AGREEMENT BETWEEN USER AND DNN CORP
The DNN Corp The Store Web Site is comprised of various Web pages operated by DNN Corp The Store.
The DNN Corp The Store Web Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the DNN Corp The Store Web Site constitutes your agreement to all such terms, conditions, and notices.
DNN Corp reserves the right to change the terms, conditions, and notices under which the Website is offered, including but not limited to any charges associated with the use of the Website. DNN Corp will have the right to modify and restate the terms and conditions at any time by posting a notice on the Website, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Website after such modifications will be deemed to be your conclusive acceptance of all modifications to the terms and conditions. If you are dissatisfied as a result of such modification(s), your only recourse is to immediately discontinue use of the Website.
LINKS TO THIRD PARTY SITES
The Website may contain links to other web sites ("Linked Sites"). The Linked Sites are not under the control of DNN Corp and DNN Corp is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. DNN Corp is not responsible for webcasting or any other form of transmission received from any Linked Site. DNN Corp is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by DNN Corp of the site or any association with its operators.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Website, you warrant to DNN Corp that you will not use the Website for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Website in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party's use and enjoyment of the Website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Websites.
BUYING PRODUCTS ON THE WEBSITE
If you purchase a Developer Product through the Website, you warrant that any payment method selected by you when purchasing a Developer Product shall enable you to make full and immediate payment for the requested products, including any recurring payments associated with such products. The Payment Service helps facilitate purchased transactions and is not the purchaser of the Developer's goods. DNN Corp will use reasonable efforts to assist Buyers with contacting Developers for support, but does not and cannot guarantee that support will be provided by Developers. When you purchase a Developer Product through the Website, you hereby consent to DNN Corp providing your contact information to the Developer who is selling such Developer Product.
SELLING PRODUCTS ON THE WEBSITE
As set forth above, the Website provides functionality which allows Developers to upload Developer Products to the Website and sell such Develop Products to Buyers via download from the Website. Developers provide Developer Products directly and assume responsibility for all aspects of their Developer Products, including any content or data contained in them and documentation provided in connection with them. All inquiries regarding Developer Products will be directed to the provider of the applicable Developer Product. DNN Corp does not provide, or exercise any control or oversight over, the Developer Products. DNN Corp retains the right to reject or remove Developer Products from the Website in DNN Corp’s sole discretion.
By posting, uploading, inputting, providing or submitting your Developer Product you warrant and represent that: (i) the Developer Product does not infringe, violate, or misappropriate any rights of any third party; and (ii) you own or otherwise control all of the rights to your Developer Product including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Developer Product. You hereby grant DNN Corp a worldwide, nonexclusive, sublicensable, perpetual, irrevocable, royalty-free, fully paid-up, transferable right and license to copy, modify, publicly display and publicly perform your User Submissions for the purpose of providing such Developer Products through the Website.
You will set the fees (the “Developer Product Fees”) you charge and the license terms (“Developer Product License Agreement”) for your Developer Products through the Website. At any time (other than during system maintenance or other outages) you may change the Developer Product Fees for your products through the Website. DNN Corp handles payment processing for Developer Product Fees. DNN Corp will collect and process credit card or other payment information from each Buyer of your Developer Products and, following DNN Corp’s verification of the Buyer’s credit card or other payment information, collect the Developer Product Fees. DNN Corp will maintain an account for you (your “Proceeds Account”) into which DNN Corp will deposit all of the proceeds DNN Corp has actually collected from buyers for your Developer Products. By no later than sixty (60) days following the end of each calendar month, DNN Corp shall pay you the amount deposited during that month after deducting Commission Fees (as defined below), bad debts (such as credit card returns or fraud), credit card transaction fees, disputed payments and refunds (the “Deductions”). Provided that (1) your Proceeds Account has a positive balance, (2) you are in good standing with the Store, and (3) the payment information you have submitted to DNN Corp is current, correct and complete, DNN Corp shall use good faith reasonable efforts to remit to you the current balance of your Proceeds Account every two weeks. If your Proceeds Account has a balance of one thousand dollars ($1,000.00) or more, you may request that DNN Corp make such payments by wire transfer.
DNN Corp fees (“Commission Fees”) shall be calculated on your Proceeds Account in accordance with the rate schedule set forth at http://store.dnnsoftware.com/make-money/become-a-seller.aspx after making all Deductions. DNN Corp shall be entitled to deduct the Commission Fees prior to remitting your income. When DNN Corp makes a payment to you, it shall provide you with accounting statements describing the gross proceeds DNN Corp actually received on your behalf during the period covered, Deductions and Commission Fees.
DNN Corp retains the right, but does not have the obligation, to immediately halt the provision of Developer Products, prevent or restrict access to the Website or take any other action in case of technical problems, infringing or objectionable material, inaccurate listings, inappropriately categorized products, or actions otherwise prohibited by applicable law, the procedures and guidelines contained on the Website, or for any other reason in the sole and absolute discretion of DNN Corp, and to correct any inaccurate listing or technical problems on the Website.
You agree that it is the Developer's responsibility to determine whether Developer Taxes apply to the transactions and to collect, report, and remit the correct Developer Taxes to the appropriate tax authority. You also agree that DNN Corp is not obligated to determine whether Developer Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction. If the item is shipped from outside Canada, the recipient of the item may be required to pay, upon delivery, Taxes. "Developer Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
ADDITIONAL TERMS APPLICABLE TO BUYERS AND SELLERS
BECAUSE DNN CORP IS NOT THE PROVIDER OF DEVELOPER PRODUCTS, IF A DISPUTE ARISES BETWEEN ONE OR MORE USERS OF THE WEBSITE (INCLUDING, WITHOUT LIMITATION, BETWEEN A BUYER AND A DEVELOPER), YOU RELEASE DNN CORP (AND ITS AFFILIATES, AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY DNN CORP.
Because DNN Corp is not the service provider in the actual transaction between a Buyer and a Developer with respect to Developer Products and is not the agent of either for any purpose, DNN Corp does not have the duty to resolve and will not be involved in resolving any disputes between Buyers and Developers related to or arising out of any such transaction.
USE OF COMMUNICATION SERVICES
The Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"), and you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. For the avoidance of doubt, the purchase and sale functions available to Buyers and Developers through the Website shall be considered a Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
- Upload files that contain software or other material protected by intellectual property laws (or other rights, including, without limitation, contractual rights or rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents.
- Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
- Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
- Conduct or forward surveys, contests, pyramid schemes or chain letters.
- Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
- Restrict or inhibit any other user from using and enjoying the Communication Services.
- Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
- Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
- Violate any applicable laws or regulations. DNN Corp has no obligation to monitor the Communication Services.
However, DNN Corp reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. DNN Corp reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever. DNN Corp reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in DNN Corp's sole discretion. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. DNN Corp does not control or endorse the content, messages or information found in any Communication Service and, therefore, DNN Corp specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized DNN Corp spokespersons, and their views do not necessarily reflect those of DNN Corp. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
DNN Corp does not claim ownership of the materials you provide to DNN Corp (including, feedback and suggestions) or post, upload, input or submit to any Website or its associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submission you are granting DNN Corp, its affiliated companies and necessary sublicensees a perpetual, irrevocable, worldwide, nonexclusive, royalty-free, fully paid-up, sublicensable, transferable right and license to use your Submission in connection with the operation of their businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission. No compensation will be paid with respect to the use of your Submission. DNN Corp is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in DNN Corp's sole discretion.
DNN Corp reserves the right, in its sole discretion, to terminate your access to the Website and the related services or any portion thereof at any time, without notice.
INDEMNIFICATION You shall defend, indemnify, and hold harmless DNN Corp, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to (i) your use or misuse of, or access to, the Website, (ii) your violation of the Terms of Service, or (iii) infringement by you, any third party using your account, or any Developer Product (including any portion thereof) of any intellectual property or other right of any person or entity, or (iv) failure to collect or pay Developer taxes. DNN Corp reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with DNN Corp in asserting any available defenses.
ENTIRE AGREEMENT; SEVERABILITY; NO WAIVER
COPYRIGHT AND TRADEMARK NOTICES
All contents of the Website are: Copyright 2002-2013 DNN Corp and/or its suppliers. All rights reserved. TRADEMARKS You will not submit any Submission or Developer Product to the Website which incorporates any branding that is similar to the trademarks of DNN Corp (including, without limitation, the marks “DNN Corp,” “DNN”) (collectively, “Company Trademarks”). No right or license to any Company Trademarks is granted herein, whether by implication, estoppel, or otherwise.
The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Any example companies, organizations, products, people or events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred. Any rights not expressly granted herein are reserved.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
DNN Corp respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow the procedures outlined below to contact DNN Corp. Please note that this procedure is exclusively for notifying DNN Corp and its affiliates that your copyrighted material has been infringed.
DNN Corp has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of DNN Corp’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy. It is DNN Corp’s policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that your work has been copied in a way that constitutes copyright infringement, please contact our Designated Agent by (1) following our Claim of Infringement Process, or by contacting our Designated Agent using the contact information provided at the end of this policy.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
DNN Corp will remove or disable access to the content referenced in the claim until the claim can be resolved. An email will be sent to the content provider notifying them that their content had been removed or disabled and will include the rights owner's (your) email address who submitted the claim.
Listing removal information
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the content that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the content provider, member or user;
2. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
3. A statement that the content provider, member or user has a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which DNN Corp is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, DNN Corp may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at DNN Corp’s discretion.
Designated Agent to Receive Notification of Claimed Infringement:
DNN Corp Store
c/o DNN Corp Corporation
155 Bovet Street, Suite 201
San Mateo, California 94402
Phone: (650) 288-3150
Fax: (650) 288-3191