In short...

  1. You must have complete rights to the code you're submitting.
  2. You have to provide support to your customers for at least 30 days.
  3. You must provide support within 48 hours of the ticket being created.
  4. Our refund policy is: the thing will work and the thing will do what it says. It's up to you to work with your customers though our support system to resolve these issues. You can offer them a refund if you'd like at any point. 
  5. If they can't install it, it doesn't work, and they're not getting help out of you, we will grant them a refund and you're not getting paid.
  6. You have to leave enough credit in your concrete5 account at any time to cover that period of approval.
  7. If you're going to be unable to provide support for some reason, you need to let us know so we can make other arrangements.
  8. You must have $100 in your account to request withdrawl. 
  9. PLEASE DON'T sell your add-on or theme elsewhere. We're not going to keep you from doing this legally (as Apple's store does) but just be clear, that totally screws us over and negates any value we've helped you create. 

The actual agreement:

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DEVELOPING APPLICATIONS FOR THE CONCRETE5.ORG MARKETPLACE. THIS DOCUMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN DEVELOPER AND CONCRETE.

 

CONCRETE5.ORG MARKETPLACE APPLICATION DEVELOPER AGREEMENT

 

Parties; Scope. This Concrete5 Application Developer Agreement (this “Agreement”) is between the Developer described on the Application Developer registration screen ("Developer") and Concrete CMS, Inc. dba Concrete5, an Oregon corporation ("Concrete") with respect to one or more software and/or browser based applications (the “Application(s)”) submitted to Concrete5 for listing (if accepted) on the Concrete5.org Marketplace (the “Marketplace”).   The Application(s) are to be used by Concrete5 users as add-on modules to the open-source Concrete5 Content Management System Software (“Concrete5 Software”).

 

The Application(s) submitted by the Developer consists of one or more of the following:  (a) application software in object code form (the "Application Software"), which contains a graphical user interface; (b) services used by the Application(s) to access information or content from third party sources and other information via the internet ("Application Services"); and (c) database and/or storage of data or application information (the "Server Software and Data”).   Developer has asked Concrete to review and, if accepted, distribute the Application.  Concrete is willing to do so subject to Developer’s acceptance of this Agreement, and any other attachments and schedules.

 

Revisions to Prices and Other Terms. Concrete may, at its sole discretion, change any term of this Agreement by providing notice to Developer. Those changes will be effective on the later of (a) the first day of the next calendar month or (b) 30 days, following the date of notice. Developer agrees that failure of the Developer to make a written request for removal of its Application(s) during the notice period constitutes acceptance of those changes.

 

Entire Agreement; Amendments.   This Agreement replaces and supersedes all prior and contemporaneous proposals, understandings and agreements, written, electronic or oral, as well as all other communications between Developer and Concrete concerning the subject matter of this Agreement. To the extent any proposal, invoice, acknowledgement, confirmation or any other document issued by Concrete after the Effective Date contains any terms that are inconsistent with, in additional to, or different from, those in this Agreement, those terms will be deleted and the terms of this Agreement will control unless (a) that document expressly references the section of this Agreement to be amended; and (b) a duly authorized representative of each party signs that document.

CONCRETE5 SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION, MODIFICATION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.


 

 

STANDARD TERMS AND CONDITIONS

1.   Purpose. Developer would like to develop one or more Applications (as defined below) for use by Concrete5 Software users, to be distributed by the Marketplace.  Concrete is willing to grant Developer limited access to the Marketplace to distribute the Application subject to the terms and conditions set forth in this Agreement.  Applications developed under this Agreement can be distributed in two ways: (1) through the Marketplace (if selected by Concrete5), and (2) on a direct basis by Developer to Concrete5 Software users. Applications that meet Concrete's Developer Requirements (below) may be submitted for consideration by Concrete for distribution via the Marketplace.  If requested by Developer, an Application approved by Concrete (a “Qualified Application”), will be distributed through Marketplace.  Distribution of free (no charge) Applications, as well as Applications sold for a fee, will be subject to the terms and conditions of this Agreement.

 

2. Ownership. Concrete retains all rights, title, and interest in and to Concrete5 Software platform and any updates thereto it may make available to Developers under this Agreement or under the Standard Concrete5 Open Source License (the “Concrete5 MIT”).  Developer agrees to cooperate with Concrete to maintain Concrete's ownership of Concrete5 Software, and, to the extent that Developer becomes aware of any claims relating to Concrete5 Software, Developer agrees to use reasonable efforts to promptly provide notice of any such claims to Concrete. The parties acknowledge that this Agreement does not give Concrete any ownership interest in the Application(s).

 

3. Updates; No Support or Maintenance.  Concrete may extend, enhance, or otherwise modify Concrete5 Software or services at any time without notice, and Concrete shall not be obligated to notify Developer with any changes to Concrete5 Software.  If updates are made available by Concrete, the terms of Concrete5 MIT will govern such updates, unless the update is accompanied by a separate developer agreement in which case the terms of that agreement will govern. Concrete is not obligated to provide any maintenance, technical or other support for Concrete5 Software or services.  Developer acknowledges that Concrete has no express or implied obligation to announce or make available any updates to Concrete5 Software or to any services to anyone in the future. Should an update be made available, it may have APIs, features, services or functionality that are different from those found in the current version of Concrete5 Software in use at the time an Application is submitted for approval.

 

4. Application Submission and Selection

4.1 Submission to Concrete.  Developer may submit Application(s) for consideration by Concrete for distribution via the Concrete5.org website at any time.  By submitting an Application, Developer represents and warrants that the Application complies with the Developer Requirements then in effect.  Developer further agrees that Developer will not attempt to hide or obscure any features, content or functionality in submitted Applications from Concrete's review or otherwise hinder Concrete from being able to fully review such Application(s).  Developer agrees to cooperate with Concrete in this submission process and to answer questions and provide information and materials in connection with a submitted Application, as reasonably requested by Concrete, including, without limitation, to provide Concrete with access to or with samples of physical devices that connect to the Application.  For both functionality and content submissions, Developer must provide the name, text description, price, unique identifier number, and other information that Concrete reasonably requests (collectively, the "Submission Description") to Concrete.  In the case of Applications that serve content (except themes), the actual content will not have to be submitted to Concrete, unless requested by Concrete.  Concrete reserves the right to review the actual content of the Submission Description at any time, including, but not limited to, in the submission process and after approval of the Application by Concrete. Concrete reserves the right to withdraw its approval of content previously approved, and Developer agrees to stop making such content available for use within the Application.  For avoidance of doubt, all content and functionality delivered through the Marketplace is subject to the Developer Requirements for Applications. Further, if the Application is accepted for distribution via the Marketplace, Developer agrees that Concrete may use the Application for the limited purpose of compatibility testing of the Application with Concrete5 Software, for finding and fixing bugs in the Concrete5 Software and for purposes of providing other information to Developer (e.g. crash logs).

4.2 Selection by Concrete for Distribution.  Developer understands and agrees that Concrete may, in its sole discretion: (a) submit the Application for peer review to third party developers selected by Concrete, AND/OR conduct an internal review, to determine if the Application meets the Developer Requirements then in effect; (b) reject the Application for distribution for any reason, even if the Application meets the Developer Requirements; or (c) select and distribute the Application via the Marketplace.  Concrete shall not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities Developer may incur as a result of developing an Application, use of Concrete5 Software, use of any services, including without limitation the fact that the Application may not be selected for distribution via the Marketplace.  Developer will be solely responsible for developing Applications that are safe, free of defects in design and operation, and comply with applicable laws and regulations.  Developer will also be solely responsible for any documentation and end user customer support and warranty of the Application(s). The fact that Concrete may have reviewed, tested, approved or selected an Application will not relieve Developer of any of these responsibilities.

 

5. Concrete Approval.   All Applications must be approved by Concrete to be distributed through the Marketplace.  If Applications require licensing and or transfer of key codes, such licensing terms will not purport to require Concrete (or its agents) to participate in the licensing process (beyond the standard distribution of Marketplace), and Concrete5 will not be responsible for making available any of the keys, authorization codes, methods, procedures, data or other information related to the security of applications.  Further, Concrete will not in any way be responsible for maintaining or protecting any intellectual property rights or copyrights for the Application(s).

 

6. Distribution.  Applications developed under this Agreement may be distributed in two ways: (1) through the Marketplace, if selected by Concrete, and (2) distribution for use directly to end users by Developer.

6.1 Marketplace Distribution.  If a Qualified Application is designated by Developer as a free application, OR Developer charges end users a fee of any kind for a Qualified Application, it is eligible for delivery to end users via the Marketplace. Developer hereby appoints Concrete as Developer’s legal agent pursuant to the terms of Schedule 1. 

6.2 Direct Distribution.  While concrete strongly encourages distribution of Applications through the Marketplace, largely to maintain consistency of end user experience, subject to the terms and conditions of this Agreement, Developer may also distribute Applications directly to individual users.  Concrete is not responsible for and licensing, charges, fees or enforcement of terms of use in the case of such direct distribution.  Concrete shall not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities Developer may incur as a result of distributing Applications in this manner, or for Developer’s failure to adequately manage, limit or otherwise control the access to and use the Application(s).  Developer will be solely responsible for all user assistance, warranty and support of Developer’s Applications.

 

7. Revocation.  Developer understands and agrees that Concrete may cease distribution of Application(s) and/or Content at any time at its sole discretion.

 

8. Confidentiality

8.1 Information Deemed Concrete Confidential.  Concrete may from time to time share confidential information with Developer.  This information is defined as any information not freely available in the public domain or published on Concrete5.org.  Developer also agrees any terms and conditions contained in this Agreement and the terms and conditions of Schedule 1 will be deemed "Concrete Confidential Information". Notwithstanding the foregoing, Concrete Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of Developer, (ii) information that is generally made available to the public by Concrete, (iii) information that is independently discovered by Developer without the use of any Concrete Confidential Information, or (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to Developer without limitation.

8.2 Obligations Regarding Concrete Confidential Information.   Developer agrees to protect Concrete Confidential Information using at least the same degree of care that Developer use to protect its own confidential information of similar importance, but no less than a reasonable degree of care. Developer agree to use Concrete Confidential Information solely for the purpose of exercising Developer’s rights and performing Developer’s obligations under this Agreement and agree not to use Concrete Confidential Information for any other purpose, for Developer’s own or any third party's benefit, without Concrete's prior written consent. Developer further agree not to disclose or disseminate Concrete Confidential Information to anyone other than: (i) those employees and contractors, who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the Concrete Confidential Information; or (ii) except as otherwise agreed or permitted in writing by Concrete. Developer may disclose Concrete Confidential Information to the extent required by law, provided that Developer take reasonable steps to notify Concrete of such requirement before disclosing the Concrete Confidential Information and to obtain protective treatment of the Concrete Confidential Information. Developer acknowledges that damages for improper disclosure of Concrete Confidential Information may be irreparable; therefore, Concrete is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.

8.3 Information Submitted to Concrete Not Deemed Confidential.  Concrete works with many application and software developers and some of their products may be similar to or compete with Developer’s Applications. Concrete may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Concrete cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that Developer may provide in connection with this Agreement or the Program, including information about the Application(s) and Application information (such disclosures will be referred to as "Developer Disclosures"). Developers agree that any such Developer Disclosures will be non-confidential. Concrete will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating Developer.  Developer releases Concrete from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures. Any physical materials Developer submits to Concrete will become Concrete property and Concrete will have no obligation to return those materials to Developer or to certify their destruction.

8.4 Press Releases and Other Publicity.   Developer may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Concrete's express prior written approval, which may be withheld at Concrete's discretion.

 

9. Indemnification.  To the extent permitted by law, Developer agrees to indemnify, defend and hold harmless Concrete, its directors, officers, employees, independent contractors and agents (each an "Concrete Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys fees and court costs) (collectively "Losses") incurred by Concrete and its employees, consultants and affiliates as a result of: Developer’s breach of this Agreement; a breach of any certification, covenant, representation or warranty made by Developer in this Agreement; any claims that Developer’s Applications or the distribution, sale, offer for sale, use or importation of the Application(s) (whether alone or as an essential part of a combination), Application Information or metadata violate or infringe any third party intellectual property or proprietary rights; any claims arising out of Concrete's permitted use, promotion or distribution of Developer’s Application(s), Content, related trademarks and logos, or images and other materials that Developer provides to Concrete at Concrete's request; and/or otherwise related to or arising from Developer’s use of Concrete5 Software or services, Developer’s Application(s), or Developer’s development and distribution of Applications.   Developer acknowledges that neither Concrete5 Software nor any services are intended for use in the development of Applications in which errors or inaccuracies in the content, data or information provided by the Application or the failure of the Application, could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, Developer hereby agree to indemnify, defend and hold harmless Concrete and its employees, consultants and affiliates from any Losses incurred by such Concrete Indemnified Party by reason of any such use.  In no event may Developer enter into any settlement or like agreement with a third party that affects Concrete's rights or binds Concrete in any way, without the prior written consent of Concrete.

 

10. Term and Termination

10.1 Term  The Term of this Agreement shall extend until the one (1) year anniversary of the original activation date of Developer’s Concrete5.org account registration ("Effective Date"). Thereafter, subject to Developer’s compliance with the terms of this Agreement, the Term will automatically renew for successive one (1) year terms, unless sooner terminated in accordance with this Agreement.

10.2 Termination.  This Agreement and all rights granted by Concrete hereunder and any services provided hereunder will terminate, effective immediately upon notice from Concrete.  Termination can be made for any breach of this Agreement, at any time, at Concrete’s complete and total discretion, or for any reason or no reason.  Developer may terminate this Agreement for its convenience, for any reason or no reason, effective 5  days after providing Concrete with written notice of its intent to terminate.

 

10.3 Effect of Termination.   Upon the termination of this Agreement for any reason, Developer agrees to return or destroy all Concrete Confidential Information in Developer’s possession or control. At Concrete's request, Developer agrees to provide written certification of such destruction to Concrete. The provisions of Sections 8, ­­­­­9 and 17 will survive any termination of this Agreement. Concrete will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Concrete may have, now or in the future.

 

11. NO WARRANTY.  Concrete5 Software may contain inaccuracies or errors that could cause failures or loss of data and it may be incomplete and cause failures of the Application.

 

DEVELOPER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF CONCRETE5 SOFTWARE ANY SERVICES IS AT DEVELOPER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.  CONCRETE5 SOFTWARE AND ANY SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CONCRETE AND CONCRETE'S AGENTS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CONCRETE5 SOFTWARE, SECURITY SOLUTION, SERVICE-RELATED SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CONCRETE DOES NOT WARRANT AGAINST INTERFERENCE WITH DEVELOPER’S ENJOYMENT OF CONCRETE5 SOFTWARE OR SERVICES, THAT CONCRETE5 SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF CONCRETE5 SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS OR ERRORS IN CONCRETE5 SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT CONCRETE5 SOFTWARE OR SERVICES WILL BE COMPATIBLE WITH FUTURE CONCRETE PRODUCTS, SERVICES OR SOFTWARE, OR THAT ANY INFORMATION STORED OR TRANSMITTED THROUGH ANY CONCRETE5 SOFTWARE OR SERVICES WILL NOT BE LOST, CORRUPTED OR DAMAGED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONCRETE OR A CONCRETE AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SHOULD CONCRETE5 SOFTWARE OR SERVICES PROVE DEFECTIVE, DEVELOPER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

 

Any Application using location data provided by any Application Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Concrete does not guarantee the availability, accuracy, completeness, reliability, or timeliness of location data or any other data or information displayed by any Application Services.


12. Notices. All notices required or permitted under this Agreement may be (a) sent by e-mail; (b) deposited in the mail and sent first class certified, return receipt requested; (c) sent via a recognized overnight courier service; or (d) delivered in person, in each case to the address set forth in the Developer’s registration contact information on Concrete5.org. Properly addressed e-mail notices will be deemed notice for all purposes for which notice may be required and will be deemed received the business day after transmission. Properly addressed first class certified mail will be deemed received three business days after it is deposited in the mail. Properly addressed notices sent by overnight courier or delivered in person will be deemed received when personally delivered to the intended recipient or to a person with apparent authority to receive such delivery on behalf of the intended recipient.

 

13. Third Party Notices. Portions of Concrete5 Software or services may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Concrete5 Software and services, and Developer’s use of such material is governed by their respective terms.

 

14. Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, terrorism, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or its employees, agents or contractors; provided, however, that lack of funds will not be deemed to be a reason beyond a party's reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a delay in the performance of its obligations under this Agreement.

 

15. General Legal Terms

15.1 Relationship of Parties. Except for the agency appointment as specifically set forth in Schedule 1 (if applicable), this Agreement will not be construed as creating any other agency between Developer and Concrete, and Developer will not represent to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties.

15.2 Independent Development. Nothing in this Agreement will impair Concrete's right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, Applications, Licensed Applications or any other products or technologies that Developer may develop, produce, market, or distribute.

15.3 Assignment. Developer may not assign or otherwise transfer, whether voluntarily or by operation of law, this Agreement or any of its rights or obligations under this Agreement without Concrete's prior written consent.
15.4 Governing Law; Jurisdiction; Attorney Fees. This Agreement will be construed and interpreted according to the laws of the State of Oregon without respect to its conflict of laws principles, except that in no event will this Agreement or any disputes between the parties related to the Application or Documentation be construed, interpreted or governed by the Convention for the International Sale of Goods. All disputes relating to this Agreement will be heard exclusively in the state courts of Multnomah County, Oregon or in the federal courts of the District of Oregon, and each party consents to the jurisdiction of those courts. If any arbitration, suit, action or other proceeding (including under the US Bankruptcy Code) is initiated in connection with any controversy arising out of this Agreement or if either party becomes the subject of any bankruptcy proceeding, the prevailing party in that arbitration, action or proceeding, and in any appeal, will be entitled to its reasonable attorney, paralegal, accountant and other expert fees, and all other fees, costs and expenses actually incurred, in addition to any other relief to which it may be entitled by law.
15.5 WAIVER OF JURY TRIAL. To the fullest extent permitted by law, both parties waive any right to trial by jury in any proceeding in connection with this Agreement.
15.6 Waiver; Severability. The waiver by either party of any breach or right under this Agreement must be in writing and any such waiver will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from the remainder of this Agreement, which will remain in full force and effect unless enforcement of this Agreement without the invalid or unenforceable clause would be grossly inequitable under the circumstances or would frustrate the primary purpose of this Agreement.
15.7 Headings; Interpretation. The paragraph headings in this Agreement are for convenience of reference and will not limit or otherwise affect the interpretation of any provision of this Agreement. The words "includes" and "including" are not limited in any way and mean "includes or including without limitation." The word "person" includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. The term "and/or" means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. Both parties have had the opportunity to have this Agreement reviewed by their attorneys; therefore, any ambiguous provision will not be construed for or against either party. To the extent any provision of this Agreement conflicts with the terms of any other agreement, exhibit or attachment, the terms of this Agreement will control.
15.8 US Government Restricted Rights. The Application is "commercial computer software" and the related documentation is "commercial computer software documentation" under 48 CFR 12.212 and is provided to US Government licensees with restricted rights. Use, duplication, reproduction or transfer of this commercial Application is restricted in accordance with FAR 12.212 and DFARS 227.7202 and this Agreement.

15.9 Waiver and Construction. Failure by Concrete to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement.

15.10 Export Control. Developer may not use, export, re-export, import, sell or transfer Applications  except as authorized by United States law, the laws of the jurisdiction in which Application is distributed by the Marketplace, and any other applicable laws and regulations.

 

16. Developer's General Obligations. Developer will:

16.1 Disputes. Resolve any disputes regarding merchandise or any other matter directly with its customers, not involve Concrete in any such disputes.
16.2 Applicable Law and Marketplace Platform and ISP Rules. Comply with applicable law, Marketplace rules, internet service provider rules, professional standards and contracts by which Developer is bound.

16.3 Developer certifies to Concrete and agrees that:

(a) Developer is of the legal age of majority in the jurisdiction in which Developer resides (at least 18 years of age in many countries) and has the right and authority to enter into this Agreement on behalf of Developer, or if Developer is entering into this Agreement on behalf of another Developer, organization or educational institution, that Developer has the right and authority to legally bind and Developer, organization or educational institution to the terms and obligations of this Agreement;

(b) All information provided to Concrete by Developer, including without limitation Application information, will be current, true, accurate and complete and Developer will promptly notify Concrete of any changes to such information;

(c) Developer will comply with the terms of and fulfill Developer’s obligations under this Agreement and Developer agrees to monitor and be responsible for Developer’s compliance with the terms of this Agreement;

(d) Developer will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by Developer in connection with Concrete5 Software and services,  Developer’s Applications and Developer’s related development and distribution efforts, including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software or services used by Developer in connection with Developer’s creation or delivery of the Application(s);

(e) For the purposes of Schedule 1(if applicable), Developer represents and warrants that Developer owns or controls the necessary rights in order to appoint Concrete and Concrete’s subsidiaries as Developer’s worldwide agent for the delivery of Developer’s Application, and that the fulfillment of such appointment by Concrete and Concrete subsidiaries shall not violate or infringe the rights of any third party; and

(f) Developer will not act in any manner which conflicts or interferes with any existing commitment or obligation Developer may have and no agreement previously entered into by Developer will interfere with Developer’s performance of its obligations under this Agreement.

 

17. Nondisparagement. Neither party will impugn the other party's character, ethics, integrity or products.

 

 

Schedule 1

 

CONCRETE5.ORG MARKETPLACE AGENCY AGREEMENT

 

1. Appointment of Agent

1.1 Developer hereby appoints Concrete as Developer’s worldwide agent for the delivery of the Application(s) to end-users, during the term of the Agreement. Developer hereby acknowledges that Concrete will deliver the Application(s) to end users in Concrete's own name, through one or more Marketplaces, but for Developer and on Developer’s behalf.

1.2  In furtherance of Concrete's appointment under Section 1.1 of this Schedule 1, Developer hereby authorize and instruct Concrete to:

(a) solicit and obtain orders on Developer’s behalf for Qualified Applications from end-users located anywhere in the world.;

(b) provide hosting services to Developer, in order to allow for the storage of, and end-user access to, the Qualified Application(s);

(c) make copies of, format, and otherwise prepare Qualified Applications for acquisition and download by end-users;

(d) allow end-users to access copies of the Qualified Applications, so that end-users may acquire from Developer and electronically download those Qualified Applications;

(e) use (i) screen shots and/or up to 60 second excerpts of the Qualified Applications; (ii) trademarks and logos associated with the Qualified Applications; and (iii) Qualified Application information provided by the developer, for promotional purposes in marketing materials and gift cards; and

(f) otherwise use Qualified Applications, Qualified Application information and associated metadata as may be reasonably necessary in the delivery of the Qualified Applications in accordance with Schedule 1.

1.3 Relationship.  The parties acknowledge and agree that their relationship under this Schedule 1 is, and shall be, that of principal and agent, and that Developer, as principal, is, and shall be, solely responsible for any and all claims and liabilities involving or relating to, the Qualified Applications, as provided in this Schedule 1. The parties acknowledge and agree that Developer’s appointment of Concrete as its agent under this Schedule 1 is non-exclusive.  Developer is not an employee, subsidiary, agent or otherwise affiliated with Concrete in any way except as detailed under this Agreement.

1.4 Delivery.  For purposes of this Schedule 1, the "Delivery Period" shall mean the period beginning on the Effective Date of the Agreement, and expiring on the last day of the Agreement or any renewal thereof; provided, however, that Concrete's appointment as Developer’s agent shall survive expiration of the Agreement for a reasonable phase-out period not to exceed thirty (30) days.

1.5 Free Applications.  All Qualified Applications delivered by Developer to Concrete under Section 2.1 of this Schedule 1 and designated Free Applications shall be made available by Concrete for download by end-users at no charge. Concrete shall have no duty to collect any fees for the Qualified Applications for any end-user and shall have no payment obligation to Developer with respect to any of those Qualified Applications under this Schedule 1.

1.6 Fee Applications.  All Qualified Applications delivered by Developer to Concrete under Section 2.1 of this Schedule 1 and designated as Fee Applications shall be made available by Concrete for download by end-users at the price designated by Developer.  Applications sold through the Marketplace must have a minimum price of $15.00. Concrete will collect fees for the Qualified Applications for any purchase through the Marketplace, and will forward those fees to the Developer’s Concrete account (the “Developer Account”), less an agency fee that is the greater of i.) 30% of the transaction amount, or ii.) $4.50. The remaining fees (“Net Fees”) will be deposited in the Developers Concrete5.org Account. 

1.7 Redemption of Net Fee(s).  Developers must supply Concrete with a completed IRS Form W-9, and is responsible for updating any W-9 information if it changes.  All Developers who have supplied an IRS Form W-9 to Concrete are eligible for distribution of accumulated Net Fees, upon request, no more frequently than 2 times in any calendar month (a “Disbursement Request”).  The minimum amount for any Disbursement Request is $100.  After a Disbursement Request s made, Concrete may pay Developer by paper check, mailed to the Developer’s address of record at Concrete5.org, or by Paypal or other electronic means at Concrete’s sole discretion.  Payments will be made by Concrete to Developer within 30 business days of receiving a Disbursement Request.  At Concrete’s sole discretion, Net Fees left on account by Developer for more than 12 months without a Disbursement Request may be converted to a Marketplace account credit that is nonredeemable for cash. Concrete reserves the right to reserve an amount of Net Fees prior to disbursal cover potential refund amounts to end users that may be reasonably expected.

1.8 End User Refunds/ Charge Backs.  Concrete reserves the right to refund any end user transaction that occurs in the Marketplace for any reason or no reason at its sole and complete discretion.  Concrete further reserves the right to debit the Developer’s account for any refunds, credit card chargeback(s), chargeback fees, collection fees or other deductions or losses that may occur in the process of collecting Application fees.

 

2. Delivery of the Qualified Applications to Concrete. 

2.1 Developer will deliver to Concrete, at Developer’s sole expense, using Concrete5.org submission form, a secure FTP site address and/or such other delivery methods as prescribed by Concrete, the Qualified Applications, Qualified Application Information and associated metadata, in a format and manner prescribed by Concrete, as required for the delivery of the Qualified Applications to end users in accordance with this Schedule 1.  Developer’s delivery to Concrete under this Schedule 1 will include: (i) the title and version number of each of the Qualified Applications; (ii) any copyright or other intellectual property rights notices; and (iii) Developer’s application description and other marketing materials.   

2.2 Developer hereby certifies that all of the Qualified Applications Developer delivers to Concrete under this Schedule 1 are authorized for export from the United States to all countries worldwide, in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774. Without limiting the generality of this Section 2.3, Developer certifies that none of the Qualified Applications contains, uses or supports any data encryption or cryptographic functions.  Concrete will not be responsible for compliance with the requirements of the Export Administration Regulations in allowing end-users to access and download the Qualified Applications under this Schedule 1.

2.3 Developers Application must work without further extension. If an Application requires additional software to be installed, or wraps anther Application, developer must include all components required to operate the Application in a single installation package.  End users may be required, however, to populate License Key or configuration fields to use the Application.

 

3. Ownership and End-User Licensing

3.1 The parties acknowledge and agree that Concrete shall not acquire any ownership interest in or to any of the Qualified Applications or Qualified Applications Information, and title, risk of loss, responsibility for, and control over the Qualified Applications shall, at all times, remain with Developer.  Concrete may not use any of the Qualified Applications or Qualified Application Information for any purpose, or in any manner, except as specifically authorized in this Schedule 1.

3.2  All Applications Distributed though Concrete will be subject to the terms and conditions of the Concrete5 MIT.  Developers may not supply their own license agreements.

3.3 Developer hereby acknowledges that the any additional end user license agreements (“EULA”) for each of the Qualified Applications is solely between Developer and the end-user and must conform to applicable law.  Concrete shall not be responsible for, and shall not have any liability whatsoever under, the and EULA as it relates to the Application, or for any breach by Developer or any end-user of any of the terms and conditions of  and EULA.

 

4. Responsibility, Liability and Indemnity.  Concrete shall have no responsibility for the installation and/or use of any of the Qualified Applications by any end-user. Developer shall be solely responsible for any and all product warranties, end-user assistance and product support with respect to each of the Qualified Applications. 

 

5. Termination.

5.1 This Schedule 1, and all of Concrete's obligations hereunder, shall terminate upon the expiration or termination of the Agreement.

5.2 In the event that Developer no longer has the legal right to distribute the Qualified Applications, or to authorize Concrete to allow access to those Qualified Applications by end-users, in accordance with this Schedule 1, Developer shall promptly withdraw those Qualified Applications from the Marketplace using the tools provided on the Concrete5.org Marketplace site; provided, however, that such withdrawal by Developer under this Section 6.2 shall not relieve Developer of any of Developer’s obligations to Concrete under this Schedule 1, or any liability to Concrete and/or any end-user with respect to those Qualified Applications.

5.3 Concrete reserves the right to cease allowing download by end-users of the Qualified Applications at any time, with or without cause, without providing notice of termination to Developer.  An election by Concrete to cease allowing download of any Qualified Applications, pursuant to this Section 6.3, shall not relieve Developer of Developer’s obligations under this Schedule 1.

5.4 Developer may withdraw any or all of the Qualified Applications from the Marketplace, at any time, and for any reason.

 

6. Legal Consequences.  The relationship between Developer and Concrete established by this Schedule 1 may have important legal consequences for Developer. Developer acknowledges and agrees that it is Developer’s responsibility to consult with Developer’s legal advisors with respect to Developer’s legal obligations hereunder.

 

7. Support. Developer is solely responsible for the Qualified Application and the content thereof.  Developer is solely responsible for providing any maintenance and support services with respect to the Qualified Application, or as required under applicable law. Developer must provide support for Application(s) in a timely fashion. For free listings, support requests via Concrete5.org posts is expected within a week of posting. For paid listings, support requests via Concrete5.org is expected within 48 hours. Failure to provide support may result in refunds to end users who request them, and eventual removal of the Application from the marketplace.

 

8. Warranty.   Developer is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Qualified Application distributed through the Marketplace to conform to any applicable warranty, the end-user may notify Concrete, and Concrete will refund the purchase price for the Qualified Application to that end user; and that, to the maximum extent permitted by applicable law, Concrete will have no other warranty obligation whatsoever with respect to the Qualified Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Developer’s sole responsibility.

 

9. Records/Audit Rights.
9.1 Obligation to Maintain Records. Developer and Concrete will, during the Term and for a period of at least one years following the termination of this Agreement for any reason, maintain complete and accurate records relating to Developer’s Net Fees and payment thereof.
9.2 Audit Rights. If a Developer is eligible for payment of Net Fees, Developer will from time to time have the right to have an independent auditor audit Concrete’s books and records related to this Agreement to determine (a) the accuracy of the reports generated for the purposes of documenting Developer Fees; and (b) the amount of Developer Fees payable to the Developer.  Audits must be performed during normal business hours and subject to not less than five days' prior notice.  Each audit will be conducted at Developer’s sole cost and expense.  The Developer’s right to an audit is limited: it applies to the activity of the Developer and the Developer’s application(s) only, and it applies only to activity, payments and Developer Fees earned during the 12 months prior to the audit date.  If an audit reveals that Concrete under paid any Developer Fees, Concrete will promptly pay the amount of the underpayment to Developer within 10 business days.

 

 

 

Schedule 2

 

DEVELOPER REQUIRMENTS

 

1. Without Concrete's prior written approval, an Application may not provide, unlock or enable additional features or functionality through distribution mechanisms other than the Marketplace.

 

2. An Application may only read data from or write data to Application's own dedicated data storage and may not interfere with data storage of Concrete5 or other Concrete approved Applications.

 

3. Applications must comply with any UI guidelines or requirements provided by Concrete.

 

4. Application function must comply with all applicable privacy laws and regulations as well as any Concrete program requirements related to such aspects, including but not limited to any notice or consent requirements. In particular, a reasonably conspicuous audio, visual or other indicator must be displayed to the user as part of the Application to indicate that a Recording is taking place.

 

5. Applications must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which the Application(s) may be delivered.  In addition, for Applications that use location-based APIs or that collect, transmit, maintain, process, share, disclose or otherwise use a user's personal information or data: 

(a) Developer and the Application must comply with all applicable privacy and data collection laws and regulations with respect to any collection, transmission, maintenance, processing, use, etc. of the user's location data or personal information by the Application.

(b) Applications may not be designed or marketed for the purpose of harassing, abusing, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others.

(c) Applications may not perform any functions or link to any content or use any robot, spider, site search or other retrieval application or device to scrape, retrieve or index services provided by Concrete or its licensors, or to collect, disseminate or use information about users for any unauthorized purpose.

 

6. For Applications that use location-based APIs, such Applications may not be designed or marketed for automatic or autonomous control of vehicles, aircraft, or other mechanical devices; dispatch or fleet management; or emergency or life-saving purposes. Applications that offer location-based services or functionality must notify and obtain consent from an individual before his or her location data is being collected, transmitted or otherwise used by the Application.

 

7. Applications must not disable, override or otherwise interfere with any Concrete5 implemented system alerts, warnings, display panels, consent panels and the like, including, but not limited to, those that are intended to notify the user that the user's data is being collected, transmitted, maintained, processed or used, or intended to obtain consent for such use. If consent is denied or withdrawn, Applications may not collect, transmit, maintain, process or utilize the user's data or perform any other actions for which the user's consent has been denied or withdrawn.

 

8.  If the Application accesses third party web services including but not limited to Yahoo, yahoo maps, Salesforce.com, and Google maps and Google Mobile Maps though API or other means, use of those Application Services  Service is subject to the terms and conditions of the providing party’s terms of use agreements including, but not limited to all limitations and restrictions therein.  Developer acknowledges and agrees that use of a third party’s Web Service in the Application will constitute acceptance of such terms of use.

 

9. Any master recordings and musical compositions embodied in an Application must be wholly-owned by Developer or Qualified to Developer on a fully paid-up basis and in a manner that will not require the payment of any fees, royalties and/or sums by Concrete to Developer or any third party. In addition, if the Application will be distributed outside of the United States, any master recordings and musical compositions embodied in Application (a) must not fall within the repertoire of any mechanical or performing/communication rights collecting or licensing organization now or in the future and (b) if Qualified, must be exclusively Qualified to Developer for the Application by each applicable copyright owner.

 

10. If the Application includes or will include any other content, Developer must either own all such content or have permission from the content owner to use it in Developer’s Application.

 

11. Applications must not contain any obscene, pornographic, offensive or defamatory content or materials of any kind (text, graphics, images, photographs, etc.), or other content or materials that in Concrete's reasonable judgment may be found objectionable by Concrete5 users.

 

12. Applications must not contain any malware, malicious or harmful code, program, or other internal component (e.g. computer viruses, trojan horses, "backdoors") which could damage, destroy, or adversely affect other software, firmware, hardware, data, systems, services, or networks.

 

13. From time to time, Concrete may provide access to additional services for Developer to use in connection with Applications. Some of these additional services may be subject to separate terms and conditions in addition to this Agreement. If Developer elects to use such services, its usage will also be subject to those separate terms and conditions. In addition, such services may not be available in all languages or in all countries. Concrete makes no representation that such services are appropriate or available for use in any particular location. To the extent Developers choose to access such services, Developers do so at their own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Certain services made accessible to Developer through Concrete5 Software may be provided by third parties. Developer acknowledges that Concrete will not have any liability or responsibility to Developer or any other person (including to any end user) for any third-party services or for any Concrete services. Concrete and its licensors reserve the right to change, suspend, remove, or disable access to any services at any time. In no event will Concrete be liable for the removal of or disabling of access to any such services.