TosSoft Terms of Service for Developers

DEFINITIONS
For the purposes of this Agreement, the following terms will have the following meanings:

Application or Applications:
applications, software, games or any other digital material distributed or offered by the Developers through TosSoft.
Developer:
any natural person, legal entity, company, partnership, trust, fund or vehicle who uses TosSoft to offer and distribute (directly or by authorising its distribution) Applications through TosSoft in accordance with this Agreement.
Developer Account:
a publication account provided by TosSoft to a Developer which allows it to use TosSoft and upload and distribute Applications through TosSoft.
Device or Devices:
any IT equipment including without limitation smartphones, tablets, televisions, devices for “automotive use” or of any other type that can be used to access TosSoft and to download Applications offered through TosSoft.
TosSoft:
the software owned by or licensed to UTD and services provided by UTD (or UTD Affiliates or third parties in the terms set forth by UTD), including, without limitation, the web, the TosSoft’s native application for Android, and TosSoft’s native AppStore for Android; which allows Developers to upload, offer and distribute Applications directly to the Devices of Users, including any in-app payment or other features provided or offered by TosSoft through the software.
User or Users:
any user of TosSoft.
UTD:
TosSoft Technologies, S.L., with corporate address at Avda. Andalucía, 31, Planta ent. Puerta Of 4, 29006 Málaga, Spain and Tax Identification Number B92461524
UTD Affiliates:
any entity controlling, controlled by or under common control with UTD, where control means the direct or indirect ownership of more than 50% of such entity’s capital or equivalent voting rights.
ACCEPTANCE OF THIS AGREEMENT
These terms form an agreement (the “Agreement”) that constitutes a legally binding contract between the Developer and UTD regarding the use of TosSoft by the Developer and the upload and/or offer and/or distribution to Users of Applications by the Developer through TosSoft. By using TosSoft, the Developer can make Applications available to Users. By means of this Agreement, TosSoft will host the Application, but not any content provided through the same that it is not included in the Application.
In the event there is a separate written agreement between the Developer and UTD regarding the distribution of the Applications through TosSoft and there is any inconsistency between such separate written agreement and this Agreement, such separate written agreement shall prevail to the extent of the inconsistency.

During the term of this Agreement, the Developer expressly consents to and authorises:

– That TosSoft displays the Applications (and the materials provided together with the Applications) and makes them available to the Users, so the Users can view its description, download, install, use and/or update them. This authorization applies to TosSoft.com website, the TosSoft native application for Android and its native AppStore for Android as well as any of the official TosSoft Technologies, S.L. content channels, any API or technology that allows third parties to access and display the Applications.

– That TosSoft creates material such as videos, images or texts about the Applications, and uses any material within the Application or provided or published by the Developer, in order to promote through any mean TosSoft and the availability of the Applications within TosSoft.

In order to use TosSoft and upload, offer and distribute the Applications, the Developer must agree to this Agreement and register with a Developer Account. The Developer cannot access and use TosSoft if it does not accept this Agreement or a separate written agreement in addition to this Agreement, and registers with and activates the Developer Account. The Developer undertakes to provide complete and accurate information through the Developer Account and to keep it up to date at all times, which shall be processed by UTD in accordance with the privacy policy in https://en.TosSoft.com/aboutus/privacy. The Developer is solely responsible for maintaining the confidentiality of the credentials and passwords of the Developer Account. The Developer agrees that it will be solely responsible for all activities under its Developer Account. If the Developer becomes aware of, or suspects of, any unauthorized use of its credentials and/or password of its Developer Account, it must notify it immediately to TosSoft Technologies, S.L.

The Developer represents and warrants that it has full capacity and is authorized to enter into this Agreement, and that it does not conflict with any other contract or obligation to which it is subject.
If an individual consents to this Agreement on behalf of a Developer who is an entity, company, partnership, trust, fund or vehicle, such individual represents and warrants that he/she has the full legal authority to bind such Developer. If he/she does not have the necessary legal authority, he/she shall not consent to the Agreement and the Developer shall not be allowed to use TosSoft.

USE OF TosSoft BY THE DEVELOPER
The Developer shall access and use TosSoft only as necessary for the purposes under this Agreement. The Developer shall not use TosSoft in any manner inconsistent with this Agreement or which infringes third party rights or violates any applicable laws or regulations.

The Developer shall not engage in any activity that interferes with, disrupts, damages or accesses in an unauthorised manner TosSoft, the Devices, servers, networks or other properties or services of UTD, UTD Affiliates or any third party.

The Developer shall be responsible for providing the files and uploading its Application or Applications (together with any descriptions, images, icons, url addresses and videos) to TosSoft, providing all the necessary information about each Application and delivering assistance for any matter of the Applications not related with TosSoft, as well as accurately representing and conveying the required authorizations for the Applications to properly work with the Users’ Devices. The Developer is responsible for retaining a back-up copy of the files and materials provided.

When providing the files and materials of the Applications, the Developer shall ensure that they comply with the policies and publication criteria in effect in TosSoft and shall not hide nor misrepresent any features of the Applications from such review. Compliance with such policies and criteria is a condition of essence of this Agreement.

The Applications shall be subject to the TosSoft evaluation and quality assurance process to ensure its compliance with policies and publication criteria and with this Agreement (without any obligation of monitoring for UTD and without limiting any warranty granted by the Developer under the Agreement). Such policies and publication criteria may be reviewed and updated from time to time with a reasonable prior notice. If the Developer changes any Application after providing it to TosSoft, it must resubmit it again for the above evaluation purposes. The Developer agrees to cooperate in the evaluation process and to answer questions and provide information and materials reasonably requested for such purpose. If the Application is rejected after the above process, the Developer will be duly notified.

The Developer represents and warrants it shall have the sole responsibility for its Applications and for its upload, offer and distribution through TosSoft and that TosSoft does not have any responsibility towards the Developer nor towards third parties in relation to such Applications nor for the consequences of the Developer’s actions, including any damage or loss that TosSoft may experience.

The Developer shall be solely responsible for the appropriate operation, for any and all warranties, for User assistance and for supporting each of the Applications. The Developer shall provide valid and accurate contact information to Users in the Application for customer support and legal purposes, which shall be answered expeditiously.

The Applications must be able to be installed and work in Devices and in accordance with its description, without causing any adverse effect. The Developer shall be responsible for the Applications, including its administration, management, maintenance and updating and for providing support to Users. The Developer will use all reasonable commercial efforts to ensure that any fault in or of the Applications is immediately corrected.

There is no commitment under this Agreement regarding the location and promotion for the Applications. The Developer agrees that TosSoft allows Users to rate the Applications and write their opinions about them. The ratings of the Applications can be used to determine their positioning in TosSoft. In addition, there is no warranty regarding any commercial or sales result deriving from making the Applications available through TosSoft.

UTD does not warrant that TosSoft is fault free or free of interruptions and shall have no liability to the Developer for any failure of TosSoft, whether of a technical or other nature. Operation of TosSoft may be suspended for improvement and corrective or preventive maintenance purposes, with a reasonable commercial effort to keep the suspension as short as possible.

UTD reserves the right to change TosSoft and the services provided through it (including supporting it by advertising revenue and display advertisement and promotions, based on content, queries or other information; and including the provision of Applications on a chargeable basis when determined by the Developer), or impose limits or restrictions to its use, or any part thereof, at any time, with or without notice.

LICENSE GRANT
The ownership of any intellectual property rights in the Applications shall remain with the Developer or its licensors and UTD or UTD Affiliates shall not acquire any right, title or interest in or to any Applications, other than the licenses set forth below. Title, risk of loss, responsibility for and control over the Applications shall, at all times, remain with the Developer.
The Developer grants UTD and UTD Affiliates, who accept, a non-exclusive, royalty free, worldwide license to:

a) use, copy, run, perform, analyze and edit the Applications for evaluation and quality assurance purposes and monitor compliance with this Agreement (directly by UTD or UTD Affiliates or by any third party designated for such purpose).

b) host, copy, display, promote, offer, market, distribute, make available to Users and allow Users to download the Applications through and in the operation and marketing of TosSoft (including the granting of licenses to Users), and making improvements to TosSoft.

c) use, display and create materials derived of the Applications (including materials provided together with the Applications, materials published by the Developer regarding the Applications and the trademarks of the Developers and the Applications), for the promotion and marketing of TosSoft (including running promotional activities) or the availability of the Applications in TosSoft or the services provided through TosSoft.

Such licenses shall be in force during the period that Applications are available on TosSoft (e.g. until Applications are removed by Developer as provided under the following Clause).

The Users shall be authorized and granted a non-exclusive, worldwide and perpetual license to run, display and use the Applications downloaded in the Devices through TosSoft subject to any EULA established by the Developer within each Application, which shall be consistent and subject in any case to this Agreement. Such EULA shall be solely between the Developer and the User and the Developer is solely responsible for it conforming to applicable laws.
TERM, TERMINATION AND PRODUCT REMOVAL
This Agreement will take effect from its acceptance by the Developer and will remain in effect indefinitely until the Developer removes all Applications from TosSoft by using the tools provided on TosSoft and cancels its Developer Account terminating UTD’s and UTD Affiliates’ distribution rights so that no Application is available for distribution on TosSoft.
In case the Developer removes only part of the Applications, this Agreement shall cease to apply to the removed Applications and those removed Applications shall not be available for distribution on TosSoft.

Upon termination or removal, the Applications shall be deleted from TosSoft, provided that UTD or UTD Affiliates may keep a copy of the Applications for the purpose of legitimate technical support of existing Users.

The removal of any Application to prevent further distribution through TosSoft: a) does not affect the license to Users who have acquired or downloaded the Application prior to its removal; b) does not delete the Application from Devices or from any other location on TosSoft where acquired applications and downloads may have been stored on the User’s behalf.

UTD is not under any obligation to supervise or control the Applications or their content. If UTD, at its own discretion or at the request of any third party, determines that an Application: a) infringes any applicable laws or third party rights; b) breaches this Agreement (including any policies or criteria referred to in it); c) infringes agreements with Device manufacturers and authorized providers; or d) otherwise causes a negative impact for UTD, UTD Affiliates or its authorized providers, or if it creates an obligation of any kind or there are complaints by Users about the content or quality of the Application; UTD reserves the right to reject the Application, by removing, suspending, and/or reclassifying it on TosSoft.
Upon termination of this Agreement, the Developer shall immediately cease all use of TosSoft. UTD will not be liable for compensation, indemnity, or damages as a result of terminating this Agreement in accordance with its terms, without prejudice to any other right or remedy it may have.

REPRESENTATIONS AND WARRANTIES
The Developer represents and warrants to UTD and UTD Affiliates that:

– It has all the rights, title and interest (including intellectual property rights) related to its Applications, which are necessary to assume any obligations and grant the licenses as provided in this Agreement.
– The Applications do not infringe any third party rights and all consents, approvals and licenses required to provide, distribute and license the Applications in accordance with this Agreement have been duly obtained.
– The Applications comply with all requirements and obligations in this Agreement.
– The Applications are not subject to any use, export, re-export, import, sell or transfer limitations under any applicable laws.
– Uploading, listing, marketing, distributing, installing and using the Applications in TosSoft do not violate any agreements to which the Developer is a party or of which the Developer is otherwise aware.
– The Applications do not contain any viruses, hidden content, hacking capabilities, purposes or properties, or other malicious applications (including, for example, any “trap doors,” “worms,” “Trojans,” or “time bombs”) or other unauthorized or hidden programs, and do not collect any User information without its consent.
– The Applications do not contain any unauthorized third party content or prohibited content and comply with the applicable laws of each jurisdiction, including foreign export control laws.
– The information provided within the Developer Account is true, accurate, current and complete.
– The Applications shall protect the privacy and data protection of Users.
In particular and without limitation, when using third party material, the Developer represents and warrants that the Developer has the rights to distribute such third party material within the Applications. The Developer undertakes that it shall not upload or make available through TosSoft any material subject to third party intellectual property rights unless the Developer is the owner of the aforementioned third party intellectual property rights or has been duly authorised by the legitimate owner to upload or display such third party material.
The Developer represents and warrants that it and its Applications are in compliance with all applicable laws.
The Developer agrees to defend, indemnify and hold harmless UTD and UTD Affiliates from and against any and all third party claims and all liabilities assessments, losses, costs or damages resulting from or arising out of any breach by the Developer of this Agreement, any separate written agreement relating to TosSoft and/or any of the warranties herein.
ECONOMIC CONDITIONS AND REVENUE SHARE
Each of the Parties must bear its own costs in connection with the performance of this Agreement and fulfilment of the obligations herein.
Revenue share only applies to Developers and UTD when the Applications distributed through TosSoft include offers for In-App Products (as defined below) that are managed through the in-app service provided by TosSoft. In case In-App Products are offered through any service other than that provided by TosSoft, no revenue share will apply and Developer shall not have to pay any amount for such reason to TosSoft. For the purposes herein “In-App Products” mean digital products that are intended to be accessed or used within the Application, such as additional or enhanced functionalityies, media content, or subscription access to content or services.
The price (“Price”) for the purchase of the In-App Products will be solely determined by the Developer. If at any point TosSoft was to set out any pricing guidelines then the Developer agrees that the In-App Products managed through the in-app service provided by TosSoft must be priced in accordance with any such pricing guidelines established by TosSoft.

The Developer shall be responsible for claims arising from the change of the Price, for transition from free to paid In-App Products and for termination of the In-App Products.

Should an Application distributed through TosSoft have In-App Products, Users must be made aware of this, prior to the purchase of such feature in a clear and transparent manner. During the payment process for In-App Products, the Developer must ensure that the User consents to pay and must make the User aware that such payment shall be made, without limiting and in addition to any applicable requirements under applicable regulations.

The Developer is solely responsible for any and all liabilities arising from or in connection to the In-App Products and for its compliance with any applicable laws and regulations. In-App Products managed through the in-app service provided by TosSoft must also comply with policies and distribution criteria established for TosSoft from time to time.

The revenue share between the Developer and UTD arising from the sale or distribution of In-App Products managed through the in-app service provided by TosSoft shall be 20% of the Net Revenues for UTD and 80% of the Net Revenues for the Developer. “Net Revenues” for the purposes of this paragraph means the difference between (i) the total amount paid by the User in connection with the In-App Product, and (ii) any applicable taxes, any reasonable transaction costs (including without limitation any currency exchange costs and the separate fee charged to the User in relation to processing of payments) and any cancellation or reverse charges, and (iii) refunded amounts, bad debts, cancelled amounts or other amounts of similar nature. If the Application is free and does not have In-App purchases, the Developer and UTD will not be entitled to receive any amounts.

The revenue share corresponding to the Developer shall be displayed in the Developer Account and paid by UTD to the Developer under the terms herein provided and any other terms applicable as made available through the Developer Account. The Developer may decide at any time to withdraw its revenue share from its Developer Account, provided that the minimum to proceed with the withdrawal of such earning is one thousand Euros (1.000 €).

The Developer shall provide UTD with all financial, tax and banking information requested in order to make payment of amounts owed under this Agreement and to comply with any KYC, money laundering or similar obligations that may apply. In particular, the Developer shall submit to UTD the following details: – a legal and valid email address for correspondence. – a legal and valid document evidencing the identity, such as a Tax Identification Number or a Tax Residence Certificate. – a legal and valid bank account and other bank information where its is to receive the revenue share of the In-App Products.

The Developer will notify UTD of any changes to the required information. Failure to provide such information, or failure to keep such information current and accurate, may result in removal of the relevant Application from TosSoft and payments to the Developer being withheld.

UTD will issue an invoice on behalf of the Developer within the first five (5) days of the month following the withdrawal by the Developer. After 2 years from the date in which the Developer is entitled to withdraw the revenue share as provided above, if the Developer has not requested the withdrawal or has failed to provide the documentation as required for UTD to be able to make the relevant payments, then the Developer’s right to receive such revenue share older than 2 years will expire and UTD shall retain such amounts that will be for all purposes regarded as UTD additional revenues. Additionally UTD is entitled to request any Developer to withdraw the full revenue shares available under the relevant Developer Account (even if below the limit set out for an ordinary withdrawal to be permitted) and any Developer failing to do so within a period of 3 months (including by not providing to UTD the documentation required to make such payments as provided herein) shall be deemed to have been finally waived by the Developer and the relevant amounts shall be retained by UTD and considered as UTD additional revenues.

UTD shall apply and deduct any withholding taxes to payments to the Developer under applicable law.

The Developer agrees that any payment of Net Revenues may be withheld in the event of a breach of this Agreement, of any applicable laws or if any amounts are owed by the Developer to UTD or to any UTD Affiliate.

In the event the currency of payment from User is different from the currency of the payment agreed with the Developer, all expenses and foreign exchange costs associated with completing the required foreign exchange conversions shall be deducted of the relevant payment.

The Developer will bear the bank fees charged to UTD relating to payments made to the Developer. UTD will be entitled to deduct such fees from the revenue share due to the Developer.

The Developer shall be responsible of complying with tax regulations applicable to its activity and cooperate with UTD furnishing any documentation required for UTD to comply with its tax obligations.

The Developer shall not take any action which is aimed at deviating from UTD the generation of revenue arising from the In-App Products that are managed through the in-app service provided by TosSoft in a way that it would reduce the amount that UTD is entitled to receive from the relevant In-App Products. In particular and without limitation, any trial version of any Application distributed through TosSoft should generate Net Revenues subject to the revenue share between the Developer and UTD if and when it generates any revenue from In-App Products that are managed through the in-app service provided by TosSoft. Failure to comply with this restriction entitles UTD to receive the amounts that it would have otherwise received and suspend the relevant Developer Account and the distribution of its Applications through TosSoft, without limiting other actions available to UTD. In any case, UTD will be entitled to offset the amounts due by the Developer hereunder with any other amounts that the Developer would be entitled to receive from UTD.

PERSONAL DATA
If there is any collection of personal data related to the Users (hereinafter, “User Information”), the Developer will be solely responsible for protecting privacy and legal rights of Users and guaranteeing the confidentiality of that User Information, ensuring that the collection, processing, storage and transmission of the User Information is in accordance with all applicable rules, regulations and laws, including the laws protecting personal data. Furthermore, the Applications may only use that User Information for the limited purposes for which the User has given consent to do so or for which the Developer is entitled according to applicable laws. If the Applications store personal or sensitive information provided by Users, the Developers agree to do so securely and only for as long as it is needed. The Developer will ensure that the aforesaid processing is undertaken in a lawful manner. The Applications must comply with all applicable privacy laws and regulations.
The Developer will refrain from transferring User Information to UTD or to any UTD Affiliate in a manner that could violate any rule, regulation or law, being liable if it does so.
The Developer will implement such physical, technical, organizational and administrative measures as may be necessary to protect the User Information collected in connection with the Applications from any unauthorised use, alteration, disclosure, distribution or access.
In case the Developer access any data about the Users purchasing In-App Products provided through TosSoft for the purposes of the revenue share set forth in Clause 7.2, the Developer shall only use such data for the management of such revenue share and not for other purpose, complying with any requirement under any applicable regulations.
LIABILITY LIMITATION
UTD’s and UTD Affiliates’ liability for damages, whether based on negligence, breach of contract, breach of warranty or any other basis, regardless of whether the damage may be foreseen, will be limited to the actual damages suffered by the Developer. UTD and UTD Affiliates’ will not be liable for any other kind of damages, including, without limitation, lost profits, lost data or business interruption.
To the extent permitted by applicable laws, in no event will UTD’s and UTD Affiliates’ total liability to the Developer for any damages, deriving from or related to this Agreement, exceed the total amount of the Developer’s revenue share under this Agreement during the last 12 months or the amount of EUR 10,000, whichever is higher.
To the maximum extent permitted by law, the Developer understands and expressly agrees that its use of TosSoft is solely at its risk and that the information, documents, software and other materials contained on TosSoft are provided “as is”. UTD and UTD Affiliates do not warrant or guarantee that Uptodow will be:

(a) compatible with all or any hardware and software;
(b) available all the time or at any specific time, uninterrupted, secure or error free; or
(c) suitable for your requirements or meet any specific level of performance or functionality.
To the fullest extent permitted by law, UTD and UTD Affiliates expressly exclude all representations, conditions, warranties or other terms which apply to TosSoft and associated content/information including any implied warranties of satisfactory quality, merchantability, fitness for a particular or any purpose or non-infringement which might otherwise apply but for this Clause.

If in a relevant jurisdiction, these limitations and exclusions are not permitted then our liability shall be limited and excluded to the fullest extent permitted by law.

GENERAL
UTD may make changes to this Agreement from time to time. In such cases, UTD will make a new copy of the Agreement available at TosSoft and any new additional terms will be made available to the Developer from within, or through, TosSoft and may, but it is not obliged to, provide a notice to the Developer. Changes to the Agreement will become effective and be deemed accepted by Developer: (a) immediately for Developers registering a Developer Account and entering into the Agreement, after the notification is posted; or (b) for pre-existing Developers, on the date specified in the notice or publication, which will be no sooner than 30 days after the changes are posted (except for changes required by law which will be effective immediately). If the Developer does not agree with the changes, it must terminate this Agreement and its Developer Account and its use of TosSoft, being this the only and exclusive remedy in such regard. The continued use of TosSoft by the Developer after the date of entering into force of the change of this Agreement, will be deemed as an agreement by the Developer to the modified terms of this Agreement.
The Developer agrees that UTD may provide it with notices, including those regarding changes to the Agreement, by email, regular mail, or postings on TosSoft.
The Developer may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent. UTD may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of our rights or obligations arising under it, at any time during its term.
Any notice that a Party wishes or is required to give to the other under this Agreement must be in English and in writing, and addressed to the attention of the appropriate person by certified mail at the address of the corresponding Party as indicated below:

a) If the Notice is addressed to UTD: Address: Avda. Andalucía, 31, Planta ent. Puerta Of 4, 29006 Málaga, Spain. To the attention of: Legal
b) If the Notice is addressed to the Developer, to the address for that purpose appearing in the Developer Account.
If the deadline for giving a notice is Saturday, Sunday or a national holiday, the term for giving it will be extended to the following business day.

APPLICABLE LAW AND JURISDICTION
This Agreement is governed by the general laws (derecho común) of the kingdom of Spain. Any dispute between the parties in relation to this Agreement shall be resolved by the courts and tribunals of the city of Málaga, waiving any right to any other jurisdiction.