Bricknode Marketplace Vendor Agreement
Effective starting: 2017-03-20
This Bricknode Marketplace Vendor Agreement (this "Agreement") is between Bricknode Platform AB (company number 559040-5709) with primary place of business at Kanikegränd 3B, 541 34 SKÖVDE, SWEDEN) ("Bricknode") and you (if registering as an individual) or the entity you represent (if registering as a business) ("Vendor" or "you") as a vendor in the Bricknode Marketplace. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. Under this Agreement, you authorize Bricknode, among other things, to promote, resell, test and distribute Marketplace Add-ons (as defined below).
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the Bricknode Marketplace.
1. Introduction to the Bricknode Marketplace
The Bricknode Marketplace is a forum for software vendors who make Add-Ons for Bricknode applications to reach customers. Add-Ons can be developed in various ways and connected to Bricknode applications through the Bricknode API. As a vendor you may charge different types of fees for the usage of your applications and you can decide if customers may order your Add-Ons through Bricknode’s ordering and license management system (revenue sharing will apply) or directly from you (no revenue sharing will apply).
2. Key Definitions
2.1. “Bricknode Marketplace” or “Marketplace” means any location at which Bricknode makes available or lists Marketplace Add-ons, which may include http://marketplace.bricknode.com or any other webpage, application, mobile interface, service or user interface that allows for the discovery, download or purchase of Add-ons.
2.2. "Marketplace Add-ons" or "Add-ons" means the add-ons, extensions, plugins or other software that you deliver to Bricknode or make available through the Marketplace. "Add-ons" also include any New Versions.
2.3. "Marketplace Guidelines" means the terms, rules and policies that Bricknode makes available at http://api.finance setting forth requirements (as may be modified by Bricknode from time to time) for including your Marketplace Add-ons in the Bricknode Marketplace.
2.4. "New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Add-ons.
3. Using the Marketplace to Publish Your Add-Ons
3.1. Types of Add-ons. Currently, the Bricknode Marketplace allows you to offer the following types of listings for Marketplace Add-ons. You designate your listing type using your vendor account on the Bricknode Marketplace (subject to approval by Bricknode). The Add-ons are described further below:
3.1.1."Paid-via-Bricknode Add-ons" are Add-ons for which end users pay all fees to Bricknode (with Vendor receiving a Revenue Share as described in this Agreement).
3.1.2."Paid-via-Vendor Add-ons" are products for which users pay all fees to Vendor (not Bricknode). For these Add-ons, you provide your own logins directly to the end user. Depending on the settings you select, end users will either download these Add-ons directly from you or will be able to download the Add-ons from Bricknode before navigating to your website or otherwise contacting you directly to purchase licenses.
3.1.3.A "Similar Service" is any online distribution service or channel that makes Paid-via-Bricknode Add-ons available for sale, use or download to end users and/or channel partners, and includes any website or other distribution method operated by you.
This Section 4 (Financial Terms) shall only apply to Paid-via-Bricknode Add-ons.
4.1. List Price. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for all sales, licenses or subscriptions to your Paid-via-Bricknode Add-ons (the "List Prices"). You will determine the pricing for renewals, upgrades that add more licenses/users, New Versions and other support and maintenance, and academic and community licenses acquired through the Bricknode Marketplace ("Follow-on Sales"), all in accordance with its standard formulas and policies. Subject to Section 4.6 (Sales through Bricknode Resellers and Your Channel Partners), you agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Paid-via-Bricknode Add-on (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Bricknode Add-on available for sale through any Similar Service. You will update the List Price for each Paid-via-Bricknode Add-on as necessary to ensure that it meets the requirements of this Section 4.1.
4.2. Revenue Share. For each Sale, Bricknode will pay you an amount ("Revenue Share") equal to eighty percent (80%) of the amount received by Bricknode from the Sale. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Bricknode Add-on (or related content or services) through the Bricknode Marketplace, including any Follow-on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Bricknode has received final payment from or on behalf of an end user. If an Add-on is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. For purposes of clarity, in the event Bricknode refunds the applicable Sale amount (or a portion thereof) to an end user or a Bricknode Certified Expert (which you agree that Bricknode can do entirely in its own discretion), you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded.
4.3. Payment by Bricknode. Subject to the terms of this Agreement, approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, Bricknode will make available to you a report detailing Sales of Paid-via-Bricknode Add-ons and corresponding Revenue Share along with payment of the Revenue Share due in connection with such report. All payments will be made in the currency it was received from the customer. You agree to provide Bricknode with information on a valid bank account in your name, and Bricknode will make payments to that account via Electronic Funds Transfer ("EFT"). Bricknode is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least 5,000 SEK (or the equivalent in another currency). If Bricknode pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), Bricknode may offset the amount of the Revenue Share that Bricknode previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to Bricknode. Bricknode may also withhold and offset sums you owe to Bricknode against amounts that are payable to you. You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.3 are solely your responsibility. When this Agreement terminates, Bricknode may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure Bricknode's ability to offset any end user refunds or make any other offsets to which Bricknode is entitled.
4.3.1.Use of Certain Information. Bricknode shall only use your banking and payment information for purposes related to this Section 4 (Financial Terms). Bricknode shall not disclose your sales and related financial data to third parties. The foregoing sentence notwithstanding, Bricknode may use or disclose aggregated sales and other financial data related to the Bricknode Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
4.4. Taxes. Except as described in this Agreement, Bricknode is responsible for collecting and remitting any taxes imposed on sales of Paid-via-Bricknode Add-ons to end users. You are responsible for any income or other taxes due and payable resulting from Bricknode's payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. Bricknode maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from Bricknode, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
4.5. Sales through Bricknode Experts and Your Channel Partners. Bricknode has a network of partners who are authorized to resell licenses or subscriptions to Bricknode products (each, an "Bricknode Certified Expert" as described here). You hereby acknowledge that, unless you opt out from allowing Bricknode Certified Experts to resell your Paid-via-Bricknode Add-ons, Bricknode Experts will be entitled to purchase your Paid-via-Bricknode Add-on at a discount to the List Price for resale or provision to end users, with the amount of such discount determined at Bricknode's sole discretion, not to exceed twenty percent (20%) of the List Price. If you make your Paid-via-Bricknode Add-ons available to third party channel partners on a Similar Service at a discount to List Price, then continuing to provide such discount to such third party resellers will not violate Section 4.1 (List Price) above, provided such discount does not exceed the discount provided to Bricknode Certified Experts through the Bricknode Marketplace. If you opt out from allowing Bricknode Certified Experts to resell your Paid-via-Bricknode Add-ons, then you may not offer such products at a discount to List Price to third party channel partners on a Similar Service.
5. Your Content; License to Bricknode; End User Licensing
5.1. Delivery of Your Content. You will deliver Marketplace Add-ons to Bricknode on or prior to the initial availability date you designate for the Marketplace Add-on (the "Initial Availability Date"). Together with delivery of each Marketplace Add-on, you will also provide the following information and materials: (a) Marketplace Add-on title, Initial Availability Date, category, Vendor name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Marketplace Add-ons that Bricknode requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Marketplace Add-on that you wish to appear in connection with your Add-on; (c) any Vendor EULA (defined below); and (d) an XML descriptor of the Add-on ("XML Code") ((a), (b), (c) and (d) collectively being the "Product Information"). Together, the Marketplace Add-ons and Product Information are "Content".
5.1.1.Notwithstanding the foregoing, if Bricknode is not hosting the Add-on, then you are not required to deliver the Add-on itself to Bricknode. However, you must still deliver the XML Code and the rest of the Product Information to Bricknode pursuant to the preceding paragraph.
5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide Bricknode with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including Bricknode's Marketplace Guidelines (which are hereby incorporated into this Agreement). The Marketplace Guidelines may include (or reference) terms and conditions for creation or operation of Add-ons, such as policies for development of Add-ons for particular Bricknode products, Bricknode SDK usage terms, API call limitations for Cloud Add-ons or other integration requirements. You must comply with all such terms. Nonetheless, the express terms and conditions of this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or such included (or referenced) terms, but only with respect to the subject matter of this Agreement. In your activities under this Agreement, you also agree to comply with the Bricknode Acceptable Use Policy (as may be modified from time to time by Bricknode) (the "AUP").
5.4. License Grant to Bricknode. You hereby grant Bricknode, during the Term (and thereafter in accordance with Section 10 (Term and Termination)), the nonexclusive, royalty‐free (subject to payment of any applicable Revenue Share), worldwide right and license:
5.4.1.to resell, distribute or make available (including via download), as applicable, the Marketplace Add-ons through the Bricknode Marketplace to end users (either directly or, unless you opt out, through Bricknode Certified Experts) by all means of electronic distribution available now or in the future, except that this Section 5.4.1 shall not apply to (i) Paid-via-Vendor Add-ons that you choose to make available for download directly from your website instead of from Bricknode and (ii) Free Add-ons available for download only from your own website;
5.4.2.to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the Bricknode Marketplace and (ii) listings for your Add-ons, these rights also apply to exploitation of the XML Code in connection with Bricknode making available the relevant Bricknode Product; and
5.4.3.otherwise to use, store, copy and distribute your Content for testing and evaluation purposes; for Bricknode's use internally, in object code format (which Bricknode agrees not to decompile or reverse engineer), within the scope for which the Add-On's use is reasonably intended ("Internal Use License"); for purposes of exercising Bricknode's rights and fulfilling Bricknode's obligations hereunder; and for purposes of enforcing this Agreement and the Marketplace Guidelines. Vendors may opt out of the Internal Use License by giving Bricknode notice thereof to email@example.com.
5.5. License Clarifications. The licenses granted to Bricknode in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, consistent with Section 10 (Term and Termination), after the Term to retain one or more electronic copies of each Marketplace Add-on and its associated Product Information and allow and downloads and re‐downloads of and access to Marketplace Add-ons by end users (either directly or through Bricknode Certified Experts), and (iii) are granted under all applicable intellectual property rights (including patent rights).
6. Delivery Commitments and End User Responsibilities
6.1. Delivery Commitment. You will deliver electronically to Bricknode (and continue to make available during the Term) all versions of Marketplace Add-ons (i) that have been designed to integrate or interface with one or more Bricknode products through an internal programming interface ("APIs") made available by Bricknode for this purpose, (ii) for which you have the rights required under this Agreement, and (iii) that are the same versions and editions (except as otherwise provided in this Agreement) that you or your affiliates make available directly or indirectly through any Similar Service. You will deliver any New Versions to the Marketplace Add-ons, together with any related Product Information, as soon as they are available. For Paid-via-Bricknode listings, the Initial Delivery Date and the date of delivery of any New Versions must be no later than the first date you permit the corresponding version of the Marketplace Add-on to be listed for sale on any Similar Service. As mentioned above, if Bricknode is not hosting an Add-On, then you are not required to deliver the Add-On itself to Bricknode.
6.1.1.You must also deliver all Product Information to Bricknode and make the Add-On (including any New Versions) available to Bricknode and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-Ons.
6.2. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end user customers for your Marketplace Add-ons during normal business hours. You will provide to Bricknode a current email address to which Bricknode may direct inquiries from users regarding your Marketplace Add-ons. You are solely responsible for providing all support for your Marketplace Add-ons, and for providing to users of your Marketplace Add-ons all information necessary for their use of your Marketplace Add-ons. At a minimum you agree to respond within 24 hours to any support request that Bricknode identifies as critical, and in all other cases within five business days of request from an end user or Bricknode. Notwithstanding the foregoing, you are not obligated to provide support for Free Add-ons.
7. Reservation of Rights
Subject to the rights granted in this Agreement and Bricknode's ownership of certain software, APIs, documentation and related materials (the "Bricknode Materials") to which Bricknode provides you access, as between you and us, you retain all right, title and interest in and to Content that you deliver to us. Subject to your rights in such Content, Bricknode retains all right, title and interest in and to the Bricknode Marketplace, Bricknode Materials, Bricknode applications and other Bricknode products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any binary code used in connection with the Bricknode Marketplace, including any Bricknode Materials that Bricknode provides you. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of Bricknode or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to Bricknode, the Bricknode Marketplace, or Bricknode's product or services, or (3) by Bricknode or on behalf of Bricknode. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue Bricknode or the Marketplace.
8.2. Bricknode Marketplace Operations. Bricknode maintains sole discretion to determine all features and operations of the Bricknode Marketplace. You acknowledge that Bricknode has no obligation to promote, distribute, list or offer for Sale any Marketplace Add-on, or to continue to do so. With respect to Paid-via-Bricknode Add-ons only, Bricknode is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the Bricknode Marketplace will be processed by Bricknode's payment systems and will be subject to the Revenue Share terms above. Bricknode will have sole ownership and control of all Sales and other data Bricknode obtains from end users in connection with the Bricknode Marketplace, but will make available certain End User Data to you, subject to Section 8.3.
8.3. End User Data and Privacy‐Related Obligations. In addition to sales data related to your Paid-via-Bricknode Add-ons, Bricknode will provide you with access to certain information provided to Bricknode by end users of your (a) Paid-via-Bricknode Add-ons and (b) Free Add-ons available through the Bricknode Marketplace, including end user name, company name (if any), physical or email addresses, and phone numbers ("Bricknode-Collected End User Data"). Based on the activities under this Agreement, subject to the provisions of this Section 8.3, you may also collect other information or data from end users, some of which may include personally identifiable information ("Vendor-Collected End User Data"). Any end user data or information, whether Bricknode-Collected End User Data or Vendor-Collected End User Data, is, collectively "End User Data". For all End User Data you will (i) use and authorize others to access and use the End User Data only for the purposes of providing and improving the functionality and user experience of your Marketplace Add-on(s), marketing your Marketplace Add-on to end users or such other purposes expressly permitted by the end user (in each case, in compliance with all Laws), and not modify any End User Data in a manner that adversely affects it integrity, and (ii) treat, store, transmit, disclose and use the information only in accordance with applicable privacy notices and laws, rules, regulations, orders, and other requirements of governmental agencies (together, "Laws"). Without limiting the foregoing and with respect to Vendor-Collected End User Data, you shall (x) provide legally adequate privacy notices to each end user and obtain all necessary consents under Law and (y) notify end users that Bricknode is not responsible for the privacy, security or integrity of Vendor-Collected End User Data. You shall also maintain and handle all of the End User Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable Laws. For the sake of clarity, Bricknode shall not be liable for or have any responsibility in connection with Vendor-Collected End User Data.
8.4. Feedback. "Feedback" means any feedback, comments, suggestions, ideas, description of processes or other information that you may provide to Bricknode from time to time about or in connection with Bricknode Marketplace, including any ideas, concepts, know-how or techniques contained therein. You hereby grant Bricknode a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Bricknode Marketplace or any Bricknode products, applications or services. You agree that Bricknode may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise.
8.5. Aggregated Information. In addition to Bricknode's other rights, Bricknode may collect aggregated information regarding the Bricknode Marketplace and Marketplace Add-ons (excluding any personally identifiable information), including through the use of third party analytics tools such as Google Analytics ("Aggregated Information") and may exploit and use the Aggregated Information for any purpose without restriction.
9. Bricknode Control of Marketplace
9.1. Bricknode may determine in its sole discretion to make available or list any Marketplace Add-on through the Bricknode Marketplace. Bricknode may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace Add-on in the Bricknode Marketplace does not relieve you of responsibility to ensure the Marketplace Add-on complies with this Agreement or to perform other obligations under this Agreement.
10.1. Term. The term of this Agreement (the "Term") will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or Bricknode terminates it.
10.2. Termination Rights. Either Bricknode or you are entitled to terminate this Agreement and access to your account (and/or this Agreement with respect to any particular Add-on(s)) with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (a) 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, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party's intellectual property rights.
10.2.1. Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by Bricknode at the time), Bricknode may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Add-ons) under the following circumstances: (1) Bricknode ceases to operate the Marketplace, (2) you violate Bricknode's AUP, or (3) Bricknode determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to Bricknode or any third party or otherwise harm the Marketplace or other Marketplace vendors or users.
10.3. Transition. Following any termination or expiration of this Agreement or withdrawal of your Add-on from the Marketplace, in Bricknode's discretion, (a) Bricknode may continue to fulfill any end user orders for Add-ons pending as of the date the termination takes effect, and (b) Bricknode will use reasonable efforts to take down the listing for your Add-on within forty-five (45) days after termination (the "Transition Period"), but in any event Bricknode may continue to make available Paid-via-Bricknode Add-ons for further access, downloads or re‐downloads by existing end users of those Add-ons for the duration of the end user's license or subscription to the Add-on.
10.3.1. If you are a vendor of Paid-via-Bricknode Add-ons, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible doing the following, consistent with Bricknode's guidance and instructions:
10.3.1.1. making the Add-on (including any New Versions) available to Bricknode and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-ons,
10.3.1.2. taking all actions necessary to move existing end users to your non-Bricknode license mechanism, including, as applicable: (a) contacting customers and providing access, installation and migration instructions, and equivalent license terms and keys; and/or (b) providing customers with data migration tools and migration assistance,
10.3.1.3. arranging for ongoing support and maintenance (including New Versions) for your Add-ons for all end users who have purchased such rights, and
10.3.1.4. communicating such matters accurately and in a positive and professional manner to end users. If specified by Bricknode, the Transition Period may commence upon a notice of termination rather than the effective date of termination. For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Add-on to Bricknode for distribution under this Agreement thereafter, but Bricknode's post-termination rights in this paragraph will apply for the latest version of the Add-on you provided to Bricknode hereunder (and any prior version).
10.4. Effect of Termination; Survival. Unless otherwise specified by Bricknode: (a) all EULAs and associated end user licenses and subscriptions to Add-ons will survive termination or expiration of this Agreement in accordance with their terms and (b) Vendor will continue to host and operate any Add-ons for use by end users at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-Ons. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional Bricknode Marketplace Terms), and 10 (Term and Termination) through 19 (General).
11. Representations and Warranties
You represent, warrant and covenant that:
11.1. You are at least 18 years of age and are able to form a legally binding contract. If Vendor is a business or other legal entity and not an individual, then the individual entering into this Agreement on Vendor's behalf represents that he or she has all necessary legal authority to bind Vendor to this Agreement;
11.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
11.3. Before providing Bricknode any Content or listing Content in the Bricknode Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
11.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
11.5. You will immediately notify Bricknode if you unexpectedly lose any IP rights related to your Marketplace Add-ons or become aware of a third party claim related to these rights;
11.6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, and will not cause injury to any person or damage to any property; and
11.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of a Vendor EULA) based on your use of third party "open source" software or other third party intellectual property in any Add-on. You will also promptly make available to Bricknode, end users and any other third party that is entitled to it, the source code corresponding to any Add-on or portion thereof if and in the manner required by applicable third party terms and conditions. Bricknode's exploitation (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
12.1. By Bricknode. Subject to the terms and conditions of this Agreement: (1) Bricknode shall defend a Vendor of a Paid-via-Bricknode Add-on from claims by third parties alleging that the Bricknode Marketplace or API's used in connection with such Add-on infringes such third party's copyright or trademark and (2) Bricknode shall pay damages finally awarded by a court of competent jurisdiction against such Vendor for such a claim or, if Bricknode settles the claim, the settlement amounts. Bricknode's obligations in this Section 12.1 apply only to the Bricknode Marketplace and APIs themselves and not to any Marketplace Add-ons, other Bricknode products or services, or other third party content hosted on or used with the Bricknode Marketplace and APIs, and in any case Bricknode's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the Bricknode Marketplace or APIs. As a condition to Bricknode's obligations under this Section 12.1, you must provide Bricknode (i) prompt written notice of the claim (and in any event notice in sufficient time for Bricknode to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 12.1 sets forth Bricknode's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
12.2. By You. You will indemnify, defend and hold Bricknode and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of any claim relating to any Content or the use of Content (including any claims made by or arising from end users), or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a "Claim," and collectively, the "Claims"). You will not consent to the entry of a judgment or settle a Claim without Bricknode's prior written consent, which may not be unreasonably withheld. If you do not promptly assume and conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then Bricknode may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 12.2 are independent of your other obligations under the Agreement.
13.1. Definition. All information disclosed by Bricknode that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is "Confidential Information". Confidential Information includes non-public aspects of the Bricknode Marketplace and Bricknode's applications; non-public aspects of third-party applications listed in the Bricknode Marketplace to which you obtain access as a result of the relationship between you and Bricknode under this Agreement; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and Bricknode under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to your before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Bricknode or anyone else.
13.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide Bricknode with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Bricknode's cost, if Bricknode wishes to contest the disclosure.
13.3. Injunctive Relief. In event of actual or threatened breach of this Section 13, Bricknode shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
14. Information You Provide Is Not Confidential
14.1. You understand and agree that Bricknode develops its own products and services and works with many other vendors and developers, and either Bricknode or these third parties could in the future develop (or already have developed) products similar to yours.
14.2. You should not provide to Bricknode any information that you consider confidential and you agree that Bricknode is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement. You expressly agree that neither this Agreement nor your participation in the Marketplace limits Bricknode's right to develop or have developed for it products, concepts, systems or techniques that are similar to or compete with any Marketplace Add-on or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to Bricknode. For clarity, however, this paragraph, in itself, does not grant Bricknode any license under your intellectual property rights.
15. Bricknode Trademarks/Publicity
15.1. You will: (i) only use the Bricknode Marks in the form and manner as set forth in the Trademark Guidelines and only in connection with the sale of your Marketplace Add-ons in the Bricknode Marketplace; (ii) not register any domain names that contain any terms that are the same or similar to any Bricknode Marks; and (iii) upon expiration or termination of this Agreement for any reason, immediately cease all use of the Bricknode Marks, unless you are otherwise authorized to continue using the Bricknode Marks pursuant to a separate written agreement with Bricknode. "Bricknode Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by Bricknode. Nothing contained herein shall grant you any ownership right in the Bricknode Marks.
16. Disclaimers and Limitations of Liability
16.1. Disclaimer of Warranties. THE BRICKNODE MARKETPLACE AND ANY BRICKNODE MATERIALS ARE PROVIDED "AS IS" AND BRICKNODE EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
16.2. Limitations of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 ABOVE: (A) NEITHER YOU NOR BRICKNODE SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR BRICKNODE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BRICKNODE MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED BRICKNODE'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, "BRICKNODE'S MARGIN" MEANS THE AMOUNTS RECEIVED BY BRICKNODE FROM SALES OF YOUR ADD-ONS, MINUS THE REVENUE SHARE BRICKNODE HAS PAID YOU.
16.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
17.1. This Agreement relates to the broader Bricknode Marketplace, which will change over time. Bricknode reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective thirty (30) days after notice. Bricknode will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If you do not agree to any of the proposed changes, you may terminate this Agreement prior to the date on which the changes were to take effect by (i) providing written notice to Bricknode and (ii) terminating this Agreement and withdrawing all of your Add-ons from the Marketplace. If you so terminate the Agreement, the proposed changes will have no effect on you. However, if you do not so terminate then your continued participation in the Bricknode Marketplace after changes to this Agreement take effect will constitute your acceptance of the changes.
18. Dispute Resolution; Governing Law
18.1. Governing law and jurisdiction. This agreement is governed by Swedish law. Each Party submits to the jurisdiction of the Swedish courts for all purposes relating to this agreement
19.1. This Agreement may not be amended except in writing signed by both parties or as provided in Section 17 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word "including" will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors. Each party will bear its own costs and expenses in performing this Agreement. Bricknode's failure to enforce any provision of this Agreement will not constitute a waiver of Bricknode's rights to subsequently enforce the provision. Bricknode may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Bricknode's affiliates, contractors and service providers may exercise all rights of Bricknode under this Agreement, including Bricknode's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Bricknode's prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give Bricknode written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that Bricknode determines that such assignment is to a competitor of Bricknode, Bricknode may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by Bricknode via email or via a posting in the Marketplace Guidelines, or (ii) by you via email to firstname.lastname@example.org or to such other email or physical addresses as Bricknode may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.