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CNET Upload.com Protexis Services Agreement -- effective April 27, 2005
CNET Upload.com through its partner
Protexis provides
Customer Registration Services and Merchant Services (collectively, the 'Protexis Services')
on a per product basis to software publishers who have submitted products to the Upload.com
library. Your use of the Protexis Services is based on your acceptance, without modification,
of these terms, conditions and notices (this "Protexis Services Agreement"). Protexis reserves
the right, in its sole discretion, to modify this Protexis Services Agreement and the associated
fees, at any time, effective upon the date revised terms or fees are posted on this site without
additional notice to you. You should regularly review this website and this Protexis Services
Agreement to ensure that you are aware of any changes to your rights and obligations. Your
continued use of the Protexis Services constitutes your binding acceptance of this Protexis
Services Agreement, including any changes or modifications that Protexis may make.
The CNET Upload.com
Terms and Conditions,
and the CNET Networks Terms of Use are incorporated by reference into this Protexis Services Agreement.
Except as expressly set forth in this document, in the event of any inconsistency between this Protexis
Services Agreement and either the Network Terms of Use or the Upload.com Terms and Conditions,
the provisions of this Protexis Services Agreement will control. Subject to the terms of this
Protexis Services Agreement, you may contact Protexis at support@protexis.com
to cancel your
Protexis Services Agreement if any of the terms and conditions, or any future modifications,
listed below are not acceptable to you:
- This Protexis Services Agreement
- The Upload.com Terms and Conditions
- The CNET Network Terms of Use
CUSTOMER REGISTRATION SERVICES
Active Accounts and Cancellation.
You will be entitled to use the Customer Registration Services for so long as your Premium Listing
package account remains active with CNET Networks. Customer Registration Services are a monthly
service, as measured from the date of your purchase of your Premium Listing package. Your Premium
Listing fee covers 10,000 registrations of your product during each month.
MERCHANT SERVICES
Merchant Services provides software publishers functionality for trial and registration;
online payment processing; and licensing through three different bundled packages.
Trial and Registration.
Trial and registration services allow the end-user to download and try a product for a specific
period of time or for a specific number of uses after which time the product is disabled. You
specify the terms of the trial at the time you configure your Merchant Services bundle and you
may change those terms at any time by accessing your account through the Upload Manager. You
may as part of your trial request end-users provide registration data. Protexis will forward
that registration information to you through the CNET Upload Manager. Protexis' trial and
registration services do not provide copy protection for your product.
E=commerce.
Protexis will process online credit card transactions on your behalf for products that are enabled
with payment processing services. When you sell or license products using these
services Protexis will be your agent and the merchant of record for such sales or licenses,
but you understand and hereby acknowledge that all sales and licenses are between you
and the end-user. Protexis is merely providing services to complete the transaction.
Your Proceeds. Within thirty (30) days after the end of each calendar month in which a sale or license
of your product occurs, Protexis will pay you the amount owed to you from the amounts
collected from transactions according to the formula set forth below. The term 'Proceeds'
refers to amounts owed to you under this Agreement.
Settled Sales + Taxes Collected Collected ï¿? Merchant Services Fee and Associated Taxes ï¿? Holdbacks
and Refunds ï¿? Activation Fees = Money In Your Pocket (Your Proceeds)
Settled Sales. Protexis will place amounts it receives from the sale or license of your product,
including any taxes that you designate, into a Protexis account.
Taxes Collected. Any and all taxes or governmental fees based on the sale or license of
your products are your responsibility and you hereby represent and warrant that you shall do
all required filings and remittances of such taxes. You must use the CNET Upload Manager to
inform Protexis of the jurisdictions in which taxes are to be paid and the amount of such taxes
that you wish Protexis to collect on your behalf. Neither Protexis nor CNET Networks will have
any liability whatsoever (i) if you fail to direct Protexis to collect taxes for which you are
liable, (ii) for your failure to collect the correct amount of taxes for which you are liable
or (iii) for any other failure, error or liability related to taxes owed by you. Protexis shall
assess and collect such taxes as you direct and remit collected amounts to you on a monthly basis.
Merchant Services Fee. Protexis shall retain the following percentage of the gross
sales revenue generated from each sale or license of your product as the Merchant Services
fee for providing services for that transaction.
- 8% of the gross sales revenue generated from the sale or license of products with a
Premium Listing Package, exclusive of taxes
- 10% of the gross sales revenue generated from the sale or license of products
with a Basic Listing Package, exclusive of taxes.
- 12% of the gross sales revenue generated from the sale or license of products
with a Free Listing Package, exclusive of taxes.
In addition, you are responsible for any taxes or governmental fees due on these Merchant Services fees.
Protexis will therefore deduct from your monthly payment the amount of any such taxes or fees assessed
on the Merchant Services fee.
Hold backs, Chargebacks, and Refunds. Protexis may holdback certain amounts from
your Proceeds. If Protexis processes any refunds to end users who have purchased or
licensed your products using Merchant Services Protexis will deduct the amount of the
refunds plus any applicable fees from your then-current or future Proceeds. If any
credit card processor charges back an amount against any sale or license of your products
(which they may do for any reason allowable under Protexis' credit card processors
merchant regulations, including fraud, consumer complaint, or government order) Protexis
will deduct that amount from your then-current or future Proceeds. Protexis may also
withhold from then-current or future Proceeds any fees associated with these refunds or
chargebacks. Protexis may holdback some or all of your Proceeds if (i) it believes
doing so might be necessary to reasonably cover future refunds, chargebacks, or other
fees and liabilities, or (ii) it believes that the funds represent fraudulent transactions
or involve other illegal activities. You recognize that in some situations the holdbacks
may not be sufficient to cover the refunds, chargebacks, or other fees and liabilities,
in which case you will pay Protexis within 30 days of our notice to you that such amount
is due, the full amounts owed due to refunds, chargebacks, or other fees and liabilities
for service.
Activation Fees. Three activations, which must occur within the first twelve
months of your product's purchase, are included in your initial Merchant Services
fee. Protexis will charge you an additional fee of $0.50 per activation for more
than three activations in the first twelve months or for any activation after the
first twelve months, whichever comes first. These additional activation fees will
be deducted from your Proceeds.
Copy Protection and Licensing.
Protexis has developed and will try to maintain copy protection systems that are
intended to help prevent unauthorized use of your products. Protexis does not
guarantee that your products when protected by Protexis Services software (the
'Protexis Software') will be protected from unlicensed installation or use by
and end user and you hereby acknowledge that all security and copy protection
systems are inherently fallible.
Cancellation.
To cancel Merchant Services, you must delete any products that you have distributed
with the Protexis Software. Even if you notify Protexis or CNET Networks of your
intention to cancel Merchant Services, Protexis will continue to provide Merchant
Services to any products that are enabled with the Protexis Software.
Protexis may cancel this Protexis Services Agreement and your Protexis Services
at any time for any reason or no reason by providing you with notice sent to the
email account on record with Protexis. Some reasons for cancellation include,
but are not limited to (i) your breach of this Protexis Services Agreement, and
(ii) Protexis' reasonable determination that sales or license that use the
Protexis Services are subject to excessive chargebacks.
Upon termination of this Protexis Services Agreement or the Protexis Services by
Protexis for any reason, (i) with the exception of the provisions that survive
as specified below, you and Protexis will be released from obligations set forth
under this Agreement and (ii) you will promptly pay Protexis any amounts owed to
it under this Protexis Services Agreement. The following provisions will survive
termination of this Agreement: Ownership, Injunction, Indemnification, Disclaimer
of Warranties, Limitation and Liability and General Terms as well as this paragraph
and any Protexis rights to holdback Proceeds and receive amounts owed to it under
this Protexis Services Agreement.
Your products are your responsibility.
You guarantee prompt delivery to the end user of the purchased product which
will conform to the specifications represented to the end, and the unlock
procedures and codes (if applicable), after Protexis notifies you that
it has authorized and captured that end-user's credit card transaction.
You will be solely responsible for all claims and losses associated with
or resulting from your products, including without limitation any warranty,
return or support obligations. You represent and warrant that you have the
right to sell or license your product. You will provide any and all
reasonable assistance that Protexis requests. You will comply with all
applicable laws, regulations, rules, ordinances and orders regarding the
marketing and sale or license of your products. You will provide all
customer service and support for your product.
Serial Numbers.
Protexis will distribute serial numbers that you provide or generate
them for you depending on the options that you choose when configuring
your product. If you select the Copy Protected Try and Buy configuration,
then Protexis must generate the serial number at time of purchase.
If you choose to provide your own serial numbers, then Protexis will deliver
your serial numbers to end users. In all cases, serial numbers will be
presented to the end user after completed purchase via the confirmation
web page and email that Protexis will deliver to the end-user. Protexis
will also send an email to the email address on record when the number of
undistributed serial numbers reaches the limit that you set when you
configured the product.
CNET Networks and Protexis own their technology and services.
The technology and software underlying the CNET Networks' sites and the
Protexis Services, including the Protexis Software, is the property of
CNET Networks, Protexis, their affiliates and their respective partners.
CNET Networks, Protexis and its partners will retain all title, rights,
interests and licenses in the Protexis Services and the Protexis Software
that are not expressly granted to you under this Protexis Services Agreement.
Protexis will provide Protexis Services by incorporating the Protexis
Software into your product. Subject to the terms and conditions in this
document and while your accounts remain in good standing, Protexis hereby
grants to you
- A world-wide non-transferable license to produce, reproduce, distribute and
transmit the Protexis Software in object code form as part of your product in any media
or by any means or methods now or hereafter known; and
- A world-wide, non-exclusive license to use and to grant sublicense to end
users the right to use the Protexis Software in object code form as part of your product.
You agree not to copy, modify, rent, lease, loan, sell, assign, distribute,
reverse engineer, grant a security interest in or otherwise transfer any right to
the Protexis Software, the Protexis Services or the technology or software underlying
the Protexis Services, or the CNET Networks and Protexis sites other than as permitted
in accordance with the terms of this Agreement.
Customer Support.
Protexis will provide you technical support via email between 8:00 am to 5:00 pm Pacific
Time Monday through Friday, unless we otherwise mutually agree in writing.
Indemnification.
You hereby agree to indemnify, defend and hold Protexis and CNET Networks, and all
of their respective officers, directors, owners, agents, information providers,
affiliates, distributors and licensors (individually, a 'Protexis Party' and
collectively, the "Protexis Parties") harmless from and against any and all
liability, losses, costs and expenses (including attorneys' fees and court costs)
incurred by any Protexis Party in connection with any claim arising out of or
related to (1) your breach of this Protexis Services Agreement or any other
Agreement incorporated herein by reference, (ii) your use or alleged use of
the Protexis Software and Protexis Services in a product other than the
product in which Protexis has incorporated the Protexis Software, (iii)
the sale or license of a product by using the Protexis Services, (iv) the
content, quality or performance of any product, information, data or other
materials that you provided to us in connection with the Protexis Services,
(v) any use or alleged use of your account by any person whether or not
authorized by you, (vi) your negligence or willful misconduct and (vii)
your violation of any applicable law, rule or regulation. CNET Networks
and Protexis each reserve the right, at its own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, and in such case, you agree to cooperate
with CNET Networks and Protexis in their defense of such claim.
Disclaimer of Warranties.
NEITHER CNET NETWORKS NOR PROTEXIS WARRANTS THAT THE
PROTEXIS SERVICE OR PROTEXIS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
IN ADDITION, NEITHER CNET NETWORKS NOR PROTEXIS MAKES ANY WARRANTY AS TO THE
RESULTS TO BE OBTAINED FROM USE OF THE PROTEXIS SERVICES OR THE PROTEXIS
SOFTWARE. THE PROTEXIS SERVICES AND THE PROTEXIS SOFTWARE ARE DISTRIBUTED
ON AN "AS IS, AS AVAILABLE" BASIS. NEITHER CNET NETWORKS NOR PROTEXIS MAKES
ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROTEXIS SERVICES OR
PROTEXIS SOFTWARE. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE PROTEXIS SERVICES AND PROTEXIS SOFTWARE.
YOU ACKNOWLEDGE THAT THAT NEITHER CNET NETWORKS NOR PROTEXIS HAS REPRESENTED
THAT THE PROTEXIS SERVICES OR PROTEXIS SOFTWARE WILL PREVENT ALL UNAUTHROIZED
USE OF YOUR PRODUCT.
NEITHER CNET NETWORKS NOR PROTEXIS SHALL BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OR
LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF
EITHER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow exclusion or implied warranties
or limitation of liability for incidental or consequential damages, so the
above limitations or exclusions may not apply to you. In such jurisdiction,
CNET Networks' and Protexis' liability and that of their third party content
providers and their respective agents shall be limited to the greatest
extent permitted by law.
Injunction.
You recognize that money damages are not an adequate remedy for any breach
or threatened breach related to CNET Networks' or Protexis' intellectual
property rights or your use of the Protexis Services and Protexis Software
beyond the scope of the license granted in this Protexis Services Agreement.
You therefore agree that in addition to other remedies available hereunder,
by law or otherwise, CNET Networks and Protexis shall be entitled to an
injunction against any such breach by you.
Jurisdiction.
This Protexis Services Agreement shall be construed in accordance
with the laws of the Province of British Columbia, without reference
to its conflicts of laws principles. The parties irrevocably consent
to bring any action to enforce this Protexis Services Agreement in
the federal or provincial courts located in Vancouver, British
Columbia, Canada.
Software Licenses.
The Protexis Software includes:
-
Software developed by the OpenSSL Project for use in the OpenSSL Toolkit
(http://www.openssl.org/).
Copyright (c) 1998-2000 The OpenSSL Project. All rights reserved.
-
Cryptographic software written by Eric Young
(eay@cryptsoft.com).
Copyright (C) 1995-1998 Eric Young (eay@cryptsoft.com). All rights reserved.
-
The Expat XML Parser. Copyright (c) 1998, 1999,
2000 Thai Open Source Software Center Ltd
- Includes software developed by the Apache Software
Foundation (http://www.apache.org/).
U.S. Government Restricted Rights
The Protexis Services and Protexis Software are deemed to be 'commercial computer
software' pursuant to DFAR Section 227.7202 and FAR 12.1212, as applicable.
Any use, modification, reproduction release, performance, display or
disclosure of the Protexis Services by the U.S. Government will be governed
solely by the terms of this Protexis Services Agreement and will be
prohibited except to the extent expressly permitted herein.
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