CAKE.com Marketplace Listing Agreement
Last Updated: 21/02/2023
This CAKE.com Marketplace Listing Agreement (this “Agreement”) is a binding agreement between CAKE.com Inc. (“CAKE.com”, “we” or “us”) and the individual or entity submitting an Add-On in the CAKE.com Marketplace (“Developer” or “you”). Your access to and use of the CAKE.com Marketplace, including your submission and listing of an Add-On, is governed by this Agreement and the CAKE.com Developer Terms (“Developer Terms”), which together form an agreement between you and CAKE.com.
By checking the box (or similar action) to accept this Agreement or by submitting any Add-On to the CAKE.com Marketplace, you agree to be bound by this Agreement.
By using the CAKE.com Marketplace, you affirm that you are of legal age to enter into this Agreement.
If you are an individual accessing or using the site on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this agreement. References to “you” and “your” in this agreement will refer to both the individual using the site and to any such Organization.
Under this Agreement, you appoint and authorize CAKE.com, as your commercial agent, to promote, sell, test and distribute Add-Ons (as defined below) on the terms and conditions of this Agreement, and CAKE.com accepts such appointment.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through our website. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Your use of the Developer Portal or the CAKE.com Marketplace following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed.
1. Introduction to the CAKE.com Marketplace
The CAKE.com marketplace is an application-based marketplace that allows participating developers to offer Add-Ons for Services to CAKE.com’s Enterprise Users pursuant to each developer’s terms and conditions. Add-Ons can be written using the CAKE.com Tools and can be written for use with certain CAKE.com products. As a Marketplace participant, you may charge a fee for your Add-Ons or offer your Add-Ons free of charge under certain circumstances.
2. Key Definitions
All capitalized terms that are not defined herein have the meanings ascribed to them in the Developer Terms.
2.1. “Add-On User Data” means any data, content or information of an Add-On User, including personal information, that is accessed, collected, stored, or otherwise processed by you or your Add-On in connection with its use with the CAKE.com Marketplace or Services.
2.2. “Add-On User Privacy Policy” means a legally adequate and compliant privacy policy provided to each Add-On User from whom you or your Add-On collects, accesses, or otherwise processes Add-On User Data.
2.3. “Add-On User Terms” means a legally adequate and compliant agreement governing Add-On Users’ use of your Add-Ons.
2.4. “Marketplace Guidelines” means the terms, rules and policies that CAKE.com makes available at dev-docs.marketplace.cake.com, which set forth certain requirements (as may be modified by CAKE.com from time to time) for offering your Add-Ons in the CAKE.com Marketplace.
2.5. “Net Revenues” means all gross revenues received by CAKE.com from Sales, less (a) applicable taxes, (b) sales processing, and (c) returns, rebates, charge-backs, fraudulent transaction amounts, and refunds. “Applicable taxes” do not include withholding taxes, which are addressed in Section 4.6(b).
2.6. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Add-Ons.
2.7. “Process”, “Processing”, and/or “Processed” means any operation or set of operations that are performed on personal information or on sets of personal information, whether or not by automated means.
2.8. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of Add-On User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your Add-On or (c) issue involving your Add-On that materially degrades CAKE.com systems or networks.
3. Using the Marketplace to Publish Your Add-Ons
Subject to successful completion of CAKE.com’s review process, you may offer Add-Ons in the CAKE.com Marketplace. You designate your listing type using your Developer Account on the CAKE.com Marketplace (subject to approval by CAKE.com), based on the following options: (a) Add-Ons that you provide free of charge (“Free Add-Ons”) and (b) Add-Ons for which Add-On Users pay all fees to CAKE.com (with Developer receiving a Revenue Share as described in this Agreement, and CAKE.com receiving the Revenue Share from Add-On Users as Developer’s commercial agent) (“Paid Add-Ons”).
4. Financial Terms
This Section 4 (Financial Terms) shall only apply to Paid Add-Ons.
4.1. List Price. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Paid Add-Ons (the “List Prices”). “Sale” includes any initial or renewal sale, subscription or license of a Paid Add-On (or related content or services) through the CAKE.com Marketplace.
4.2. Fee. As consideration for the services rendered by CAKE.com (including through its contractors) under this Agreement, CAKE.com may retain a share of Net Revenues as specified in the Developer Portal. CAKE.com shall remit to Developer the remaining portion of Net Revenues (“Developer Revenue”) in accordance with this Section 4. CAKE.com may, in its sole discretion, issue refunds or return any amounts paid to Add-On Users in accordance with CAKE.com’s standard procedures and policies.
4.3. Currency Conversion. Unless otherwise specified in the Marketplace Guidelines, you will designate your List Price in United States Dollars (USD) and CAKE.com will make all Revenue Share payments to you in USD.
4.4. Payment by CAKE.com. CAKE.com shall remit Developer Revenue to Developer on a monthly basis within thirty (30) days after the end of each month (each, a “Payment”), together with a report showing the calculation of Developer Revenue. Developer shall be solely responsible for any and all financial institution fees relating to each Payment. CAKE.com will not be required to remit Developer Revenue for any month in which Developer Revenue is less than Five Hundred U.S. Dollars (USD $500) (or the equivalent thereof in other currencies, based on CAKE.com’s standard currency exchange process and timing) (the “Threshold”); provided that, any such amounts that do not meet the Threshold (each a “Withheld Amount”) will be carried forward month-over-month until the sum of such Withheld Amounts exceeds the Threshold, at which time CAKE.com will make a Payment for such Withheld Amounts to Developer within thirty (30) days after the end of the month in which the Threshold is met.
4.5. Use of Certain Information. CAKE.com may use or disclose aggregated sales and other financial data related to the CAKE.com Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
4.6. Taxes.
(a) Sales Taxes. In the event that CAKE.com’s sale or delivery of any Add-On to any Add-On User is subject to any sales, use, goods and services, value added, or other similar tax (other than Developer’s income taxes) under Applicable Laws (collectively, “Sales Taxes”), responsibility for the collection and remittance of such Sales Taxes will be determined by CAKE.com and remitted by CAKE.com to relevant tax or other competent authorities. Developer shall indemnify and hold CAKE.com harmless against any and all claims by any tax or other competent authority for any underpayment of any Sales Taxes, and any penalties and/or interest thereon.
(b) Withholding Taxes. In the event that any remittance or Payment made by CAKE.com to Developer is subject to any withholding or similar tax (“Withholding Tax”), the full amount of such Withholding Tax shall be solely from Developer’s Account and will not reduce the amount to which CAKE.com is entitled. If CAKE.com reasonably believes that Withholding Tax is due, CAKE.com may deduct the full amount of such Withholding Tax from the amount otherwise owed to Developer, and may pay the full amount withheld over to the relevant tax or other competent authority. Where applicable, CAKE.com will apply a reduced rate of Withholding Tax, if any, provided for in any applicable income tax treaty only if Developer furnishes CAKE.com with the documentation required under such income tax treaty, or documentation otherwise satisfactory to CAKE.com, sufficient to establish Developer’s entitlement to the benefit of such reduced rate of Withholding Tax. Upon Developer’s timely request to CAKE.com in writing, using means reasonably designated by CAKE.com, CAKE.com will use commercially practical efforts to report to Developer the amount of CAKE.com’s payment of Withholding Tax to the relevant tax or other competent authority on Developer’s behalf. Developer will indemnify and hold harmless CAKE.com against any and all claims by any tax or other competent authority for any underpayment of any Withholding Tax, and any penalties and/or interest thereon including underpayment attributable to any erroneous claim or representation by Developer as to Developer’s entitlement to the benefit of a reduced rate of, or Developer’s disqualification from, Withholding Tax.
5. Your Content; License to CAKE.com; Add-On User Licensing
5.1. Delivery. You will deliver Add-Ons to CAKE.com for CAKE.com’s review. Together with delivery of each Add-On, you will also provide the following information and materials: (a) Add-On title, category, Developer name, List Prices (if applicable), product description, icon, logo or banner images, security and privacy information, and any other information related to the Add-Ons that CAKE.com requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Add-On that you wish to appear in connection with your Add-On; and (c) your Add-On User Terms (if any) and Add-On User Privacy Policy ((a)-(c), collectively, “Product Information”). Together, the Add-Ons and Product Information are “Content”.
5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide CAKE.com with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including CAKE.com’s Marketplace Guidelines (which are hereby incorporated into this Agreement). However, this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or any additional policies included or referenced in the Marketplace Guidelines.
5.4. License Grant to CAKE.com. You hereby grant to CAKE.com, during the Term (and thereafter in accordance with Section 10 (Term and Termination)), the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:
(a) to resell, distribute or make available, as applicable, the Add-Ons through the CAKE.com Marketplace to Enterprise Users by all means of electronic distribution available now or in the future;
(b) to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the CAKE.com Marketplace and (ii) listings for your Add-Ons;
(c) to use, store, copy and distribute your Content (i) for testing and evaluation (including scanning for Viruses, as defined in Section 11.5) conducted by CAKE.com and its third party vendors; (ii) for purposes of exercising CAKE.com’s rights and fulfilling CAKE.com’s obligations hereunder; and (iii) for purposes of enforcing this Agreement and the Marketplace Guidelines;
(d) to use your Add-Ons for CAKE.com’s own business purposes internally, within the scope for which the Add-On’s use is reasonably intended (“Internal Use License”).
5.5. License Clarifications. The licenses granted to CAKE.com in Section 5.4: (a) include rights to distribute, promote and make available New Versions to eligible Add-On Users, (b) include the right, as described in Section 10 (Term and Termination), to continue to retain and make available Add-Ons and Product Information to existing Add-On Users after the Term for a period of thirty-one (31) days, and (c) are granted under all applicable intellectual property rights (including patent rights).
5.6. Add-On User Terms. You, not CAKE.com, license your Add-Ons directly to Add-On Users. For each Add-On, you may provide and enter into your own Add-On User Terms with any Add-On User and require all Add-On Users to review and acknowledge your Add-On Privacy Policy. Your Add-On User Terms and Add-On User Privacy Policy must comply with, and be consistent with, the terms and conditions of this Agreement, including Section 8.3 (Add-On User Data and Privacy-Related Obligations). If there is a conflict between the Add-On User Terms and this Agreement, this Agreement will prevail to the extent of the conflict. You agree that CAKE.com does not and will not have any responsibility or liability related to compliance or non-compliance by you or any Add-On User under the applicable Add-On User Terms. In addition, unless otherwise specified in the Marketplace Guidelines, the license you offer for any Add-On for use with a downloadable CAKE.com product must be perpetual, and the license term you offer may be specified in the applicable Add-On User Terms. Your Add-On User Terms must include the following provisions: (a) CAKE.com does not own or offer and is not responsible for the Add-On; (b) CAKE.com is not providing any warranty for the Add-On except, if applicable, to refund the purchase price for it; (c) CAKE.com is not responsible for the maintenance or other support services for the Add-On and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the Add-On, including any third-party product liability claims, claims that the Add-On fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, claims arising out of any Security Incident relating to an Add-On, and claims with respect to intellectual property infringement; (d) CAKE.com and its affiliates are third-party beneficiaries of such Add-On User Terms and will have the right to enforce the Add-On User Terms against the Add-On User directly; and (e) if there is a conflict between the CAKE.com Terms of Use and the Add-On User Terms, the CAKE.com Terms of Use will prevail to the extent of the conflict.
5.7. Developer Portal. During the Term, Developer may access the Developer Portal, which may include access to the Marketplace Guidelines, CAKE.com Marks, marketing tools and services, CAKE.com Tools, and other Marketplace resources. Developers may use such resources solely to exercise its rights and fulfill their obligations under this Agreement. To access the Developer Portal, a Developer may be required to activate or validate its status as a Developer through its Developer Account and create a user name and secure password, as further specified on the Developer Portal landing page.
6. Delivery Commitments and Responsibilities related to Add-On Users
6.1. Delivery Commitment. You will deliver electronically to CAKE.com (and continue to make available during the Term) all versions of Add-Ons for which you have the rights required under this Agreement. You will deliver any New Versions to the Add-Ons, together with any related Product Information, as soon as they are available. For Paid Add-Ons, you must deliver to CAKE.com all of the same versions and editions of such Add-On (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service. Subject to Section 10.3 (Effect of Termination; Transition) you must also deliver all Product Information to CAKE.com and make the Add-On (including any New Versions) available to CAKE.com and Enterprise Users on the Marketplace on a hosted basis at least until the conclusion of any paid terms or subscriptions of all Add-On Users who have purchased such Add-Ons.
6.2. Add-On User Support. You will use commercially reasonable efforts to provide at least one support channel (e.g., telephone, web-based and/or email support) to Add-On Users for your Add-Ons during whatever support hours that you promise to Add-On Users. You will provide to CAKE.com a current email address to which CAKE.com may direct inquiries from Add-On Users regarding your Add-Ons. You are solely responsible for providing all support for your Add-Ons, and for providing to Add-On Users of your Add-Ons all information necessary for their use of your Add-Ons.
7. Reservations of Rights
As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the Services and CAKE.com Tools or other CAKE.com technology or materials used or included in the Content. Subject to your foregoing rights in the Content, CAKE.com retains all right, title and interest in and to the CAKE.com Marketplace, CAKE.com Tools, all CAKE.com products, Services, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8. Additional CAKE.com Marketplace Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any CAKE.com code or technology used in connection with the CAKE.com Marketplace, including the CAKE.com Tools. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of CAKE.com, any Enterprise User, Add-On User, or other third party. You agree not to make any representations, guarantees or warranties (a) that violate any laws or regulations, including any false advertising or consumer protection laws, (b) with respect to CAKE.com, the CAKE.com Marketplace, or CAKE.com’s product or services, or (c) by or on behalf of CAKE.com, including with respect to handling of Security Incidents. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue CAKE.com or the Marketplace.
8.2. CAKE.com Marketplace Operations. CAKE.com maintains sole discretion to determine the terms and conditions and all features and operations of the CAKE.com Marketplace. You acknowledge that CAKE.com has no obligation to promote, distribute, list or offer for Sale any Add-On, or to continue to do so, and, if distributed, CAKE.com does not guarantee any specific marketing or placement of the Add-On(s), or that the Add-On(s) will generate revenue. With respect to Paid Add-Ons only, CAKE.com is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service only related to these obligations, and, for clarity, all Sales through the CAKE.com Marketplace will be processed by CAKE.com’s third-party payment processor and will be subject to the Revenue Share terms above. CAKE.com will own and control all Sales and other data CAKE.com obtains from Add-On Users in connection with the CAKE.com Marketplace, but will make available certain Add-On User Data (as defined below) to you, subject to Section 8.4.
8.3. Add-On User Data and Privacy‐Related Obligations.
(a) Add-On User Data. An Add-On User may provide you or enable you or your Add-Ons to access Add-On User Data. Provided you comply with the requirements in Section 8.3(b) below, you may collect Add-On User Data from Add-On Users through your Add-On and/or through a CAKE.com Service.
(b) Collection and Use. You must obtain all legally required and necessary rights, permissions, and consents from Add-On Users for your Add-On to Process any Add-On User Data, and will ensure that all such Processing complies with your Add-On User Terms, Add-On User Privacy Policy, and all Applicable Laws. If you retrieve Add-On User Data directly from CAKE.com (e.g., end user contact information) via CAKE.com-provided APIs, portals or other similar means, you must limit your Processing of such information to that (a) specifically authorized by the Add-On User or (b) necessary for the purposes of providing the functionality of your Add-On. You may not sell any Add-On User Data. CAKE.com shall not be liable for, or have any responsibility in connection with, Add-On User Data Processed by you or your Add-On, and such activities with regard to Add-On User Data are not in any way by or on behalf of CAKE.com.
(c) Add-On User Communications. You may use Add-On User Data to communicate directly with Add-On Users only where required by Applicable Law or as consented to or requested by the Add-On User. But you may not send marketing messages to Add-On Users within any user experience integrated with CAKE.com Products without the Add-On User’s and CAKE.com’s express written consent.
(d) Add-On User Terms. You must ensure Add-On Users agree to your Add-On User Terms, which must comply with all Applicable Laws and clearly describe applicable usage limits that may impact an Add-On User’s use of your Add-Ons.
(e) Add-On User Privacy Policy. You must comply with all Applicable Laws with respect to your Processing of Add-On User Data, including providing a clear, complete, and conspicuous Add-On User Privacy Policy that notifies Add-On Users (1) how you access, collect and Process Add-On User Data, (2) to whom you disclose Add-On User Data, (3) in which country or countries the Add-On User Data will be stored and (4) that in connection with your Add-On, you (not CAKE.com) are responsible for the Processing of Add-On User Data, along with other disclosures required by Applicable Laws. You must comply with the terms and conditions of your Add-On User Privacy Policy, and promptly notify Add-On Users and CAKE.com of any material changes to it.
(f) Security. You must implement, maintain, and monitor a comprehensive written information security policy that contains appropriate administrative, technical, and organizational safeguards to ensure the confidentiality, integrity, and availability of Add-On User Data and prevent any unauthorized or unlawful Processing of such data. The safeguards will be appropriate to the nature of the Add-On User Data, meet or exceed prevailing industry standards, and comply with Applicable Laws. You will also comply with any security, coding practices, authentication, encryption, or other requirements for Add-Ons set forth in the Marketplace Guidelines or otherwise made available to you in the Developer Portal. You agree to remediate all security vulnerabilities identified to you by CAKE.com within the timeframes described in the Security Requirements.
(g) Security Incidents. Upon discovery or notice of any Security Incident, unless prohibited by Applicable Laws, you will promptly (within 24 hours) notify CAKE.com via email at support@cake.com. Your notice will provide CAKE.com information about the Security Incident and how it may affect the CAKE.com Marketplace, CAKE.com products or Services, Enterprise Users, or Add-On User Data, and you agree to provide CAKE.com any further information related to the Security Incident to reasonably enable CAKE.com to mitigate risk to its reputation, systems, the CAKE.com Marketplace, and/or Services. Without limiting your other obligations, in event of a Security Incident, you will be solely responsible, at your own expense, for managing any response to the Security Incident, including the investigation, remediation, and notifications to affected Add-On Users and regulatory authorities in accordance with Applicable Laws and industry standards. However, you must obtain CAKE.com’s approval for any breach notifications to Add-On Users to the extent they refer directly or indirectly to CAKE.com. You must ensure that you have an updated contact name and contact information in your Developer Account for Security Incidents. Without limiting any other reserved rights of termination or suspension, CAKE.com may de-list your Add-On from the CAKE.com Marketplace or suspend use of or access of your Add-On to CAKE.com products as a result of any Security Incident.
(h) Security and Privacy Review. CAKE.com, or an authorized third party selected by us, may conduct a security or privacy review of any Add-On or its supporting infrastructure to ensure compliance with (i) your obligations under Section 8.3 or (ii) security and privacy related sections of the Marketplace Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments. You agree to reasonably and promptly cooperate with such requests and reviews of your Add-On and/or your Add-On’s supporting infrastructure (in the case of Cloud Add-Ons). CAKE.com (itself or through third parties) may conduct new or additional Add-On security scans beyond those described in this Section 8.3(h), in which case CAKE.com will provide you at least 15 days prior notice, and you may choose to object to such scan with notice to CAKE.com.
8.4. Export Controls and Economic Sanctions. Developer will comply, and will not cause CAKE.com to not comply (by for example, providing an Add-On to CAKE.com under this Agreement for which required export clearances have not been obtained), with all applicable export control and economic sanctions laws and regulations of the United States and any other applicable governmental authority, including the U.S. Export Administration Regulations.
8.5. Feedback. Providing feedback, comments or suggestions about the CAKE.com Marketplace (“Feedback”) to CAKE.com is wholly voluntary. CAKE.com may freely use Feedback for any purpose.
8.6. Aggregated Information. In addition to CAKE.com’s other rights, CAKE.com may Process and use aggregated and/or de-identified information regarding the CAKE.com Marketplace and Add-Ons.
9. CAKE.com Control of Marketplace
CAKE.com may determine in its sole discretion to make available or list any Add-On through the CAKE.com Marketplace, or to reject any submitted Add-On or remove any listed Add-On from the CAKE.com Marketplace. CAKE.com may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect Enterprise Users or Add-On Users. For the avoidance of doubt and without limiting the generality of the foregoing, CAKE.com shall have the right to suspend or remove any Add-On that does not function properly, does not comply with this Agreement, or does not comply with Applicable Laws. Inclusion of an Add-On in the CAKE.com Marketplace does not relieve you of responsibility to ensure the Add-On complies with this Agreement or to perform other obligations under this Agreement.
10. Term and Termination
10.1. Term. The term of this Agreement (the “Term”) will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or CAKE.com terminates it.
10.2. Termination Rights.
(a) Either CAKE.com or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular Add-Ons, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the other party breaches its confidentiality, security, or privacy related obligations under this Agreement, or (3) the other party infringes or misappropriates the terminating party’s intellectual property rights.
(b) Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by CAKE.com at the time), CAKE.com may also terminate this Agreement (and/or terminate or suspend either your Developer account or this Agreement with respect to any particular Add-Ons) under the following circumstances: (i) CAKE.com ceases to operate the Marketplace, (ii) you violate CAKE.com’s policies, or (iii) CAKE.com determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to CAKE.com or any third party or otherwise harm the Marketplace or other Developers or users.
10.3. Effect of Termination; Transition.
(a) Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your Add-On from the Marketplace, (i) in CAKE.com’s discretion, CAKE.com may continue to fulfill any Add-On orders for Add-Ons pending as of the date the termination takes effect, and (ii) CAKE.com will use reasonable efforts to take down the listing for your Add-On within forty-five (45) days after the effective date of termination (or, if specified by CAKE.com, within the same period after notice of termination) (the “Transition Period”). Unless CAKE.com specifies in writing otherwise, you must continue to make Add-Ons available during the Transition Period and shall not delete your Developer Account during this time period. CAKE.com may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your Add-On, to the extent necessary for its own record-keeping purposes or to comply with Applicable Laws.
(b) Add-On User Rights. Notwithstanding anything to the contrary stated herein, you are responsible for terminating your Add-On with your Add-On Users in accordance with your Add-On Terms. The termination provisions in your Add-On Terms must allow your Add-On to properly terminate once CAKE.com no longer offers your Add-Ons in the Marketplace in accordance with these Terms. You understand and agree that upon termination of these Terms and any applicable Transition Period, CAKE.com will not offer or support your Add-On, and CAKE.com is in no way responsible for any issues relating to your termination of or failure to terminate Add-Ons with Add-On Users.
(c) Your Transition Obligations. Prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for, consistent with CAKE.com’s guidance and instructions, notifying Add-On Users that the Add-On will become unavailable in a manner that complies with Applicable Laws and, at minimum, includes the date on which it will become unavailable.
For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Add-On to CAKE.com for distribution under this Agreement thereafter, but CAKE.com’s post-termination rights in this Section 10.3 will apply for the latest version of the Add-On you provided to CAKE.com hereunder.
10.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional CAKE.com Marketplace Terms) (excluding your participation in any Add-On Program or use of related badges), and 9 (CAKE.com Control of Marketplace) through 18 (General).
11. Representations and Warranties
You represent, warrant and covenant that:
11.1. You have the full right, power, and authority to enter into and fully perform this Agreement;
11.2. Before providing CAKE.com any Content or listing Content in the CAKE.com Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to Add-On Users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
11.3. None of the following will violate any Applicable Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Add-Ons or the Content; (iii) the sale or distribution of the Add-Ons or Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Add-Ons or Content;
11.4. You will immediately notify CAKE.com if you lose any IP rights related to your Add-Ons or become aware of a third party claim related to these rights;
11.5. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and
11.6. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your Add-On User Terms) based on your use of third party “open source” software or other third party intellectual property in any Add-On. You will also promptly make available to CAKE.com, Add-On Users and any other third party that is entitled to it, the source code corresponding to any Add-On or portion thereof if required, and in the manner required, by applicable third party terms and conditions. CAKE.com’s use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
12. Disclaimer of Warranties
THE CAKE.COM MARKETPLACE, CAKE.com MARKS AND CAKE.com TOOLS ARE PROVIDED “AS IS” AND CAKE.com EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
13. Indemnity
13.1. Indemnification Obligations. Developer will defend (at CAKE.com’s option), indemnify, and hold harmless CAKE.com and its Representatives from and against any and all claims, actions, liabilities, losses, damages, judgments, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) brought by a third party arising out of or related to (a) any breach or alleged breach by Developer of this Agreement, including any breach or alleged breach of Developer’s representations and/or warranties herein or (b) any Security Incidents arising from your Add-Ons or third party services supporting your Add-Ons. “Representatives” of a party means the party’s affiliates, and the party and its affiliates’ respective licensors, licensees, directors, officers, employees, contractors, agents, representatives, and third party service providers, along with the successors and assigns of the foregoing.
13.2. Indemnification Process. CAKE.com will notify Developer promptly of any Claim(s) for which CAKE.com or any of its Representative seeks indemnification and, at CAKE.com’s option, may permit Developer to control the defense of such Claim(s) with counsel Developer chooses; provided that, Developer will not settle, compromise, or resolve any such Claim(s) in a manner that imposes any liability or obligation on CAKE.com or any of its Representatives, or affects CAKE.com’s or any of its Representative’s rights, without obtaining CAKE.com’s or its applicable Representative’s prior written approval. In the event Developer is permitted to control the defense of any Claim(s), CAKE.com and any of its Representatives may, at its own expense, assist in the defense of such Claim(s) if it so chooses with counsel of its own choosing.
14. CAKE.com Confidential Information
14.1. Definition. All information disclosed by CAKE.com that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of the CAKE.com Marketplace and CAKE.com’s applications (including, without limitation, all source code developed by or on behalf of CAKE.com); non-public aspects of third-party applications listed in the CAKE.com Marketplace to which you obtain access as a result of the relationship between you and CAKE.com under this Agreement; non-public Add-On User Data provided to you by CAKE.com; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and CAKE.com under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to CAKE.com or anyone else.
14.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide CAKE.com with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at CAKE.com’s cost, if CAKE.com wishes to contest the disclosure.
14.3. Injunctive Relief. In event of actual or threatened breach of this Section 14, CAKE.com shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
14.4. Independent Development; Information You Provide Is Not Confidential. CAKE.com develops its own products and services and works with many other partners and developers, and either CAKE.com or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your Add-Ons. Subject to CAKE.com’s obligations relating to Add-On source code in Section 8.3(h), nothing limits CAKE.com or such third parties from doing so, and CAKE.com has no confidentiality obligations for information you submit in connection with this Agreement.
15. CAKE.com Trademarks/Publicity/Intellectual Property
You will not violate CAKE.com intellectual property in any form, including CAKE.com patents, trademarks, copyrights, and trade secrets. You will: (i) only use the CAKE.com Marks in the form and manner as set forth in any brand guidelines made available to you by CAKE.com, including through the Developer Portal, and only in connection with the sale of your Add-Ons in the CAKE.com Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, CAKE.com retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that CAKE.com communicates to you regarding the use of CAKE.com Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any CAKE.com Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the CAKE.com Marks, unless you are otherwise authorized to continue using the CAKE.com Marks pursuant to a separate written agreement with CAKE.com.
16. Limitations of Liability
16.1. General Limitation. NEITHER CAKE.com NOR ANY OF ITS REPRESENTATIVES WILL BE LIABLE TO DEVELOPER OR ANY OF DEVELOPER’S REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES SUFFERED BY DEVELOPER OR ANY OF DEVELOPER’S REPRESENTATIVES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, FOR ANY AND ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY) EVEN IF CAKE.com OR ANY OF ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
16.2. Liability Cap. THE ENTIRE LIABILITY OF CAKE.com AND ITS REPRESENTATIVES COLLECTIVELY UNDER, OR WITH RESPECT TO THE SUBJECT MATTER OF, THIS AGREEMENT, SHALL NOT EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS (USD $100).
16.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties.
17. Dispute Resolution; Governing Law
17.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 17.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 17 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
17.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in San Jose in Santa Clara County, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Jose in Santa Clara County, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
17.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 17.1 (Informal Resolution) and 17.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent CAKE.com from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
17.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
18. General
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and CAKE.com. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. The word “including” will be interpreted without limitation when used in this Agreement. Each party will bear its own costs and expenses in performing this Agreement. CAKE.com’s failure to enforce any provision of this Agreement will not constitute a waiver of CAKE.com’s rights to subsequently enforce the provision. CAKE.com may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that CAKE.com’s affiliates, contractors and service providers may exercise all rights of CAKE.com under this Agreement, including CAKE.com’s license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without CAKE.com’s prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give CAKE.com written notice of any such assignment at least ten (10) business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that CAKE.com determines that such assignment is to a competitor of CAKE.com, CAKE.com may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given by you via email to support@cake.com and by us to you by posting on our website or by email to the most recent email address that we have on file for you. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.