GoDaddy - Poynt Developer Distribution Agreement
This Developer Distribution Agreement (“Agreement”) forms a legally binding contract between you and GoDaddy Poynt in relation to your use of the Store to distribute an App. PLEASE READ THIS AGREEMENT CAREFULLY; IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS. Clicking where indicated constitutes acceptance of this Agreement. If you do not accept this Agreement, then you may not distribute an App on the Store.
You acknowledge that GoDaddy Poynt will, solely on your behalf, and not on GoDaddy Poynt’s behalf, display and make an App available for download and purchase by End Users. In order to use the Store to distribute an App, you must accept this Agreement and provide complete and accurate information in the Developer Portal.
You may only accept this Agreement and use the Store to distribute an App while you remain in a good standing situation, i.e., while you comply with your obligations under this Agreement in addition to any applicable obligations provided by Applicable Laws, and you may not accept this Agreement unless GoDaddy Poynt approves you to distribute an App on the Store. This Agreement will automatically terminate if you are (a) not in a good standing situation, or (b) a person or entity barred from using GoDaddy Poynt’s software under the laws of the United States or other countries including the country in which you are resident or from which you access the Developer Portal.
If you are agreeing to be bound by this Agreement on behalf of your employer or an entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the Developer Portal or the Store on behalf of your employer or such entity.1. Definitions
“App” means software, digital materials and other content that you have submitted to GoDaddy Poynt for distribution via the Store.
“App Terms” means your terms and conditions that govern an End User’s use of your Apps.
“Applicable Laws” means applicable laws, statutes, enactments, orders, regulations, policies or other similar instruments in any jurisdiction in the world enacted by any court or government body or by common law or any consent, decree or settlement agreement entered into with any government body, to the extent applicable to a party, to the business of that party or to the obligations of that party under the Agreement.
“Billing Plan” means the fee charged to End User by Developer for and/or in connection with the App.
“Brand” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as owned by (or licensed to) such party from time to time.
“Card Association Rules” The bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any card association (as amended from time to time by such card association).
“Developer,” “you” or “your” means any natural person or legal entity who is registered and approved by the GoDaddy Poynt to distribute an App in accordance with the terms of this Agreement.
“Developer Account” means an account created by you that enables the development and distribution of your App via the Store.
“Developer Portal” means the portal and other online tools or services provided by GoDaddy Poynt to application developers to manage the distribution of applications and related functions.
“Device” means any device provided by GoDaddy Poynt to End Users on which End Users access the App.
“End User” means a merchant that uses Devices to access an App.
“End User Account” means a merchant’s account on the Store.
“GoDaddy Poynt” means Poynt, LLC, a Delaware corporation with principal place of business at 2155 E. GoDaddy Way, Tempe, AZ 85284, United States, and any affiliates or relevant distribution partners including without limitation GoDaddy Payments, LLC.
“Net Revenue” means the revenues received by you from End Users for your Apps (measured in USD), after deducting, if not previously deducted, from such amounts: (i) returns, rebates, and refunds actually given; (ii) taxes and other applicable governmental charges (excluding taxes on Developer’s net income); and/or (iii) the third-party costs incurred by Developer or GoDaddy Poynt for the platforms and services supporting the App, such as revenue shares paid to point-of-sale service processors and credit card processing fees (excluding infrastructure, compute, hosting, and licensing costs) For the sake of clarity, Net Revenue shall include revenues received by Developer from End Users indirectly via GoDaddy Poynt and regardless of whether derived at download, at the time of use by End Users, or subsequently during an upgrade, regardless of whether such upgrade happens within the Store including any subscriptions, in-App features, add-ons, extras or the like.
“Payment Account” means a financial account (e.g., bank) on behalf of Developer, reported to GoDaddy Poynt, that allows GoDaddy Poynt to collect and remit payments on Developer’s behalf for an App sold via the Store. Developer must keep its Payment Account in good standing to charge for an App distributed in the Store.
“Payment Processor(s)” means a party authorized by GoDaddy Poynt (e.g., acquirer) to provide services that enable Developer with Payment Accounts to charge users for an App distributed via the Store.
“Store” means the marketplace created and operated by GoDaddy Poynt which allows Developer, if Developer has a valid Developer Account, to distribute an App to End Users.2. Scope
You acknowledge that GoDaddy Poynt may, solely on your behalf, and not on GoDaddy Poynt’s behalf, display and make your Apps available for download and purchase by End Users from the Store. In order to use the Store to distribute your Apps, you are required to provide complete and accurate information in the Developer Portal. This Agreement governs Apps you choose to make available to End Users for a fee or for free.3. Pricing and Payments
3.1 Payment Account. In order to charge a fee for your App, you must have a valid Payment Account under a separate agreement with a Payment Processor. If you already have a Payment Account with a Payment Processor before signing up for the Store, then the terms of that agreement between you and the Payment Processor will apply except in the event of a conflict with this Agreement (in which case the terms of this Agreement shall prevail).
3.2.1 GoDaddy Poynt will charge you a minimum “per download” fee of twenty percent (20%) of the Net Revenue for each download of your App (the “Download Fee”). Where applicable, GoDaddy Poynt, by itself or through authorized business partners (including credit card operators or payment processors), will add applicable taxes in the price charged to End Users. In the event that your App is transaction based in any way, you will contact GoDaddy Poynt in order to facilitate your payment and pricing structure, and your right to charge on a transaction basis will be subject to executing an addendum to this Agreement detailing such agreement.
3.2.2 GoDaddy Poynt (i) may charge you a monthly fee in an amount equal to up to fifty percent (50%) of the gross revenue generated by each App that an End User purchased and is billed outside of the Store, in breach of the requirements set forth in Section 6.4.2 of the Agreement (the “Outside the Store Fee”) and (ii) reserves the right, in its sole discretion and upon prior notice to you, to charge you a distribution fee for any Apps that are downloaded by End Users for free (the “Distribution Fee” and collectively with the Download Fee and Outside the Store Fee the “Fees”). GoDaddy Poynt reserves the right to amend the amount of the Fees from time to time upon prior written notice to you.
3.3 Merchant of Record. You, and not GoDaddy Poynt, are the merchant of the App that you make available to End Users. Except as otherwise provided in this Agreement, GoDaddy Poynt will act as your payment agent, and payments made by End Users to you for Apps will be received by GoDaddy Poynt and passed on to you through the Payment Account in $USD only (for example, if the price for your App is in CAD, GoDaddy Poynt will convert such CAD payments into USD prior to passing on to you). GoDaddy Poynt will withhold the Fees from any amounts owed to you and apportioned between GoDaddy Poynt and the Payment Processor. Where either GoDaddy Poynt or the Payment Processor is required by applicable (local) legislation where you are established, to withhold any taxes (“Withholding Taxes”) on payments made or received by anyone of them, GoDaddy Poynt will also deduct an amount equal to such Withholding Taxes from the sales price paid by End User. For the avoidance of doubt, Withholding Taxes include, but are not limited to, any and all tax that shall be withheld or similar obligations on cross-border payments, imposed by Applicable Laws. The difference between the Fees and the amount equal to any Withholding Taxes will be remitted to you. You are responsible for proving to GoDaddy Poynt the place where you provide services for tax purposes. If GoDaddy Poynt or its service providers do not receive such documentation, GoDaddy Poynt will withhold the domestic tax rate of the Withholding Taxes.
3.4.1 Where applicable, GoDaddyPoynt, by itself or through authorized business partners (including credit card operators or payment processors), will add applicable taxes in the price charged to End Users for your Apps. You may set the price for your Apps in the currencies permitted by the Payment Processor. GoDaddy Poynt may display the price of an App to End Users in their native currency for information purposes only, but the currency rates or currency conversion applicable to End Users will be Payment Processor’s responsibility and GoDaddy Poynt shall not be held liable for the accuracy thereof.
3.4.2 GoDaddy Poynt and/or the Payment Processor (and not you) will be responsible for applying and collecting and remitting the taxes to the competent taxing authority. If GoDaddy Poynt collects and remits value added taxes on payments made by End Users (if so required from GoDaddy Poynt by applicable local law) and this collection fulfills the applicable requirements for value added taxes on those payments, such taxes will not be passed on to you by GoDaddyPoynt. Where GoDaddy Poynt is required to collect and remit taxes as described in this Section, you and GoDaddy Poynt will recognize a supply from you to GoDaddy Poynt for tax purposes, and you will comply with the relevant tax obligations arising from this additional supply. You hereby authorize Point to deduct the amount corresponding to the applicable taxes of any amounts to be paid to you by GoDaddy Poynt pursuant to this Agreement.
3.5 Authority to Refund. You authorize GoDaddy Poynt to give End Users a full refund of the App price or in-app transaction on your behalf if the End User requests the refund at any time within forty-eight (48) hours after the respective purchase. In all other respects, the your standard terms and conditions regarding refunds will apply provided that GoDaddy Poynt may issue a refund in its sole and reasonable discretion. End User refunds may be exclusive of taxes previously charged to users for App purchases.
3.6 Right to Audit. GoDaddy Poynt shall have the right to inspect and audit all of Developer’s accounting reports, books or records which concern this Agreement or the sale of an App to End Users (whether such sale occurs through the Store or directly with Developer). Such audit shall take place during normal business hours at Developer’s place of business. Developer shall retain all records relating to the performance of this Agreement and the sale of an App to End Users (whether such sale occurs through the Store or directly with Developer) for five (5) years after the end of the term of this Agreement.4. App Support
GoDaddy Poynt will direct End Users to contact you with respect to any defects or performance issues in an App. Between you and GoDaddyPoynt, you are solely responsible for the support and maintenance of the App and for any claims about your App. GoDaddy Poynt or any of its partners or service providers shall have no responsibility to accept or control such actions. You will provide and maintain valid and accurate contact information that will be displayed on the details page of each App in the Store and made available to End Users for customer support and other legal purposes. You will respond directly to any customer support questions related to the App within up to three (3) business days or within twenty-four (24) hours for any matters classified as urgent by GoDaddy Poynt. Your failure to provide adequate information or support for your App may result in low App ratings, lesser App exposure, low sales, payment challenges and/or deletion of the App from the Store. GoDaddy Poynt will direct End Users to you when App support related questions are presented to GoDaddy Poynt. Upon GoDaddy Poynt’s request, you will promptly provide responses to technical questions from GoDaddy Poynt’s technical support team. If GoDaddy Poynt becomes aware of, and subsequently notifies you about, any security vulnerabilities, bugs, or errors in the App, you must promptly issue an update of the App as soon as reasonably practicable. If you remove the App from the Store as provided in Section 9.1 or for any reason cease to provide support services, you must notify End Users at least thirty (30) days in advance.5. App Terms.
You may, at your sole discretion, determine the App Terms for each of your Apps, subject to this Section 5. Your App Terms must: (a) comply with the Card Association Rules and Applicable Laws of the jurisdiction(s) in which your App is to be published in the Store; and (b) not materially conflict with this Agreement. Your App Terms must not state or suggest in any way that GoDaddy Poynt or any of its affiliates is (i) a party to the App Terms; (ii) the licensor or provider of your App; or (iii) liable to an End User in any way with respect to the End User’s use of the App. Prior to amending or replacing your App Terms, you must submit the proposed amended or replacement App Terms to GoDaddy Poynt for approval before publishing such App Terms, making them available to End Users or otherwise making them available via the Store.6. Use of the Store
6.1 Permitted Use. You will use the Store only for purposes that are permitted by (a) this Agreement and (b) the Card Association Rules and any Applicable Laws or generally accepted practices in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
6.2 End User Data. You will protect End Users’ privacy and further rights provided by Applicable Laws (including, but not limited to, their officers, directors, employees, agents or representatives and customers). If End Users provide you with, or your App accesses or uses, End User names, passwords, or other login information or personal information of their officers, directors, employees, agents or representative, you must make the End Users aware that the information will be available to your App, and you must provide legally adequate privacy notice and protection for those End Users or their officers, directors, employees, agents or representatives and customers. Further, your App may only use that information for the limited purposes for which the End User has given you permission to do so or according to the requirements of Applicable Laws. If your App stores personal or sensitive information provided by End Users, it must do so securely and only for as long as it is needed. If the End User has opted into a separate agreement with you that allows you or your App to store or use personal or sensitive information directly related to your App (not including other content or applications), then the terms of that separate agreement will govern your use of such information. Notwithstanding any provision of this Agreement, you shall at all times comply with Applicable Laws relating to privacy and/or data protection, existing as of the time you accept this Agreement and thereafter, during the term of this Agreement. If the End User provides your App with End User Account information, your App may only use that information to access the End User’s Account of the End User when, and for the limited purposes for which, the respective End User has given you permission to do so. You agree to remove any End User personal data upon End User’s request, except for any personal data which you may be required by Applicable Laws or court order to retain, but only to the extent required by Applicable Laws or relevant court order.
6.3 Prohibited Actions. You will not engage in any activity in the Store, including the distribution of an App, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, End Users, GoDaddy Poynt, Payment Processors or financial institutions. You will not use End Users’ information (including, but not limited to, their officers’, directors’, employees’, agents’ or representatives’ and customers’ personal information) obtained from the Store or otherwise from GoDaddy Poynt to sell or distribute an App or services outside the Store.
6.4 Alternative Stores; No Direct Sales to End Users.
6.4.1 You may not use the Store to distribute or make available any App that has the purpose of facilitating the distribution, outside of the Store, of software applications for use on Devices or for purposes of facilitating the distribution of software not for use on Devices.
6.4.2 You will not make available your applications to GoDaddy Poynt merchants for use on Devices except through the Store. If any GoDaddy Poynt merchant contacts you directly for the purpose of purchasing or using your applications, you will use the API provided by GoDaddy Poynt to verify whether the merchant is a GoDaddy Poynt merchant. If, based on the information provided through the GoDaddy Poynt API, the merchant is a GoDaddy Poynt merchant, you will direct such merchant to purchase your applications through the Store. The GoDaddy Poynt API, and all information provided through the API, will be deemed GoDaddy Poynt Confidential Information, and you will use the API, and the information provided through the API, solely to verify whether the merchant is a GoDaddy Poynt merchant.
6.5 Marketing Your App. You will be responsible for uploading your App to the Store, providing required App information and providing support to End Users, and accurately disclosing the security permissions necessary for the App to function on Devices. If you do not comply with the terms of this Agreement, GoDaddy Poynt has the right to decline to publish your App in the Store.
6.6 Publication of Your App in the Store.
6.6.1 Prior to being able to publish an App in the Store you must:
- obtain validation by GoDaddy Poynt of your Developer Account;
- provide details for your Payment Account if you will be charging App Fees for your App.
6.6.2 GoDaddy Poynt reserves the right to display the published App in the Store in a manner as determined by GoDaddy Poynt at its sole discretion and to change the manner that the published App is displayed in the Store from time to time. Any validations or approvals may be withheld by GoDaddy Poynt in its sole discretion.7. License Grants; Customizations.
7.1 License Grants. You grant to GoDaddy Poynt and its affiliates a nonexclusive, worldwide, and royalty-free license to reproduce, publicly perform, distribute, publicly display, analyze and use the Apps in connection with (i) the operation and availability of the Store; (ii) promoting and marketing of Devices and services that support the use of an App; (iii) making improvements to the Store and to the Developer Portal; (iv) confirming compliance with this Agreement; (v) making your App available on the Store for download by End Users, in the manner indicated in the Developer Portal; and (vi) use of your Apps by End Users on Devices.
7.2 Service Providers. GoDaddy Poynt may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this Agreement. Subject to Section 12.3, below, after termination of this Agreement, GoDaddy Poynt will not distribute your App, but may retain and use copies of the App for support of the Store and the Developer Portal.
7.3 Ownership of App. Except for the license rights granted by you in Section 7.1 above, GoDaddy Poynt obtains no right, title or interest from you (or any licensors) under this Agreement in or to your App, including any intellectual property rights which subsist in such App.8. Brand and Publicity
8.1 Developer Brand. Developer hereby grants to GoDaddy Poynt and its affiliates a non-exclusive, royalty-free license during the term of this Agreement (subject to Section 8.2 below) to use, reproduce, publish, perform and display the Developer Brand submitted by Developer to GoDaddy Poynt in connection with satisfying GoDaddyPoynt’s obligations, and exercising GoDaddyPoynt’s rights, under this Agreement, including, without limitation, in connection with (i) distribution and sale of Developer’s App through the Store or to otherwise allow GoDaddy Poynt to fulfill its obligations under this Agreement, (ii) within the Store and in any GoDaddyPoynt-owned online or mobile properties; (iii) in online, mobile, television, out of home (e.g. billboard), and print advertising formats outside the Store when mentioned along with other Store applications; (iv) when making announcements of the availability of an App; (v) in presentations; and (vi) in customer lists which appear either online or on mobile devices (which includes, without limitation, customer lists posted on GoDaddy Poynt websites).
8.2 Termination of Use. Upon the termination of this Agreement, or if Developer discontinues the distribution of a specific App on the Store, GoDaddy Poynt will cease use of the Developer Brand for the discontinued App, except that the licenses in this Section 8 to the Developer Brand will continue for Apps purchased by End Users prior to the date of termination of the Agreement or discontinuation of the specific App.
8.3 GoDaddy Poynt Brand. GoDaddy Poynt grants to Developer a limited, non-exclusive, worldwide, royalty-free license to use the GoDaddy Poynt Brand for the term of this Agreement solely to advise End Users that the App is available on the Store and only in accordance with the GoDaddy Poynt Brand Guidelines made available by GoDaddy Poynt to you.
8.4 Ownership of Brands. Each party shall retain all right, title and interest, including without limitation all intellectual property rights, relating to its Brands. Except to the limited extent expressly provided for in this Agreement, neither party grants, nor shall the other party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand of the other party.9. App Takedowns
9.1 Your Takedowns.
9.1.1 You may remove your App from future distribution via the Store at any time, subject to the terms of this Agreement. Removing your App from future distribution via the Store shall not (a) affect the license rights of End Users who have previously purchased or downloaded your App, (b) result in removal of your App from Devices or from any part of the Store where the previously purchased or downloaded App is stored on behalf of End Users, or (c) change your obligation to deliver or support an App or services that have been previously purchased or downloaded by End Users. Notwithstanding the foregoing, in no event will GoDaddy Poynt maintain on any portion of the Store (including, without limitation, the part of the Store where previously purchased or downloaded an App is stored on behalf of End Users) any App that you have removed from the Store and for which you provided written notice to GoDaddy Poynt that such removal was due to (i) an allegation of infringement, or effective infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (ii) an allegation of defamation or effective defamation, (iii) an allegation of violation, or effective violation, of any third party’s right of publicity or privacy, or (iv) an allegation or determination that such App does not comply with Applicable Laws.
9.1.2 If you remove an App from the Store pursuant to clauses (i), (ii), (iii) or (iv) of Section 9.1.1, and an End User purchased such App within a year before the date of takedown, at GoDaddyPoynt’s request, you must refund to the affected End User all amounts paid by such End User for such affected App, less the portion of the Fees, which shall always be retained by GoDaddy Poynt to cover operational costs, less any Withholding Taxes. If you remove any App pursuant to this Section 9.1, you shall comply with any data retention requirements under Applicable Laws.
9.2 GoDaddy Poynt Takedowns.
9.2.1 GoDaddy Poynt is not liable for, and does not have any obligation to, monitor your App or its use by End Users. Notwithstanding the above, if you notify GoDaddy Poynt or if GoDaddyPoint otherwise becomes aware and determines in its sole discretion or receives notice (including through a court order) that a specific App or any portion thereof or your Brands; (a) violate the intellectual property rights or any other rights of any third party; (b) violate any Applicable Laws, Card Association Rules or are subject to an injunction; (c) are pornographic, obscene, abusive, objectionable or otherwise violate GoDaddyPoynt’s policies or other terms of service as may be updated by GoDaddy Poynt from time to time in its sole discretion; (d) are being distributed by you improperly, including if they present any defect; (e) may create liability for GoDaddyPoynt; (f) are deemed by GoDaddy Poynt to have a virus or are deemed to be malware, spyware or have an adverse impact on GoDaddyPoynt’s property including its network; (g) violate the terms of this Agreement or GoDaddyPoynt’s App Development Guidelines as well as of its business partners and service providers; or (h) the display of the App is impacting the integrity of GoDaddy Poynt servers (i.e., End Users are unable to access such App or otherwise experience difficulty), GoDaddy Poynt may remove the App from the Store without any liability to you or reclassify the App at its sole discretion. GoDaddy Poynt reserves the right to suspend and/or bar you from the Store at its sole discretion. If your App contains elements that could cause serious harm to Devices or data, GoDaddy Poynt may at its discretion disable the App. GoDaddy Poynt may suspend or terminate distribution of your App if you materially breach the terms of any non-disclosure agreement or other agreement that you may have executed with GoDaddy Poynt relating to the Store or the Developer Portal.
9.2.2 GoDaddy Poynt enters into distribution agreements with Device distributors and re-sellers to make the Store available on Devices. These distribution agreements may require the removal of an App in violation of the Device distributor’s or re-seller’s terms of service.
9.2.3 In the event that your App is removed according to Section 9.2.1 above, and an End User has purchased such App within a year before the date of takedown: (i) you must refund to GoDaddyPoynt, all amounts received, plus any associated fees (i.e. chargebacks and payment of Fees), (ii) GoDaddy Poynt may, at its sole discretion, withhold from your future sales the amount in subsection (i) above, and (iii) GoDaddy Poynt may, at its sole discretion, prohibit your future access to the Store.10. Confidentiality
10.1 Developer Credentials. You are responsible for maintaining the confidentiality of any developer credentials that GoDaddy Poynt may issue to you or which you may choose yourself and that you will be solely responsible for all Apps that are made available in the Store under your developer credentials. GoDaddy Poynt may limit the number of Developer Accounts issued to you.
10.2 Confidential Information. You shall maintain the confidentiality and shall not use or disclose without prior and express authorization from GoDaddy Poynt to any third party any information GoDaddy Poynt may provide to you under this Agreement, including any information about the Store, the Developer Portal, merchant information provided under Section 6.4.2, the terms and conditions of this Agreement, or any information that is GoDaddy Poynt property, its business partners and/or service providers that are not in the public domain (“Confidential Information”). Upon GoDaddyPoynt’s request or in the event of termination of this Agreement, you shall immediately return (or, upon GoDaddyPoynt’s request, destroy) the Confidential Information in your possession.11. Collection of Non-personal Information
12.1 Term. This Agreement will continue to apply until terminated by either you or GoDaddy Poynt as set out in Sections 12.2 or 12.3 below.
12.2.1 If you want to terminate this Agreement, you must provide GoDaddy Poynt with thirty (30) days prior written notice (unless this Agreement terminates under Section 16) and cease your use of any relevant Developer credentials.
12.2.2 GoDaddy Poynt may at any time terminate this Agreement for convenience.
12.3 Effect of Termination. Termination of this Agreement by either party will not (i) affect the license rights of End Users who have previously purchased or downloaded your App, (ii) result in removal of your App from Devices or from any part of the Store where the previously purchased or downloaded App is stored on behalf of End Users, or (iii) change your obligation to deliver or support an App or services that have been previously purchased or downloaded by End Users.13. Warranties; Disclaimer of Warranties
13.1 You represent and warrant that:
- A Merchant’s use of your App in accordance with any standard instructions that you may make available to the Merchant will not violate Applicable Laws or Card Association Rules or cause the Merchant to violate Applicable Laws or Card Association Rules;
- You will not do or fail to do, or cause or permit anything to be done or omitted to be done, in respect of all of the personal data to which these Terms relates, that may cause or otherwise result in a breach of the Applicable Laws by GoDaddyPoynt; and
- You have all intellectual property rights, including all necessary rights on patents, trademarks, trade secrets, copyrights or other proprietary rights, regarding the App. If you use third-party materials, you represent and warrant that you have the right to distribute such third-party material in the App.
13.2 You agree that you will not submit material to the Store that is copyrighted, protected by trade secret or that, otherwise, is subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner of such rights to submit the material. Section 15 shall apply to any violations of Sections 13.1 or 13.2.
13.3 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE DEVELOPER PORTAL AND THE STORE IS AT YOUR SOLE RISK AND THAT THE STORE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND.
13.4 YOUR USE OF THE DEVELOPER PORTAL AND THE STORE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DEVELOPER PORTAL AND THE STORE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
13.5 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, GoDaddy Poynt FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.14. Liability
14.1 You are solely responsible (and GoDaddy Poynt, its business partners or any of its service providers have no liability to you or any third party) with respect to any App you distribute through the Store, including the use of any APIs in GoDaddy Poynt’s cloud, and the consequences of your acts (including any loss or damage that GoDaddy Poynt, its business partners or any of its service providers may incur). These consequences include, among other things, liability for an App, infringement of consumers’ rights and/or intellectual property claims related to your App.
14.2 You are solely responsible (and GoDaddy Poynt, its business partners or any of its service providers have no liability to you or any third party) for any breach of obligations you undertake under this Agreement, any agreement or applicable third party terms of service, or any Applicable Laws, and for the consequences (including any loss or damage that GoDaddy Poynt, its business partners or any of its service providers or any third party may incur) from any such breach. In case of any such breach, Section 15 shall apply.
14.3 YOU EXPRESSLY UNDERSTAND AND AGREE THAT GoDaddy POYNT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT GoDaddy Poynt OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. IN NO EVENT SHALL GoDaddy POYNT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID IN THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
14.4 YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN SECTION 14 (I) REFLECT A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND (II) ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND THAT IN THE ABSENCE THEREOF, THE TERMS AND CONDITIONS SET FORTH HEREIN WOULD BE SUBSTANTIALLY DIFFERENT.15. Indemnification
15.1 General. To the maximum extent permitted by law, you will defend, indemnify and hold harmless GoDaddy Poynt, its affiliates and their respective directors, officers, employees, and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), arising out of (a) your breach of this Agreement, (b) your Apps, or (c) infringement, misappropriation or violation of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defamation of any person or violation of their rights of publicity or privacy or any other rights or violation any other third parties’ rights, including, without limitation, consumers’ rights, by your Apps or your Brands.
15.2 Payment Processors. To the maximum extent permitted by law, you will defend, indemnify and hold harmless the applicable Payment Processors (which may include GoDaddy Poynt and/or third parties) and the Payment Processors’ affiliates, directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), including those arising out of or accruing from taxes related to your Apps.16. Policies; Changes to the Agreement and Policies
In addition to the terms of this Agreement, you will comply with respect to your Apps with GoDaddy Poynt App Development Guidelines, GoDaddy Poynt Compliance Requirements, and GoDaddy Poynt GDPR Guidelines (“GoDaddy Poynt Policies”). GoDaddy Poynt may make changes to this Agreement and/or the GoDaddy Poynt Policies at any time, and such changes will become effective 30 days after GoDaddy Poynt communicates such changes to you via the Developer Portal. If you do not agree with the modifications to the Agreement and/or the GoDaddy Poynt Policies, you must terminate your use of the Store, which will be your sole and exclusive remedy.17. General Terms
17.1 This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
17.2 No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
17.4 You acknowledge and agree that each member of the group of companies of which GoDaddy Poynt is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. No other person or company shall be third party beneficiaries to this Agreement outside these circumstances. The parties acknowledge and agree that the obligations of GoDaddy and Poynt under this Agreement are not joint and several; rather, GoDaddy is responsible for all duties and liabilities of GoDaddy and Poynt under this Agreement.
17.5 APPS ON THE STORE MAY BE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF APPS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
17.6 The rights granted in this Agreement may not be assigned or transferred by you without the prior written approval of GoDaddy Poynt. You are not authorized to delegate your responsibilities or obligations under this Agreement without the prior written approval of GoDaddy Poynt. Any attempt to assign contrary to what is provided in this instrument is void. If you experience a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) you will give written notice to GoDaddy Poynt within 30 days after the change of control; and (b) GoDaddy Poynt may immediately terminate this Agreement, without liability, between the change of control and 30 days after it receives that written notice.
17.7 This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles. You irrevocably submit and consent to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware.
17.8 Those provisions of this Agreement that, by their nature, are intended to survive the termination or expiration of this Agreement, will remain in full force and effect following the termination or expiration of this Agreement, including: Sections 1, 3.2, 3.3, 3.5, 3.6, 7.2, 7.3, 8.1 (in accordance with Section 8.2 and Section 12.3), 8.3, 8.4, 10.2, 11, 12.3, 13, 14, 15 and 17.