KaiOS Application Submission and Distribution Agreement
Last updated April 18, 2019
ScopeThis KaiOS Application Submission and Distribution Agreement (“Agreement”) apply to all developers wishing to submit to and distribute applications on the KaiStore. The Agreement forms a valid contract between you (“you” or “Developer”), 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 12/F, 133 Wai Yip Street, Kwun Tong, Kowloon, 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 submitting and distributing the Applications to KAI. You accept these terms by clicking on the applicable “I accept” button (or similar) 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. Definitionsin this Agreement: “Application” means one or more software programs developed by Developer in compliance with the Documentation and Developer Requirements, under Developer’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. “Application Information” means screen shots, images, artwork, icons and/or any other copyrighted text, descriptions, representations or information relating to an Application that Developer provides to KAI. “Documentation” means any technical or other specifications or documentation that KAI may provide to Developer for use in connection with Kai Software. “Documented API(s)” means the application programming interface(s) documented by KAI in the Documentation. “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. “KaiStore” means the service portal application KAI has created which allows end users to download services and applications. “Security Solution” means the proprietary content protection system of KAI to be applied to Applications distributed on the KaiStore to administer KAI’s standard usage rules for Applications, as such system and rules may be modified by KAI from time to time. “Term” means the period described in Section 5.
2. Application SubmissionDeveloper may submit the Application for distribution via KaiStore once the Application has been adequately tested. The process of submitting and distribution is set forth in Exhibit B.
3. License to KAI and End UserBy submitting the Application to the KaiStore, you grant KAI a nonexclusive, worldwide, and royalty-free license to copy, distribute and make available and use Applications and use your branding material and Application Information submitted with the Application solely for the purposes of (i) distributing the Applications through KaiStore, and (ii) promoting Application and its inclusion in the KaiStore. Unless the Application includes a separate end user license agreement (EULA), Developer grants each user a non-exclusive, worldwide, and perpetual license to use Applications on their devices. If Developer has included a separate EULA and obtained the user’s express consent to the EULA, the user’s rights will be governed by the EULA instead of this paragraph.
4. IndemnificationTo the extent permitted by law, Developer 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, Application Information or the distribution, use or importation of the Applications, Application Information 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 Developer provides to KAI.
5. Term and Termination
5.1 TermThis Agreement shall become effective when accepted by Developer and shall remain in force unless terminated by either party upon one (1) month written notice, or as set out below.
5.2 TerminationThis 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.
5.3 Effect of TerminationUpon the termination of this Agreement for any reason, KAI shall delete the Application from the KaiStore as soon as practicable. KAI may keep archival copies in accordance with KAI’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.
6. WARRANTYIn addition to any other representations and warranties, Developer additionally represent and warrant that:
- It shall comply with all applicable laws, this Agreement, as well as any Documentation, technical guidelines and other developer requirements issued by KAI or its partners from time to time;
- Developer will not violate, misappropriate, or infringe any intellectual property rights, or other proprietary rights, rights of privacy, or rights of personality or any other right of any third party;
- Applications shall not contain nor distribute any viruses, spam, files, code malware or any other malicious software programs, technology or content that may harm or disrupt the operation of KaiOS; and
- Developer shall exercise all legally required care and diligence in connection with the design, manufacture, workmanship, testing, distribution and operation of the Applications.
7. LIMITATION OF LIABILITYIn 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.
8. GENERAL LEGAL TERMS
8.1 Consent to Collection and Use of Data.Developer 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 Developer (if any) related to KaiOS, 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 Developer, to improve Kai Software, our products or to provide services or technologies to Developer and other customers.
8.2 Assignment.Developer may not assign or transfer this Agreement by operation of law, merger, or any other means without KAI’s express prior written consent.
8.3 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 Developer and KAI.
8.4 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 Developer).
8.5 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.
8.6 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.
8.7 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, Developer represents and warrants that Developer is not located in any such country or on any such list. Developer also agree that Developer 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.
8.8 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 submittedin 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.
8.9 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.
Application RequirementsAny Application developed 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 KaiStore. 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 Developer 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:
- Applications must comply with the Documentation provided by KAI.
- 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.
- Applications must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which Applications may be delivered.
- 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.
- Any master recordings and musical compositions embodied in Applications must be wholly-owned by Developer or licensed 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 KAI to Developer or any third party.
- 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 the Application.
- 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.
- 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.
- If the Application includes any FOSS, Developer agrees to comply with all applicable FOSS licensing terms. Developer 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 KaiOS to be subject to any FOSS licensing terms or obligations.
- 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.
1. Submission to KAIDeveloper may submit the Application for consideration by KAI for distribution via KaiStore when Developer decides that the Application has been adequately tested and is complete. By submitting the Application, Developer represents and warrants that the Application complies with the Documentation and Developer Requirements then in effect. Developer further agrees that it will not attempt to hide or obscure any features, content or functionality in the submitted Applications from KAI’s review or otherwise hinder KAI from being able to fully review such Applications. In addition, Developer agrees to inform KAI in writing through if the Application connects to a physical device and, if so, to disclose the means of such connection (any other communication protocol and standard) and identify at least one physical device with which the Application is designed to communicate. Developer agrees to cooperate with KAI in this submission process and to answer questions and provide information and materials in connection with the submitted Application, as reasonably requested by KAI, including, without limitation, to provide KAI with access to or with samples of physical devices that connect to the Application.
2. Selection by KAI for DistributionDeveloper understands and agrees that KAI may, in its sole discretion: (a) determine that the Application does not meet all or any part of the Documentation or Developer Requirements then in effect; (b) reject the Application for distribution for any reason; or (c) select and digitally sign the Application for distribution via KaiStore. KAI 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 the Application development. 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 Applications.
3. DistributionApplications developed under this Agreement may be distributed through KaiStore, if selected by KAI. a. Delivery of Freely Available Applications via KaiStore If the Application is approved by KAI, it is eligible for delivery to end users via KaiStore by KAI and will be subject to certain revenue share set forth in Exhibit C. If Developer would like KAI to distribute the Application to end users via KaiOS platform as preloaded or for a fee, the parties need make a separate addendum to this Agreement. b. No Other Distribution Authorized Under this Agreement Except for the distribution of freely available Applications as set forth above, no other distribution of programs or applications is authorized or permitted hereunder.
4. RevocationKAI may cease distribution of the Application or revoke the digital certificate of any of the Applications at any time if KAI has reason to believe that such action is prudent or necessary (e.g. if any of digital certificates or corresponding private keys has been compromised or the Application contains malicious or harmful code or does not comply with the Developer Requirements or meet quality criteria).
Revenue ShareFor the purposes of this Agreement: “Advertising”meansallvisual or interactive advertisements that are displayed in or through the Applications. “Net Revenue”means total revenue receivable from the Advertising less any payments or revenues to third parties, payment processor fees, advertising hosting/agency fees, platform services fees, and sales, use, value added or similar taxes (as applicable). “Advertisement Inventory” means advertisements to be shown to the end users on or through the Applications. Consideration As consideration for distribution of the Application(s) under this Agreement, the parties have agreed to the following revenue share (“Revenue Share”): As regards the Net Revenue generated from Advertising: 30%of Net Revenue to Developer. 70%of Net Revenue to KAI. Reporting: Within thirty (30) days following the end of each calendar month, KAI will provide the Developer a report detailing the calculation of the applicable Net Revenue that shall be reviewed by the Developer. Unless the Developer rejects the report in writing within 10 business days, it shall invoice KAI accordingly. Payment: KAI shall pay the Developer the applicable Revenue Share in United States dollars (USD) by electronic funds transfer to the Developer’s designated bank account within thirty (30) days from the invoice date. The Developer shall ensure that it is able to receive Revenue Share in USD. The Developer shall be solely responsible for any additional fees (or deductions) related to the Revenue Share transfer to the Developer (such as currency exchange rates or international bank transfer fees). KAI may hold any payment of Revenue Share until the cumulative amount owed to the Developer totals at least US$500. Taxes: Each party shall pay all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of the Agreement and shall furnish evidence of such paid taxes as is sufficient to enable the other party to obtain any credits available to it. The parties shall comply with all applicable tax legislation.