Distribution Agreement March 1, 2024

1. Definitions

Authorized Supplier: entity authorized to receive a distribution fee for the Products sold to Device users.

Brand Features: trade names, registered trademarks, service marks, logos, domain names and other distinctive brand features of each party, respectively, as they are owned (or licensed) periodically by that party.

Publisher: any person or company that provides Products for distribution through Fawi following the terms of this Agreement.

Publisher Account: a publishing account assigned to a User in the Fawi Office and linked to the distribution of the respective Products through Fawi.

Device: any device that can access Fawi.

Fawi:

  1. Fawi, A Portuguese company, registered at the Commercial Registry Office, under the taxpayer identification number 516944223, headquartered at AV FERNANDO PESSOA 11 ESCRITORIO 7 LISBOA 1990 108.
  2. the software and services that allow Developers to distribute Products to Device users, including also a professional module (Fawi Office) that allows creation, management, and publication of those Products. Any reference to Fawi in this Agreement must be interpreted to also include the Fawi Office, every time such interpretation is possible.

Intellectual Property Rights: all patent rights, copyrights, trademark rights, trade secrets rights, database rights, moral rights and any other intellectual property rights (registered or unregistered) worldwide.

Payment Account: a financial account assigned by a Payment Processor to a Publisher that authorizes the Payment Processor to collect and send payments on behalf of the Publisher for Products distributed through Fawi.

Payment Processor (s): the entity authorized by Fawi to provide services to Publishers, allowing Publishers with Payment Accounts to get paid for Products distributed through Fawi.

Products: software, content, digital materials and other items and services made available by Publishers through Fawi.

Tax: any taxes on the sale, use, value-added; federal, state or local goods and services, as well as other similar transaction taxes. This term excludes taxes on telecommunications and similar types of taxes, real estate taxes and taxes based on the Publisher's income, including withholding taxes, income, franchise, activity, and occupation, as well as other similar types of taxes.

2. Acceptance of this Contract

2.1 This contract ("Contract") constitutes a legally binding agreement between the Publisher and Fawi regarding the use of the Fawi Office to distribute Products on the Fawi platform. The Publisher establishes a contract with Fawi. The Publisher acknowledges that Fawi, acting under the relationship identified in Section 3.1, presents and makes available, on behalf of the Publisher, the Products for viewing, transfer, and purchase by users. To use Fawi to distribute the Products, the Publisher accepts this Contract and provides complete and accurate information on Fawi.

2.2 Fawi does not authorize the distribution of Publisher Products through the Fawi platform and the Publisher cannot accept this Contract if they are not a validated and reputable Publisher.

2.3 If the Publisher agrees to be bound by this Contract on behalf of their employer or another entity, they declare and warrant that they have the full legal authority to bind their employer or the entity in question to this Contract. If you do not have the necessary authority, you cannot accept the Contract, or use the Fawi platform on behalf of your employer or another entity.

3. Publisher's use of Fawi

3.1 The Publisher is responsible for uploading the Products to Fawi through the Fawi Office, providing the necessary Product information and technical support to users and accurately disclosing the necessary authorizations so that the Product can work on users' Devices.

3.2 The Publisher is responsible for maintaining the confidentiality of any Publisher credentials that Fawi may issue to them or that the Publisher chooses, and is the sole responsible for all Products that are designed with their Publisher credentials. Fawi may limit the number of Publisher Accounts issued to you or to the company or entity for which you work.

3.3 Except for the license rights granted by the Publisher on this Contract, Fawi agrees that it has no Publisher's (or its licensors) right, title or interest, under this Contract or concerning any Products, including any rights to Intellectual Property for these Products.

3.4 The Publisher cannot use Fawi to distribute or make available any Product intended to facilitate the distribution of software apps and games for use on devices outside Fawi.

3.5 The Publisher agrees to use Fawi only for the purposes allowed by this Contract and any valid regulations or legislation, or any guidelines or practices generally accepted by the competent jurisdictions (including any legislation regarding data or software export to and from the United States or other relevant countries).

3.6 Users are instructed to contact the Publisher if they discover any defects or performance problems with the Products. Concerning the Publisher's relationship with Fawi, the Publisher will be solely responsible and Fawi will have no responsibility to assume or deal with the technical support and maintenance of its Products or any complaints about them. The Publisher agrees to provide and maintain valid and accurate contact information, which is presented on each Product details page, available to users for customer support and legal purposes. For paid Products or in-app transactions, the Publisher agrees to respond to customer support requests within 3 business days and, within 24 hours, any technical support or questions related to the Product considered urgent by Fawi. Failure to provide adequate information or technical support for your Products may result in less visible Product exposure or removal of the Fawi Product, which in turn may result in low Product ratings, lower volume of sales and billing disputes by users.

3.7 The Publisher agrees that if they make the Products available through Fawi, they will protect users' privacy and legal rights. If users provide you, or if the Product accesses or operates, usernames, passwords or other login or personal information, the Publisher agrees to warn users that information will be available for the Product and to provide the Privacy Notice and legally adequate protection for those users. Also, the Product may only use that information for the limited purposes for which the user has granted authorization. If the Product stores personal or confidential information provided by users, the Publisher agrees to do so securely, and only as long as necessary. However, if you choose a separate contract that allows the Publisher or the Product to store or use personal or confidential information directly related to the Product (not including other products or applications), the terms of that separate contract will govern the use of that information by the Publisher. If the user provides information to the Publisher, the Product can only use that information when and for the limited purposes for which the user has given authorization.

3.8 The Publisher agrees not to participate in any Fawi activity, including making the Products available through Fawi, that interferes, disrupts, damages or has unauthorized access to the devices, servers, networks or other properties or third-party services, including, but not limited to, Fawi or any Authorized Supplier. The Publisher cannot use user information obtained from Fawi to sell or distribute Products outside Fawi.4.9 The Publisher is solely responsible, and Fawi has no liability to you for your Products, including the use of any Fawi APIs, and for the consequences of your actions, including any loss or damage that Fawi may suffer.

3.9 Fawi allows users to rate and evaluate Products. Only users who download the applicable Product can rate and evaluate it on Fawi. Product ratings can be used to determine their placement on Fawi. Fawi may also assign a compound score to any Product Publisher that has not received user ratings. The compound score is a representation of the quality of the Publisher's Product based on its history and is determined by Fawi in its sole discretion. For new Publishers with no Product history, Fawi may use or publish performance metrics such as access and/or refund rates to identify or remove Products that do not meet acceptable standards, as determined by Fawi. Fawi reserves the right to present Products to users in a way that will be determined at its sole discretion. Products may be subject to user ratings that the Publisher may not agree with. If you have any questions or concerns regarding these ratings, you can contact Fawi.

4. Business relationships, Prices, payments and taxes

4.1 The Developer appoints Fawi as its Agent or marketplace service provider, as described here, for the marketing of its respective products.

4.2 This Agreement covers the Products that users can access for free and the Products for which users have to pay an access fee. To receive fees for its Products and be paid for Products distributed through Fawi, the Developer must have a valid Payment Account under a separate contract entered into and approved by a Payment Processor for a Payment Account and maintain that account in compliance. At the time of the transaction for Developer Payment, a fee may be charged by the Payment Processor to be borne by the Developer. In case of a conflict between the Payment Processor's contract and this Agreement, the terms of this Agreement prevail.

4.3 Payments to the Developer will be made in the currencies authorised by the Processor, and transfers to the Developer's bank account will be made according to the Processor's rules.

4.4 Products may be presented to users either free of charge or with access fees set by Fawi or allowed by the Developer, according to their respective criteria. The Developer authorises Fawi to include fees in the price charged to users. Fawi may set the price of the Products in the currencies allowed by the Payment Processor. Fawi may display the price of products to users in their native currency, but Fawi is not responsible to the Developer for the accuracy of exchange rates or currency conversion.

4.5 Acting as its agent, with the Developer as the principal, Fawi is the registered intermediary for Products sold or made available to users in the International Economic Spaces.

4.6 All products distributed through Fawi, and whose accesses are charged through "In-Store-Purchase," are subject to being included in Fawi's Collective Subscription Packages.

4.7 The amounts charged by Fawi's Collective Subscription Packages, deducted from Fawi service commissions, divided by the total number of app accesses per user during each monthly subscription period, will determine the value per access and/or the total payment that the Developer will receive. A "Transaction Fee" is charged, as described here and may be periodically reviewed by Fawi, on the sale price, which is shared by the Payment Processor and, if applicable, the Authorised Supplier.

4.8 In certain countries/territories, as described here, Fawi determines if a Product is taxable, and if so, the applicable tax rate is charged by Fawi, the Payment Processor, or the Authorised Supplier and delivered to the relevant tax authority for Products sold to users. Fawi may update the countries/territories where it determines and delivers Taxes with proper notice to the Developer. In all other countries/territories, the Developer is responsible for determining if the amount received by him is taxable, the applicable tax rate to be charged, and for delivering the Taxes to the relevant tax authority, which are deducted from the amount received by the Developer (Fawi package sale price minus the Transaction Fee and Taxes if applicable). In cases where Fawi covers and delivers Taxes in applicable countries/territories, the Developer and Fawi acknowledge a provision from the Developer to Fawi for tax purposes and the Developer's tax obligations arising from such additional provision.

4.9 In cases where the Payment Processor or an Authorised Supplier notifies Fawi that it has been required by applicable (local) law or relevant government or tax authorities to withhold taxes, or if Fawi is required, under applicable (local) law or relevant tax or government authorities, to withhold any Taxes (in this case, "Withholding Tax"), Fawi will also deduct an amount equal to the Withholding Tax from the amounts delivered by Fawi to the Developer. Withholding Tax includes, among other things, withholding obligations on cross-border payments or as established by taxes on telecommunications.

4.10 The Developer can also make the Products available for free. If the product is free, no Transaction Fee will be charged. Under these conditions, the Developer allows Fawi to display advertising during the startup of the Products, optionally disabling this feature by paying a fee. To avoid unexpected fees for users, the Developer agrees that Products initially provided for free to users will remain so. Any additional charges are related to an upgraded, alternative, or supplementary version of the Product.

4.11 The Developer authorises Fawi to issue refunds to users, and the Developer agrees that Fawi may deduct the amount of these refunds from payments made to the Developer. In all other cases, the standard Payment Processor Terms of Use apply to refunds. Refunds to users may not include taxes previously charged on Product purchases.

4.12 Users are allowed to access an unlimited number of times each Product distributed through Fawi without any additional fees. However, if the Developer removes a Product from Fawi due to legal removal (as defined in section 8.2), that Product will be removed from all parts of Fawi, and users will no longer have the right or ability to access the respective Product.

5. Permits

5.1 In compliance with Fawi nomination (presented here), the Publisher grants Fawi a non-exclusive, worldwide and royalty-free authorization to reproduce, execute, present, analyze and use the Publisher Products linked to:
(a) the Fawi operation and marketing; (b) the sale of devices and services that support the Products' use;
(c) the provision of hosting services for the Publisher and on their behalf allowing storage and user access to the Products, and to enable third parties to host the respective Products;
(d) improving Fawi; and (e) compliance with this Contract.

5.2 The Publisher grants Fawi permission to perform the actions described in this section.

5.3 The Publisher grants the user a non-exclusive, worldwide and lifetime license to run, display and use the Product. The Publisher may include but is not limited to, a family group and family members. At their discretion, the Publisher may include a separate End User License Agreement (EULA) in the Product to establish the user's rights concerning the Product but, if EULA conflicts with this Contract, the Contract prevails over EULA. The Publisher acknowledges that the EULA for each of the products is established only between the Publisher and the User. Fawi will not be held responsible or liable under any EULA.

5.4 If the Publisher does not provide the link to its Privacy Policy, it authorizes Fawi to provide a “Master Privacy Policy” and guarantees to respect it in its ensemble, and concerning the protection of the End User data.

6. Brand characteristics and advertising

6.1 Each party will be the holder of all rights, property, and participation, limitlessly including all Intellectual Property Rights, related to the respective Brand Features. Apart from the extent expressly displayed in this Contract, neither party will grant, nor will the other party acquire, any right, property or interest (including, but not limited to, any implied license) concerning any Brand Features of the other party.

6.2 Under the terms and conditions of this Agreement, the Publisher grants Fawi and its affiliates a limited, non-exclusive, royalty-free license during the duration of this Contract to display the Publisher’s Brand Features, sent by the Publisher to Fawi, for use exclusively online or on mobile devices and, in both cases, only in connection with the distribution and sale of the Publisher's Products through Fawi, or to otherwise fulfill your obligations under this Contract.

6.3 In addition to the license granted in section 6.2 above, to market the presence, distribution, and sale of the Publisher's Product on Fawi and its availability for use on devices and through other Fawi services, Fawi and its affiliates may include visual elements of the Product (including game characters and videos) and Publisher Brand Features (a) on Fawi and any Fawi mobile or online property; (b) in online advertising formats, on mobile devices, on television, outside (for example, on a billboard) and printed outside Fawi; (c) when making announcements about the availability of the Product; (d) in presentations; and (e) on customer lists that appear online or on mobile devices (including, but not limited to, customer lists published on Fawi Websites).

6.4 If the Publisher cancels the distribution of certain Products through Fawi, Fawi ceases to use the Brand Features of the canceled Products under the terms of this section 6, except when needed to allow Fawi to re-install users.

7. Promotions

7.1 Fawi may carry out promotions by offering coupons, credits and/or other promotional incentives for paid transactions and/or user actions related to their Products and in-app transactions solely linked to Fawi and voucher promotions, and also on Fawi's authorized third-party channels, if (a) the amounts payable to the Publisher don't change; (b) there is clear communication with users that the Promotion belongs to Fawi and not the Publisher; (c) the prices established by the Publisher are communicated to users; (d) any redemption of the Promotion is carried out by Fawi or, for Gift Card Promotions, through an authorized Fawi partner; and (e) Fawi is responsible for complying with the law applicable to the Promotion.

7.2 In addition to the rights granted in section 6, the Publisher grants Fawi the right to use its Brand Features (as provided by the Publisher) for marketing Promotions associated with Fawi and, for Gift Card Promotions, in Fawi authorized third-party channels, provided that Fawi only uses the Brand Features belonging to the Publisher on authorized third-party channels.

8. Product Removal

8.1 The Publisher may discharge future distribution of their Products through Fawi at any time but must do so per this Contract and the Payment Processor's Payment Account Terms and Conditions for any Products distributed through the Fawi before removal, including but not limited to refund requirements. Removing future distribution of your Products through Fawi does not (a) affect the rights of users who have already purchased or transferred your Products, (b) remove your Device Products or any part of Fawi where previously accessed applications are registered on the devices on behalf of users nor (c) changes its obligation to provide or offer technical support for Products or services previously purchased or transferred by users.

8.2 Despite section 8.1, in no case, will Fawi keep on any part of Fawi (including, but not limited to, the part of Fawi where previously accessed applications are registered on behalf of users) any Product removed from Fawi, whose removal, reported to Fawi through Fawi's services and, or written notice, was due to (a) an alleged infringement, or a proven infringement, of any third party Intellectual Property Rights; (b) an allegation of a violation, or a proven violation, of third party rights; or (c) a claim or determination that such Product is not in compliance with applicable law (collectively, "Legal Removals"). If a Product is removed from Fawi due to a Legal Removal and an end-user purchased that Product within one year (or longer period, as established by the local Consumer Law) before the date of removal, the Publisher, upon Fawi's request, you agree that you must reimburse the end-user for all amounts paid by him in respect of the Product.

8.3 Fawi assumes no obligation to monitor the Products or their content. If Fawi becomes aware and determines, in its sole discretion, that a Product or any part thereof (a) violates any applicable law; (b) violates this Agreement, applicable policies or other Terms of Use, which may be updated by Fawi from time to time, in its sole discretion; (c) violates the terms of the distribution contract with device manufacturers and Authorized Suppliers; or (d) creates liability or harms Fawi or Authorized Suppliers, Fawi may reject, remove, suspend or reclassify the Product on the Fawi Store or Devices. Fawi reserves the right, in its sole discretion, to suspend and / or block any Product and / or Publisher from the Fawi Store or Devices. If the Product contains elements that could cause serious damage to users' devices or data, Fawi may, in its sole discretion, disable the Product or remove it from the devices on which it is installed. If the Product is rejected, removed or suspended from the Fawi Store or Devices per section 8.3, Fawi may withhold payments due to the Publisher.

8.4 Fawi enters into distribution agreements with device manufacturers and Authorized Suppliers for the integration of the Fawi software client application (s) into Devices. These distribution contracts may require the involuntary removal of Products that violate the Device Manufacturer's or Authorized Supplier's Terms of Use.

9. Privacy and information

9.1 Any data collected or used under this Contract is following Fawi's Privacy Policy.

9.2 To continue to innovate and improve Fawi, related products, and services, as well as the user and Publisher experience with Fawi products and services, Fawi may collect certain usage statistics for Fawi and Devices, including, among others, information about how the Product, Fawi and Devices are being used.

9.3 The data collected is used combined to improve the Fawi Store, related products and services, and the user and Publisher's experience with Fawi products and services.

10. Language

10.1 Given Fawi's ability to provide a translated version of the Terms, you agree that the translation is provided for your convenience only and that the English versions of the Terms will dictate your relationship with Fawi.

11. Termination of this Contract

11.1 This Agreement will remain in effect until terminated, and subject to terms that remain in effect, by the Publisher or Fawi, as set out below.

11.2 If the Publisher wishes to terminate this Contract, he must unpublish all of their Products and cease using Fawi and any relevant Publisher credentials.

11.3 Fawi may terminate this Contract with the Publisher for any reason with 30 (thirty) days prior written notice. Besides, Fawi may, at any time, immediately suspend or terminate this Contract with the Publisher if (a) the Publisher has breached any provision of this Contract, any confidentiality agreement or other agreement related to Fawi; (b) Fawi is required to do so by law; (c) cease to be an authorized Publisher or a suitable Publisher, or (d) Fawi decides to stop supplying Fawi.

11.4 Upon termination of this Contract, Fawi will not distribute the Product but may retain and use copies of the Product for Fawi's technical support.

12. Representations and Warranties

12.1 The Publisher declares and warrants that they own all Intellectual Property Rights in the Product(s).

12.2 If the Publisher uses third-party materials, it represents and warrants that it has the right to distribute that material on the Product. The Publisher agrees not to send to content to Fawi that is subject to the Intellectual Property Rights of third parties unless they are the owner of such rights or have authorization from its rightful owner to submit the material.

12.3 The Publisher declares and warrants that, as the main part of the transaction with the user, is solely responsible for maintaining compliance, worldwide, with all applicable laws, as well as other obligations.

13. DISCLAIMER OF LIABILITY FOR WARRANTIES

13.1 THE PUBLISHER EXPRESSLY UNDERSTANDS AND AGREES THAT YOUR USE OF FAWI IS AT YOUR OWN RISK AND THAT FAWI AND ASSOCIATED SERVICES ARE PROVIDED "AS IT IS" AND "AS AVAILABLE" WITHOUT ANY KIND OF WARRANTY.

13.2 THE USE OF FAWI AND ANY TRANSFERRED MATERIAL OR OBTAINED OTHERWISE THROUGH THE USE OF FAWI, IS AT YOUR SOLE DISCRETION AND THE PUBLISHER IS THE ONLY RESPONSIBLE FOR ANY DAMAGE CAUSED TO THEIR DATA SYSTEM, OR DAMAGE TO ANY OTHER DEVICE OR BY THE LOSS OF DATA RESULTING FROM THE ASSIGNED USE.

13.3 FAWI EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND TRADE CONDITIONS, FITTING FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

14. LIMITATION OF LIABILITY

14.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PUBLISHER EXPRESSLY UNDERSTANDS AND AGREES THAT FAWI, ITS SUBSIDIARIES, AND AFFILIATES, AS WELL AS THEIR LICENSORS, WILL NOT BE RESPONSIBLE BEFORE THE PUBLISHER, TO ANY LIABILITY THEORY FOR ANY INDIRECT, OCCASIONAL, SPECIAL, INFERRED OR EXEMPLARY DAMAGE WHICH THE PUBLISHER MAY INCUR, INCLUDING ANY LOSS OF DATA, REGARDLESS ANY GIVEN OR NOT GIVEN WARNING TO FAWI OR ITS REPRESENTATIVES, OR ASSUMING THAT THEY SHOULD THEY HAVE THE KNOWLEDGE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH LOSSES.

15. Repair

15.1 To the maximum extent permitted by law, the Publisher agrees to defend, indemnify and exempt Fawi, its affiliates and their directors, officers, employees, agents and Authorized Suppliers from and against all complaints, actions, processes or procedures from third parties, as well as for all losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) resulting from or related to (a) Publisher's use of Fawi in breach of this Agreement; (b) the infringement or violation by the Product (s) of any Intellectual Property Right or any other right of any person; or (c) the breach of any law by the Publisher or the Product (s).

15.2 To the maximum extent permitted by law, the Publisher agrees to defend, indemnify and exempt the applicable Payment Processors (which may include Fawi and/or third parties) and the Payment Processors' affiliates, directors, officers, employees and agents from and against all third party complaints, actions, processes or procedures, as well as for all losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) resulting from or related to the distribution of Products by the Publisher via Fawi.

16. Changes to the Contract

16.1 Fawi may make changes to this Contract at any time upon notice from the Publisher and refusal to use Fawi. The Publisher must consult the Contract and regularly check for changes.

16.2 Changes are not retroactive. They take effect and are accepted by the Publisher, (a) immediately for those who became Publishers after the publication of the notification or (b) for those who were already Publishers on the date specified in the notification which will be no less than 30 days after the published changes (except for changes required by law, which take effect immediately).

16.3 If the Publisher does not agree with the modifications made to the Contract, they may stop using Fawi, as it is their only and exclusive solution. The Publisher agrees that the continued use of Fawi constitutes agreement with the modified terms of this Contract.

Contacte-nos

For any questions or clarifications please contact Fawi via email:

support@myfawi.com