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KaiOS Application Development Agreement
This KaiOS Application Development Agreement ("Agreement") apply to all developers wishing to develop applications for the KaiOS. The Agreement forms a valid contract between you ("you" or "Licensee"), and KAI OS TECHNOLOGIES (HONG KONG) LIMITED, a corporation duly organized and existing under the laws of Hong Kong, having its principle place of business at 5th Floor, Building 22E, 22 Science Park East Avenue, Hong Kong Science Park, Shatin, New Territories, Hong Kong ("we" or "KAI"). Do note that we may change the Agreement from time to time at our discretion. Whenever the Agreement is modified, we will ask you to accept the new terms before downloading or accessing the KAI software. You accept these terms by clicking on the applicable "I accept" button shown to you in connection with these Agreement. If you are accepting this Agreement on behalf of your employer or another organisation, by clicking on accept you represent and warrant that you are authorized to accept this Agreement on behalf of that organisation. 1. Definitions in this Agreement: Application: means one or more software programs developed by Licensee in compliance with the Documentation and Developer Requirements, under Licensee's own trademark or brand, and for specific use with the KaiOS Devices, including bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software programs. Documentation: means any technical or other specifications or documentation that KAI may provide to Licensee for use in connection with Kai Software. "Documented API(s)" means the application programming interface(s) documented by KAI in the Documentation and which are contained in Kai Software. "FOSS" means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL, Mozilla Public License (MPL), or Apache License. "Developer Requirements" mean the technical, human interface, design, product category, security, performance, and other criteria and requirements set forth in Exhibit A. "KaiOS" means the software package in source and/or binary formats that altogether provides a system level integrated stack and services for various form-factored hardware and software; including its derivative works and Updates. "KaiOS Devices" means mobile devices that run KaiOS. "KaiOS Store" means the service portal application KAI has created which allows registered end users to download services and applications. "Kai Software" means: (a) the SDK, and (b) the KaiOS (if any), and includes any Updates to any of the foregoing that may be provided to Licensee by KAI. "Security Solution" means the proprietary content protection system of KAI to be applied to Applications distributed on the KaiOS Store to administer KAI's standard usage rules for Applications, as such system and rules may be modified by KAI from time to time. "SDK" means the Documentation, software (source code and object code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials provided by KAI for use by Licensee in connection with the Application development, and includes any Updates that may be provided by KAI to Licensee pursuant to this Agreement. "Term" means the period described in Section 8. "Updates" means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the Kai Software, or to any part of Kai Software. 2. Internal Use License and Restrictions 2.1 Permitted Uses and Restrictions Subject to the terms and conditions of this Agreement, KAI hereby grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license, during the Term, to: (a) install a reasonable number of copies of the SDK on hardware owned or controlled by Licensee, to be used internally by Licensee for the sole purpose of developing or testing Applications; and (b) use and copy the Documentation for internal use only and for the sole purpose of developing or testing Applications. Licensee will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by Licensee in connection with the foregoing license. 2.2 Copyright Notices Licensee agrees to retain the KAI copyright, disclaimers and other proprietary notices (as they appear in Kai Software and related services and Documentation provided) in all copies of Kai Software and Documentation. 2.3 Ownership KAI retains all rights, title, and interest in and to Kai Software it may make available to Licensee under this Agreement. 2.4 No Other Permitted Uses Except as otherwise set forth in this Agreement, Licensee shall not (or enable others): (i) rent, lease, lend, sell, redistribute, or sublicense Kai Software, in whole or in part, (ii) use Kai Software for any purpose not expressly permitted by this Agreement, (iii) install, use or run the SDK on any non-KaiOS Devices, (iv) copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of Kai Software or any services provided by Kai Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), (v) exploit any services provided hereunder in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by KAI, by implication, estoppel, or otherwise. This Agreement does not grant Licensee any rights to use any trademarks, logos or service marks belonging to KAI. If Licensee makes reference to any KAI's products or technology, Licensee agrees to comply with the guidelines furnished by KAI as modified by KAI from time to time. 2.5 Updates If Updates are made available by KAI, the terms of this Agreement will govern such Updates. 3. Licensee Obligations 3.1 General Licensee hereby warrants to KAI that all information provided to KAI by Licensee will be current, true, accurate and complete. 3.2 Use of Kai Software Licensee agrees that: (a) It will only use Kai Software for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations; (b) It will not use Kai Software or any services for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act; (c) The Application will be developed in compliance with the Documentation and the Developer Requirements; and (d) It will not create any Application that would disable, hack or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms in the Kai Software. 4. Digital Signing of Applications All Applications must be signed with an KAI-issued certificate in order to be installed on KaiOS Devices in accordance with the process set forth in Exhibit B. 5. Indemnification To the extent permitted by law, Licensee agrees to indemnify, defend and hold harmless KAI, its directors, officers, employees, independent contractors and agents (each a "KAI Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorney's fees and court costs) (collectively "Losses") incurred by a KAI Indemnified Party as a result of any claims that the Applications or the distribution, use or importation of the Applications or metadata violate or infringe any third party intellectual property or proprietary rights, data collection or privacy any claims arising out of KAI's permitted use, promotion or distribution of the Application(s), related trademarks and logos, or images and other materials that Licensee provides to KAI. 6. Term and Termination 6.1 Term This Agreement shall become effective when accepted by Licensee and shall remain in force unless terminated by either party upon one (1) month written notice, or as set out below. 6.2 Termination This Agreement will terminate, effective immediately upon notice from the non-breaching party, if the other party: (a) fails to comply with any term of this Agreement; (b) commences an action for patent infringement against non-breaching party; (c) becomes insolvent, fails to pay debts when due, dissolves or ceases to do business, file for bankruptcy; or (d) engages, or encourage others to engage, in any fraudulent, improper, unlawful or dishonest act relating to this Agreement, including, but not limited to, embezzlement, alteration or falsification of documents, theft, inappropriate use of computer systems, bribery, or other misrepresentation of facts. 6.3 Effect of Termination Upon the termination of this Agreement for any reason, Licensee shall immediately cease all use of Kai Software and services and erase and destroy all copies of Kai Software, excluding any archival copies maintained in accordance with Licensee's standard business practices required to be maintained by applicable law, rule or regulation. The provisions which by their nature are intended to survive termination or expiration of this Agreement shall survive. 7. NO WARRANTY KAI SOFTWARE AND ANY SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KAI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO KAI SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. 8. LIMITATION OF LIABILITY IN NO EVENT WILL KAI BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE. 9. GENERAL LEGAL TERMS 9.1 Consent to Collection and Use of Data. Licensee agrees that KAI may collect and use technical and related information, including but not limited to information about Applications, computer, system software, other software and peripherals, that is gathered periodically to facilitate the provision of software updates and other services to Licensee (if any) related to Kai Software, and to verify compliance with the terms of this Agreement. KAI may use this information, as long as it is in a form that does not personally identify Licensee, to improve Kai Software, our products or to provide services or technologies to Licensee and other customers. 9.2 Assignment. Licensee may not assign or transfer this Agreement by operation of law, merger, or any other means without KAI's express prior written consent. 9.3 Relationship of the Parties. This Agreement will not be construed as creating any other agency relationship, or a partnership, joint venture, fiduciary duty, or any other form of legal association between Licensee and KAI. 9.4 Notices. Any notices relating to this Agreement shall be in writing. Notices will be deemed given by when sent to the party's address provided in connection with this Agreement (e-mail suffices when sending notices to Licensee). 9.5 Severability. If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. 9.6 Waiver and Construction. Failure by a party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement. 9.7 Export Control. Kai Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using Kai Software, Licensee represents and warrants that Licensee is not located in any such country or on any such list. Licensee also agree that Licensee will not use Kai Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 9.8 Dispute Resolution; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. In the event that any dispute, claim or controversy arises between the parties in connection with or relating to this Agreement, including any question concerning the existence, validity, breach, termination or interpretation thereof (collectively, "Dispute"), the aggrieved party shall give the other party a written notice of Dispute ("Notice of Dispute") with a description of the Dispute in reasonable detail. The parties shall negotiate in good faith and exercise reasonable efforts to settle any notified Dispute within a period of thirty (30) days following the delivery of the Notice of Dispute. If the parties fail to resolve the Dispute within such period, the Dispute shall be finally settled by arbitration by a single arbitrator in accordance with the UNCITRAL Arbitration Rules ("Rules") in force when the notice of arbitration is submitted in accordance with such Rules, as modified by the HKIAC Procedures for the Administration of International Arbitration. The place of arbitration shall be in Hong Kong at the HKIAC. The appointing authority of the arbitrator shall be the HKIAC. The language of the arbitral proceedings shall be English. The arbitral award shall be final, binding on the parties and non-appealable to such extent permissible by law. 9.9 Entire Agreement; Governing Language. This Agreement constitutes the entire agreement between the parties with respect to Kai Software licensed hereunder and supersedes all prior understandings and agreements regarding its subject matter. This Agreement may be modified only: (a) by a written amendment signed by both parties, or (b) to the extent expressly permitted by this Agreement. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. EXHIBITS: Exhibit A Application Requirements Any Application developed using Kai Software must meet all of the following criteria and requirements: APIs and Functionality: 1. Applications may only use Documented APIs in the manner prescribed by KAI and must not use or call any private APIs. 2. An Application may not itself install or launch other executable code by any means, including without limitation through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise. No interpreted code may be downloaded or used in an Application except for code that is interpreted and run by KAI's Documented APIs and built-in interpreter(s). 3. Without KAI's prior written approval, an Application may not provide, unlock or enable additional features or functionality through distribution mechanisms other than KaiOS Store. 4. An Application may only read data from or write data to an Application's designated container area on the device, except as otherwise specified by KAI. 5. Required API implementations All Applications must implement the following APIs as soon as they are made available to Licensee by KAI. i. Payment/Billing API All payment processing functionalities in the Application (in-app purchases, subscriptions, purchase of goods/services and alike) must be implemented solely using the payment API provided by KAI, and must use KAI's branding and UI elements as specified in the applicable Documentation. Use of other payment APIs in the Application is prohibited. ii. Advertisement API Advertisement API enables Applications to display advertisements to the user. iii. Analytics API Analytics API is used to collect metrics from the Applications (e.g. which applications have been downloaded, which applications are used, how often, how long). iv. Kai Account API Kai Account API is used to identify the user account. User Interfaces and Data: 1 Applications must comply with the Documentation provided by KAI. 2 Any form of user or device data collection, or image, picture or voice capture or recording performed by the Application (collectively "Recordings"), and any form of user data, content or information processing, maintenance, uploading, syncing, or transmission performed by the Application (collectively "Transmissions") must declare to KAI and comply with all applicable privacy laws and regulations as well as any requirements from KAI's privacy terms 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. Local Laws, User Privacy, Location services, Mapping and Payments: 1. Applications must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which Applications 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: Applications 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. 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. 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 KAI or its licensors, or to collect, disseminate or use information about users for any unauthorized purpose. 2. 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. In addition, 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. 3. For Applications that use location-based APIs for real-time route guidance (including, but not limited to, turn-by-turn route guidance and other routing that is enabled through the use of a sensor), Licensee must place the following notice (or substantially similar) in the end user license agreement: LICENSEE USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT LICENSEE SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE. 4. Applications must not disable, override or otherwise interfere with any KAI-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 location 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 location data or perform any other actions for which the user's consent has been denied or withdrawn. 5. If an Application accesses the Google Mobile Maps (GMM) service through the maps API, use of the GMM Service is subject to Google's Terms of Service. If Licensee does not accept such Google Terms of Service, including, but not limited to all limitations and restrictions therein Licensee may not use the GMM service in the Application. Licensee acknowledges and agrees that use of the GMM Service in Applications will constitute the Licensee's acceptance of such Terms of Service. Content and Materials: 1. Any master recordings and musical compositions embodied in Applications must be wholly-owned by Licensee or licensed to Licensee on a fully paid-up basis and in a manner that will not require the payment of any fees, royalties and/or sums by KAI to Licensee or any third party. 2. If the Application includes or will include any other content, Licensee must either own all such content or have permission from the content owner to use it in the Application. 3. Applications must not contain any obscene, drugs, gambling, violence, alcohol, pornographic, offensive or defamatory content or materials of any kind (text, graphics, images, photographs, features, etc.), or other content or materials that in KAI's reasonable judgment may be found objectionable. 4. 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. 5. If the Application includes any FOSS, Licensee agrees to comply with all applicable FOSS licensing terms. Licensee also agrees not to use any FOSS or take any action in the development of the Application in such a way that would cause the non-FOSS portions of Kai Software to be subject to any FOSS licensing terms or obligations. Cellular Network: 1. If an Application requires or will have access to the cellular network, then additionally such Application: Must comply with KAI's best practices and other guidelines on how Applications should access and use the cellular network; Must not in KAI's reasonable judgment excessively use or unduly burden network capacity or bandwidth; May not have Voice over Internet Protocol (VoIP) functionality using the cellular network. Additional Services: From time to time, KAI may provide access to additional services for Licensee 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 Licensee elects to use such services, the usage will also be subject to those separate terms and conditions. KAI may change these Developer Requirements at any time. New or modified Developer Requirements will not retroactively apply to Applications already in distribution. In order to continue using Kai Software or any services, Licensee must accept and agree to the new Developer Requirements. If Licensee does not agree to new Developer Requirements, Licensee's use of Kai Software and any services can be suspended or terminated by KAI. Exhibit B Signing of Application Licensee may obtain one or more production digital certificates from KAI, subject to a maximum number as reasonably determined by KAI, to be used for the sole purpose of signing Application(s) prior to submission of the Application to KAI or limited distribution of Application for use on KaiOS Devices. In relation to this, Licensee represents and warrants that it: (a) will not take any action to interfere with the normal operation of any KAI-issued digital certificates or schematics; (b) is solely responsible for preventing any unauthorized person from having access to digital certificates and corresponding private keys given by KAI and it will use the best efforts to safeguard digital certificates and corresponding private keys from compromise; (c) immediately notify KAI in writing if Licensee has any reason to believe there has been a compromise of any of digital certificates or corresponding private keys; (d) will not provide or transfer KAI-issued digital certificates to any third party, nor use digital certificate to sign a third party's application; and (e) will use KAI-issued certificates exclusively for the purpose of signing Applications for testing, submission to KAI and/or limited distribution for use on KaiOS Devices as contemplated under this Agreement, and only in accordance with this Agreement. Licensee further represents and warrants to KAI that the licensing terms governing the Application, or governing any third party code or FOSS included in the Application, will be consistent with and not conflict with the digital signing or content protection aspects of the Agreement or any of the terms, conditions or requirements of this Agreement. In particular, such licensing terms will not purport to require KAI to disclose or make available any of the keys, authorization codes, methods, procedures, data or other information related to the Security Solution, digital signing or digital rights management mechanisms utilized as part of the Agreement. If Licensee discovers any such inconsistency or conflict, it shall immediately notify KAI of it and will cooperate with KAI to resolve such matter. KAI may cease distribution of any affected Applications and refuse to accept any subsequent Application submissions from Licensee until such matter is resolved to KAI''s reasonable satisfaction.
I have read and agree to these terms and conditions.