The person or entity identified on the signature page of this Agreement (“You” or “Your”) agrees with PTC that the terms and conditions of this Publisher Agreement will govern Your use of the ThingWorx Marketplace including the listing of Your partner profile, and Your published software and other content on the ThingWorx Marketplace, including but not limited to Your applications, extensions, products, or references thereto.
“Company” means a company or a person.
“Marketplace Listing” means Your catalog entry on the ThingWorx Marketplace that includes, references or links to Your Solution and/or Your Material. For example, a Marketplace Listing could be Your company profile, marketing collateral describing or linking to Your ThingWorx-related services and products, or a downloadable application designed to work with the ThingWorx platform.
“Your Solution” means any (i) downloadable software including but not limited to applications, extensions, plug-ins, custom agents, or integrations that are designed to interoperate with the ThingWorx® Platform or other PTC IoT products; (ii) ThingWorx system integration services; or (iii) or products that are certified as ThingWorx Ready, or which have been built using the ThingWorx platform.
“ThingWorx Ready” means Your product that has been certified pursuant to the requirements of the ThingWorx Ready Certified Partner Program. A ThingWorx Ready product is certified by ThingWorx to work with the ThingWorx platform.
“PTC Customer Data” means electronic data or information submitted by PTC’s customers into PTC’s systems. PTC systems may include but are not limited to, the ThingWorx Marketplace and the ThingWorx platform.
“PTC,” “We,” “Us” or “Our” means PTC Inc.
“Your Customer Data” means information stored in our systems about Your customers’ configuration and usage of Your Solutions.
“Your Material” means the content, except for Your Solution, that You upload to the ThingWorx Marketplace, or link to from the ThingWorx Marketplace, which may include: (i) Your company profile/information; (ii) Your logos; (iii) marketing collateral, code snippets, documentation, hints, tips, or other instructions related to ThingWorx products and/or service; (iv) description of ThingWorx system integration services that You provide; (v) links to other relevant websites; and, any other relevant written, audio, or video content.
LISTING YOUR SOLUTIONS AND YOUR MATERIAL ON THE THINGWORX MARKETPLACE
Subject to the terms of this Agreement, We permit You to list Your Solutions and Your Material on the ThingWorx Marketplace. You may offer Your Solutions via the ThingWorx Marketplace only to the extent permitted by, and in accordance with, the applicable Partner Program Agreement (defined below) to which You are a party. We reserve the right, in Our sole discretion for any reason at any time, to revoke this permission and refuse to allow You to list Your Solution and/or Your Material on the ThingWorx Marketplace. We also reserve the right, in Our sole discretion for any reason at any time, to remove Your Solution and/or Your Material and/or related Marketplace Listing(s) from the ThingWorx Marketplace.
PAYMENTS, TAXES, AND REFUND POLICY
If and when you choose to list Your Solution on the ThingWorx Marketplace but not provide Your Solution via the ThingWorx Marketplace, you agree to pay the annual listing fees specified at http://marketplace.thingworx.com/.
You may provide Your Solution via the ThingWorx Marketplace either free of charge or for a fee. If You are providing it on the ThingWorx Marketplace free of charge, you agree that you will not charge for Your Solution outside of the ThingWorx Marketplace.
If You are providing Your Solution for a fee, You agree that PTC or such third party as PTC engages to collect fees from the ThingWorx Marketplace will collect from the purchasers of Your Solution and remit to you the portion of the fees as are payable to You, after deducting the amounts specified at http://marketplace.thingworx.com/. In the event PTC or such third party is not able to collect the fees for Your Solution, You agree that your portion of the fees will not be payable to You unless and until the fees are in fact collected from the customer.
You are responsible for setting the price for Your Solution. In the event PTC or the third party administrator collecting fees for PTC pays the customer a refund, You agree promptly to refund to PTC or such third party the amount of fees paid to You for such Solution, and You hereby authorize PTC and such third party to deduct the amount of such refund from fees otherwise owed to You.
You agree that You will be responsible for, and shall in fact pay, any and all taxes owed by You on amounts you receive from sales of Your Solution through the ThingWorx Marketplace.
YOUR LICENSE TO PTC
You grant PTC a nonexclusive, worldwide, fully paid-up, royalty free license, for so long as Your Solutions and/or Your Materials are listed on the ThingWorx Marketplace, to (i) use, copy, perform, display, reproduce, adapt, modify, distribute and to prepare derivative works of, or incorporate into other works, Your Material; (ii) market Your Solutions through the ThingWorx Marketplace, and (iii) permit others to access, install, download and/or use Your Solutions and/or Your Materials. You agree to include the PTC Solution End User License Agreement with your Solutions unless otherwise agreed to by PTC in writing.
TRADEMARK CROSS LICENSE
PTC hereby grants to You a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use PTC trademarks and associated logos solely to enable You to exercise your rights and perform your obligations under this Agreement. You hereby grant to PTC a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use Your name, Your Solution name(s) and associated logos solely to enable PTC to exercise its rights and perform its obligations under this Agreement. Use of marks will be in accordance with the granting party’s trademark usage policies. At the request of the granting party, and in the granting party’s sole discretion, the other party will cease, or adjust the manner of, its use of the granting party’s marks, except that if You request that PTC cease using Your marks, this Agreement will immediately terminate, Your Marketplace Listing will be removed, and You will no longer be able to list Your Solution and/or Your Material on the ThingWorx Marketplace.
You acknowledge that PTC has no responsibility or liability of any kind, and that You are solely responsible, for Your Materials and Your Solutions, including but not limited to the development, operation, maintenance and content of Your Solutions. You are solely responsible for:
· Providing PTC with the required content and materials for uploading Your Solution and/or Your Material to the ThingWorx Marketplace;
· Requesting removal of Your Solutions and/or Your Material from the ThingWorx Marketplace,
· Creating information and content on, through or within Your Marketplace Listing;
· Documentation for the technical installation ,operation, and use of Your Solution, including supporting end users of Your Solution;
· The accuracy and appropriateness of Your Marketplace Listing(s);
· How Your Solution and/or Your Material is used by others;
· Maintaining a current and working version of Your Solution on the ThingWorx Marketplace, and ensuring that Your Material is current;
· Ensuring that Your Solution, Your Material, and any other content contained within Your Marketplace Listing(s) does not infringe or violate the rights (including intellectual property rights) of any other party; and
· Ensuring that Your Solution, Your Material, and any other component of Your Marketplace Listing(s) are not offensive, harassing, defamatory, abusive, lewd, pornographic, obscene or otherwise objectionable or unlawful.
· Obtaining from Your customers all required consents to upload or otherwise transmit Your Customer Data.
YOUR REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant and covenant that:
· You have all necessary rights and licenses to Your Solution and Your Material to grant the licenses set forth in this Agreement;
· The use of Your Solution, Your Material, and Your Marketplace Listing(s) by Us or any other users does not and will not violate or infringe the rights of any person or entity including the intellectual property, proprietary, or contract rights of any person of entity;
· Your Solution, Your Material and Your Marketplace Listing(s) will not contain or install any virus, worm, bug, Trojan horse, malware or other malicious code, files or programs;
· You will comply with all applicable laws and regulations, including all applicable export control laws, and maintain all licenses, permits and necessary permissions to list or provide Your Solutions on the ThingWorx Marketplace;
· Your Solutions, Your Material, and Your Marketplace Listing(s) will not be offensive, harassing, defamatory, abusive, lewd, pornographic, fraudulent, obscene or otherwise objectionable or unlawful;
· Your Marketplace Listing(s) and Your Material does not and will not contain false or deceptive language, unsubstantiated or comparative claims regarding PTC’s or others products, unapproved advertising, or spam;
· Your Solution, Your Material, and Your Marketplace Listing(s), does not and will not breach any duty of confidentiality that You owe to any person or entity; and
· You will not take any actions that interfere, or are designed to interfere, with the proper and intended operation of the ThingWorx Marketplace.
REVIEW OF YOUR SOLUTION; SECURITY
This Agreement, for so long as it remains in effect, will govern the listing of all of Your Solutions on the ThingWorx Marketplace. We reserve the right to conduct any type of review, audit, or test of Your Solutions. We may adopt and change our review standards and processes in our sole discretion. Notwithstanding anything to the contrary in this Agreement or the applicable Partner Program Agreement to which You are a party, while Your Solution is listed on the ThingWorx Marketplace, You are responsible for evaluating and testing Your Solution as to its technology, functionality, performance, security, and user interface. We may conduct a security review of Your Solution, which may include security testing. We may conduct this testing ourselves or through a third party. We will provide reasonable notice to You before starting such testing. We will also cooperate reasonably with You to minimize the effects of such testing on Your business and operations. You agree to cooperate reasonably in any such testing. You agree that We and Our agents or contractors are not responsible for downtime or other adverse effects on Your Solution or systems caused by such testing. We reserve the right to periodically require re-submission of Your Solution for subsequent reviews, including security reviews, and re-certification.
You agree that you have followed industry security best practices in creating the Solution. You agree to adhere to any security guidelines provided to you by PTC from time to time and agree that your Solution will follow such guidelines and that any discovered vulnerabilities will be promptly remediated. Prior to listing your Solution on the ThingWorx Marketplace, We will conduct a review of Your Solution, including the Solution source code. Without limiting any other rights in this Agreement, We reserve the right to not allow your Solution to be listed on the ThingWorx Marketplace for any reason including due to a review of the Solution source code.
You will use commercially reasonable efforts to provide support to users of Your Solution. You agree that You are responsible for: (i) providing all support for Your Solution, (ii) providing users of Your Solution all documentation and other information necessary for their use of Your Solution, and (iii) responding to all inquiries related to Your Solution, Your Material, and Your Marketplace Listing(s). You will provide to Us, and monitor and maintain, a current email address that We will provide to users of the ThingWorx Marketplace, and to which We may direct inquiries about Your Solution, Your Material, and Your Marketplace Listing(s).
INTELLECTUAL PROPERTY OWNERSHIP
Technology. Subject to the limited licenses set forth in this Agreement and the applicable Partner Program Agreement between You and PTC, nothing in this Agreement transfers or assigns to Us any of Your intellectual property rights in Your Solution, Your Material, or Your other technology, and nothing in this Agreement transfers or assigns to You and of Our intellectual property rights in the ThingWorx Marketplace, the ThingWorx platform, or Our other technology.
Trademarks. Our Marks displayed within the ThingWorx Marketplace and Our other websites are the property of PTC. You are not permitted to use these Marks without the prior written consent of PTC, except as expressly permitted in this Agreement or the applicable Partner Program Agreement.
Competitive Solutions. Subject to rights and obligations of the parties set forth in this Agreement, You acknowledge that We and/or other parties may develop and publish applications, products, extensions, or other technology that are similar to or otherwise compete with Your Solution.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the Effective Date and continues for one (1) year. Thereafter, this Agreement shall automatically renew for successive one-year renewal terms unless (a) the Agreement is terminated as provided below; or (b) until none of Your Solutions and/or none of Your Material is listed on the ThingWorx Marketplace any longer.
Termination for Convenience. Either You or PTC may terminate this Agreement for any reason on sixty (60) days’ written notice.
Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if (a) the other party violates a material term of this Agreement; or (b) the other party is acquired by or becomes the terminating party’s competitor. PTC may terminate this Agreement upon written notice to You if You fail to respond to a claim of alleged infringement within a reasonable time.
PTC Customer Data. To the extent that Your Solutions may process or transmit PTC Customer Data, You acknowledge and agree that PTC is not responsible for the privacy, security or integrity of any PTC Customer Data. As between You and PTC, You agree to maintain appropriate administrative, physical, and technical safeguards for the protection of and the security, confidentiality and integrity of PTC Customer Data sent to, sent from, and/or processed by Your Solution. You represent and warrant that, prior to Your users using Your Solution, You will notify each user, and obtain each of Your user’s acknowledgement, that (i) Your Solution may transmit PTC Customer Data; and (ii) PTC is not responsible for the privacy, security or integrity of the PTC Customer Data that is transmitted by Your Solution. You further represent and warrant that to the extent Your Solution stores, processes or transmits PTC Customer Data, neither You nor Your Solution will, without appropriate prior user consent or except to the extent required by applicable law, (x) modify the content of PTC Customer Data in a manner that adversely affects the integrity of PTC Customer Data, (y) disclose PTC Customer Data to any third party, or (z) use (directly or for the benefit of a third party) PTC Customer Data for any purpose other than providing Your Solution functionality to users of Your Solution. A modification or disclosure of PTC Customer Data does not violate this section to the extent it results from an activity of the applicable customer using Your Solution and a reasonable customer would expect that modification or disclosure of its data to occur as a result of that activity.
Your Customer Data. To the extent You receive access to Your Customer Data in or from PTC’s systems, You represent and warrant that You have notified all of Your affected users, or will notify them prior to their use of Your Solution, that You may receive such data from PTC through the use of Your Solution, and to that extent PTC is not responsible for the privacy, security or integrity of Your Customer Data. As between You and Your users, You agree to maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Customer Data sent to, sent from, and/or processed by Your Solution. You further represent and warrant that to the extent You or Your Solutions store, process, collect or transmit Your Customer Data, neither You nor Your Solution will, without appropriate prior user consent or except to the extent required by applicable law, (i) modify the content of Your Customer Data in a manner that makes it inaccurate or misleading, (ii) disclose Your Customer Data to any third party other than Your applicable customer, or (iii) use (directly or for the benefit of a third party) Your Customer Data except as is permitted pursuant to Your relationship with Your applicable customer.
Personal Information. To the extent that You receive or have access to (either orally, in hard copy, electronic format, or otherwise) any personal information, as defined below (hereafter “PI”), You shall (i) process PI solely and exclusively for the purposes for which the PI is provided to You; (ii) not process PI for Your own purposes or for the benefit of any third party; and (iii) You shall not disclose or use any PI for any purpose except to the extent necessary to carry out the purposes for which such PI is disclosed and only as permitted by law in the ordinary course of business to carry out those purposes. You shall limit disclosure of the PI to only those employees who have a genuine, legitimate business need in connection with such permitted purposes and You shall advise Your employees and agents of these obligations (requiring agents to protect and restrict the use of PI in conformance with these standards). If You are a US based company or You are transmitting PI of citizens of the European Union (EU) to the US, You will comply with the U.S. – E.U. Safe Harbor framework and the U.S. – Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the EU and Switzerland. Personal Information (“PI”) means any information or set of information that identifies or can reasonably be used to identify an individual. PI does not include information that is encoded or anonymized, or publicly available information that has not been combined with non-public personal data.
PTC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE AVAILABILITY, USE, TIMELINESS, SECURITY, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE THINGWORX MARKETPLACE, THE CONTENT CONTAINED THEREIN INCLUDING APPLICATIONS, OR ANY OTHER WEB SITES LINKED TO OR FROM THE THINGWORX COMMUNITY, EVEN IF PTC REVIEWED, CERTIFIED, OR MODERATED THESE THINGS. PTC DOES NOT WARRANT OR GUARANTEE THAT YOUR USE OF THE THINGWORX MARKETPLACE WILL INCREASE YOUR SALES OR RESULT IN ANY OTHER BENEFIT TO YOU. ANY THINGWORX MARKETPLACE CONTENT DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE USE OF THE THINGWORX MARKETPLACE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR USE OF THE THINGWORX MARKETPLACE. THE THINGWORX MARKETPLACE, AND THE CONTENT CONTAINED THEREIN, IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PTC DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
You agree to indemnify, defend, and hold PTC, its affiliates, directors, officers, partners, third party vendors, advertisers, and employees, harmless from any and all third party claims, damages, losses, liabilities, actions, judgments, costs, and expenses (including reasonable attorneys' fees) incurred by PTC in connection with Your actions and/or any of Your Solutions, Your Material, Your Marketplace Listing(s), or any other content submitted by You and published on the ThingWorx Marketplace, including without limitation, arising out of or in connection with: (a) allegations that any of Your Solutions, Your Material, Your Marketplace Listing(s), or any other content submitted by You and published on the ThingWorx Marketplace, infringes, misappropriates or violates any rights of a third party; (b) allegations that any of Your Solutions, Your Material, Your Marketplace Listing(s), or any other content submitted by You and published on the ThingWorx Marketplace, is defective or caused harm or injury to any third party, including allegations related to a data or security breach, (c) allegations of breach by You of a representation, warranty or agreement related to any of Your Solutions, Your Material, or Your Marketplace Listing(s); (d) allegations that You violate any laws and/or regulations related to the use of Your Solution and/or Your Materials; or (e) allegations that You breach the section of this Agreement titled "Customer Data."
LIMITATION OF LIABILITY
NEITHER PTC NOR PTC’S AFFILIATES, LICENSORS, OR THIRD PARTY VENDORS (EACH A “PTC PARTY”) WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND IN EXCESS OF TEN THOUSAND DOLLARS ($10,000) ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE THINGWORX MARKETPLACE, YOUR SOLUTION, YOUR MATERIAL, YOUR MARKETPLACE LISTING, OR ANY LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE FAILURE, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR LOSS OF YOUR CUSTOMER DATA, YOUR MATERIAL, YOUR LISTING, OR YOUR SOLUTION, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR WITHIN THE THINGWORX MARKETPLACE. IN ADDITION, NO PTC PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, BUSINESS OR PROFITS) EVEN IF A PTC PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
DIGITAL MILLENNIUM COPYRIGHT ACT; RISK OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
Digital Millennium Copyright Act. If we receive a notice alleging that any material You place on the ThingWorx Marketplace infringes another party’s copyright, we may disable and/or terminate Your access to the ThingWorx Marketplace and/or remove or modify any content on the ThingWorx Marketplace in accordance with Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act). If You believe that You have a copyright infringement claim resulting from material or content posted on the ThingWorx Marketplace, please contact us at: firstname.lastname@example.org for details on how to properly notify us of a potential copyright infringement or other intellectual property rights issue.
Risk of Intellectual Property Rights Infringement. You acknowledge the risk that users who access Your Solutions and/or Your Materials through the ThingWorx Marketplace may develop applications or products that infringe or misappropriate Your intellectual property rights in Your applications or products. Nothing in this Agreement restricts You from pursuing claims against such infringing users. However, in that event, You agree that PTC’s provision of the ThingWorx Marketplace does not constitute contributory infringement or aiding or abetting of any such infringement or misappropriation.
Governing Law; Venue Waiver of Jury Trial. This Agreement is governed by, and interpreted and enforced in accordance with, the substantive laws of the Commonwealth of Massachusetts without regard to its conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not and will not apply to any transaction between the parties. The state and federal courts located in the Commonwealth of Massachusetts have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Notices. All communications and notices made or given pursuant to this Agreement must be in writing in the English language and are deemed to have been given upon (i) PTC posting a notice on the ThingWorx Marketplace; (ii) PTC sending a message to the email address then associated with Your account; (iii) personal delivery, which may be initiated by either party; (iv) or the third business day after mailing by either party. Notices to You will be addressed to Your contact designated by You during the registration process. It is Your responsibility to keep Your email address and other contact information current. You will be deemed to have received any email sent to the email address then associated with Your account when PTC sends the email, whether or not You actually receive the email. Notices to PTC must be addressed to 140 Kendrick Street, Needham, MA, ATTN: General Counsel, with a copy to 350 Eagleview Blvd., Suite 150, Exton, PA, ATTN: ThingWorx Partner Program: ThingWorx Marketplace.
Relationship of the Parties. The parties are independent contractors. Notwithstanding use of the term “partner” in this Agreement, this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Assignment. You may not assign any rights or obligations under this Agreement without the prior written consent of PTC (not to be unreasonably withheld), except that You may assign this Agreement without PTC’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets. Any attempted assignment, transfer, or delegation by You in violation of the foregoing will be null and void.
Other Agreements. This Agreement is in addition to, and does not supersede, any other agreement between You and PTC, including but not limited to the ThingWorx-Ready Agreement; ThingWorx System Integrator Agreement; ThingWorx Reseller Agreement; or, any other PTC partner program agreement (each a “Partner Program Agreement”). This Agreement and the applicable Partner Program Agreement between You and PTC constitute the entire agreement between You and PTC relating to Your use of and access to the ThingWorx Marketplace. If there is a conflict or inconsistency between this Agreement and any Partner Program Agreement to which You are a party, this Agreement will govern with respect to Your access and use of the ThingWorx Marketplace. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
Survival: The following sections will survive termination or expiration of this Agreement: Your Responsibilities, Your Representations; Warranties; and Covenants, Customer Support, Intellectual Property Ownership, Customer Data, Warranty Disclaimer, Indemnity, Limitation of Liability, Digital Millennium Copyright Act; Risk of Intellectual Property Rights Infringement, and Miscellaneous. Termination of this Agreement will not derogate from any rights You may have under any other agreements with Us, including but not limited to any Partner Program Agreement.