledges that the EULA for each of the Apps and
the Content is solely binding between Developer and End-user.
8. Intellectual Property Rights
8.1. Developer and/or its third party suppliers are/is the owner of the
Intellectual Property Rights with respect to the Content and any other
information and materials provided to Metrological under the Agreement.
8.2. Developer hereby grants Metrological for the duration of the contract
term the non-exclusive and locally unrestricted right of use of the
Content. The right of use includes particularly the right to reproduce
and to publish the Content to the extent required to execute the obli-
gations under the Agreement. The right of use also includes unknown
types of use that might become essential for potential future services
under the Agreement.
9. Indemnification Developer shall indemnify, defend and hold harmless
Metrological as well as Operator Store Owners and the End-users from
any and all liability, suits, losses, damages, judgments and expenses
(including reasonable attorney fees) arising directly or indirectly out
of i) any claim by any third party that the making available, com-
munication to the public and/or reproduction of the Content in accor-
dance with the terms of this Agreement and the Developer’s EULA violates
the property rights of a third party, ii) any claim relating to the Con-
tent, quality or performance of the Content, including, but not limited
to, any damaging elements in the Content, or iii) any claim relating to
the withdrawal of the App. Metrological shall notify Developer if
Metrological becomes aware of any claim referred to under i), ii) or
iii). Metrological shall allow Developer to control the defense against
such claim.
10. Warranties
10.1. Developer warrants that it has during the term of the Agreement the
necessary rights to provide to Metrological the Content in order to
enable Metrological to provide the Services to Developer as well as to
comply with any other terms and conditions of these Terms and Condi-
tions, and the Agreement.
10.2. Developer warrants that it will ensure the uninterrupted supply of the
Content.
10.3. Developer warrants that it will secure any external data feeds.
10.4. Developer warrants that it will follow Metrological’s instructions
regarding the (technical) specifications of the App.
10.5. Metrological does not warrant to Developer that an Operator Store Owner
will select the App to be included in the Operator Store of such Opera-
tor Store Owner.
11. Liability
11.1. Metrological’s liability for damages arising out of or in any way
relating to the Agreement is limited to the maximum amount of
Metrological’s net revenue from the applicable App during the 3 months
period immediately preceding the event from which the damages arise.
11.2. In no event shall either Party be liable to the other for indirect
and/or consequential damages or purely financial loss such as missed
business opportunities, lost sales, volume and profit, and data loss
in connection with or arising out of the Agreement.
11.3. The limitations of liability referred to 11.1 and 11.2 shall not
apply : (i) In case any negligence on the part of the liable Party leads
to death or physical injury; (ii) in the event damages arise from the
willful misconduct or gross negligence of the liable Party and in the
event of a breach of article 10 (warranties).
11.4. Metrological shall not be liable for any consumer behavior regarding
Content or App(s) in whatever form.
12. Termination
12.1. Each Party may with immediate effect rescind the Agreement if:
12.1.1. the other Party is permanently unable to meet its obligations under
the Agreement;
12.1.2. the other Party’s bankruptcy has been requested or declared, or the
other Party’s suspension of payment has been requested or granted;
12.1.3. a considerable portion of the assets of the other Party has been
attached;
12.1.4. the other Party has its company liquidated or closed down for a
reason other than solvent amalgamation, reconstruction and/or
merger; or
12.1.5. the SDK License Agreement is terminated for whatever reason and
Metrological at its own discretion has decided that it will not
provide support for the App.
12.2. Each Party may rescind the Agreement at any time in the event of a
breach of the terms hereof by the other Party and such Party shall fail
to cure such breach within 30 days (or any other reasonable period as to
be determined by the non-breaching Party) after receipt of written
notice thereof.
13. Consequences of Termination
13.1. In the event of termination, Metrological will remove relevant App(s)
from the App Catalogue and, if applicable, any Operator Store.
14. Confidentiality
14.1. Each Party shall keep confidential and shall not without the other Par-
ty’s prior written consent copy or disclose to any third party any
document or information of a confidential nature acquired from the other
Party pursuant to the Agreement and such confidential documents and in-
formation shall only be used for the purpose of the Agreement, provided
however that nothing shall prevent either Party from disclosing infor-
mation which:
14.1.1. is in its possession with the full rights disclosed prior to
receiving it from the other Party;
14.1.2. is or later becomes public knowledge other than by breach of this
clause 13.1;
14.1.3. it may independently receive from a third Party with a full right
to disclose;
14.1.4. is developed independently of the information disclosed under this
clause; or
14.1.5. is required by law to be disclosed.
14.2. The Parties shall obtain the written approval of the other Party con-
cerning the content and timing of news releases, articles, brochures,
advertisements, prepared speeches and other information released con-
cerning the Agreement.
14.3. Each Party shall cause its employees to comply with the provisions of
this clause.
15. Data Protection
15.1. Developer acknowledges that all Personal Data stored within, processed
or conveyed in relation to the services belong to Metrological and
undertakes that no data shall be used or accessed by Developer or by any
of its employees for any purpose other than necessary or required for
the execution of the Agreement, subject to statutory provisions to the
contrary.
15.2. Developer may process and disclose the Personal Data for purposes con-
nected with the Agreement and the provision of services to the End-
users. To the extent a permit for the transfer of Personal Data outside
the European Union is needed Developer will cooperate with Metrological
in order to obtain such a permit.
15.3. The Parties agree that in respect of the Personal Data processed in con-
nection with the Agreement
15.3.1. Metrological retains the position of data controller (“verantwoorde-
lijke”) as defined in the Dutch Data Protection Act (“Wet
Bescherming Persoonsgegevens”), unless explicitly agreed otherwise.
Accordingly, Metrological shall solely determine the purpose for
which and the manner in which the Personal Data shall be processed
in connection with this Agreement, and
15.3.2. Developer shall be the data processor (“bewerker”) as defined in
the Dutch Data Protection Act.
15.4. Developer shall:
15.4.1. not disclose personal data to any person save to the extent (i) man-
datory under the Dutch Data Protection Act, (ii) necessary for the
proper performance of Developer's obligations under this Agreement
where such performance does not result in a breach of the Dutch
Data Protection Act, or (iii) with Metrological prior written con-
sent stating the nature of the disclosure and all details concern-
ing the disclosure provided the disclosure does not result in a
breach of the Dutch Data Protection Act.
15.4.2. be compliant with all procedures for protecting the personal data
against accidental or unlawful destruction or accidental loss,
alteration, unauthorized disclosure or access, such procedures to
be provided to Developer by Metrological.
15.4.3. only process personal data by order and on behalf of Metrological
and in accordance with Metrological’s instructions, subject to
statutory provisions to the contrary.
15.5. Developer shall indemnify Metrological against all third party claims,
including that of End-users, which may be filed against Metrological
because of violation of the Dutch Data Protection Act and/or any other
laws concerning Personal Data provided that Metrological shall forthwith
inform Developer in writing about the existence and substance of the
action at law and leave dealing with the case entirely to Developer,
including the reaching of amicable settlements.
15.6. Developer shall indemnify Metrological against all claims of third
parties, including government bodies, which may be filed against Metro-
logical because of a violation of a Legal Requirement provided that
Metrological shall forthwith inform Developer in writing about the
existence and substance of the action at law and leave the dealing with
the case entirely to Developer, including the amicable settlements.
16. Notices
16.1. Any and all notices or other information required or given by one Party
to the other shall be deemed sufficiently given when forwarded by pre-
paid registered mail, by facsimile or hand delivered to the other Party
at the following addresses:
Metrological Widgets B.V. To the attention of: Legal department
Postbus 635, 3000 AP Rotterdam The Netherlands
The contact information provided by Developer during the submission
process of the App as described in article 3 of these Terms and Con-
ditions.
16.2. Such notices shall be deemed to have been received 5 business days
after mailing if sent by registered mail, and following business day if
sent by email, facsimile or hand delivered.
17. Applicable law and Dispute resolution
17.1. These Terms and Conditions and the Agreement shall be governed by and
shall be construed in accordance with the laws of the Netherlands.
17.2. Any dispute, which may arise between Parties as a result of these Terms
and Conditions and/or the Agreement, shall be exclusively submitted to
the competent court in Rotterdam.
18. Assignment
18.1. The Agreement shall be binding upon and inure to the benefit of the
Parties thereto.
18.2. Both Developer and Metrological may not assign or subcontract any of its
obligations under the Agreement without the prior written consent of the
other party.
19. Force Majeure
19.1. In the event of force majeure Parties will be released from all its
obligations arising from the Agreement.
19.2. Under force majeure on the part of Parties shall be understood any in-
dependent circumstance that prevents compliance with the Agreement, be
it temporarily or permanently, including war, state of siege, the threat
of war, civil war, riot, strike, exclusion of workers, problems in
transport, fire, epidemics, quarantine, circumstances concerning the
weather, interruptions in the operations of Parties, also including mal-
functioning of the software or hardware of Parties, incomplete, overdue
delivery, if at all, from its suppliers and all obstructions caused by
actions from the government. All this regardless of whether the indepen-
dent circumstance was foreseeable upon entering into the Agreement.
20. Non waiver
The failure of either Party to give notice to the other Party of any
breach or non fulfillment of any provision, term or clause of these
Terms and Conditions and/or the Agreement shall not constitute a waiver
thereof, nor shall the waiver of any breach or non fulfillment of any
provision, term or clause hereof constitute a waiver of any other
provision, term or clause hereof.
21. Entire Agreement
21.1. These Terms and Conditions including its Annex(es) and the Agreement
including its Annex(es) set forth the entire agreement and understan-
ding between the Parties with respect to the subject matter hereof.
21.2. There are no understandings, representations, conditions, or warranties,
express or implied, statutory or otherwise, made or issued by the Par-
ties other than those expressly contained in these Terms and Conditions
and the Agreement
21.3. Any changes to the wording of these Terms and Conditions and/or the
Agreement require an Amendment in order to have a binding effect on
Parties.
Annex A1 to App Catalogue Terms and Conditions
Instructions for Minimum Terms and Conditions of Developer’s End-User License
Agreement
1. Definitions
For the purpose of the provisions hereunder, terms will have the meaning
as assigned to them by the App Catalogue Terms and Conditions between
Metrological and Developer, notwithstanding the following definition:
1. End-user is also referred to as “You”
2. “Content Provider” refers to Developer.
3. “EULA” refers to the End-user License Agreement between Developer and
End-user
Content Provider will agree as a minimum the following terms and con-
ditions with End-user in the EULA. Content Provider warrants that it
will not agree any terms and conditions with End-user that are in con-
flict with the Terms and Conditions and/or the Agreement, or with any
Legal Requirements.
2. Acknowledgement
You acknowledge that this EULA shall constitute an agreement with Con-
tent Provider and not with Metrological.
3. Scope of License
The EULA applies to the access and use by You of Content Services pro-
vided by Content Provider to You via an Operator Store.
4. Developer Name and Address
Content Provider must state in the EULA its name and address, and the
contact information (telephone number; E-mail address) to which any
End-user questions, complaints or claims with respect to Apps and/or
Content should be directed in the EULA.
5. Maintenance and Support
Content Provider agrees to be solely responsible for providing any
maintenance and support services with respect to its Apps and its Con-
tent.
6. Content Services
You and Content Provider agree that:
1. You acknowledge that Content Provider offers You the Content Services
in collaboration with third parties. You acknowledge that the form
and nature of the Content Services may change from time to time with-
out prior notice to You.
2. You shall use the Content Services only for purposes that are permit-
ted by this EULA and by any applicable law, regulation or generally
accepted practices or guidelines.
3. You agree to not access or attempt to access any of the Content Ser-
vices by any means other than through an Operator Store.
4. You agree that You will not engage in any activity that interferes
with or disrupts the Content Services (or the servers and networks
which are connected to the Content Services).
7. Content
You and Content Provider agree that:
1. You agree You may not modify, rent, lease, loan, sell, distribute or
create derivative works based on Content (either in whole or in part)