fs12010ex10iv_appsgenius.htm


Exhibit 10.4


 


 



By Your clicking to agree to this Schedule 2, which is hereby offered to You by Apple, You agree with Apple to amend that certain iPhone Developer Program License Agreement currently in effect between You and Apple (the “Agreement”) to add this Schedule 2 thereto (supplanting any existing Schedule 2).  Except as otherwise provided herein, all capitalized terms shall have the meanings set forth in the Agreement.







Schedule 2


 


1. Appointment of Agent and Commissionaire


 


1.1 You hereby appoint Apple and Apple Subsidiaries (collectively “Apple”) as: (i) Your agent for the marketing and delivery of the Licensed Applications to end-users located in those countries listed on Exhibit A, Section 1 to this Schedule 2; and (ii) Your commissionaire for the marketing and delivery of the Licensed Applications to end-users located in those countries listed on Exhibit A, Section 2 to this Schedule 2, during the Delivery Period. You hereby acknowledge that Apple will market and make the Licensed Applications available for download by end users through one or more App Stores, but for, and on Your behalf. For purposes of this Schedule 2, the term "Licensed Application" includes any additional functionality, content or services sold by You from within a Licensed Application using the In App Purchase API, and "end-user" includes actual end-users of Licensed Applications as well as authorized institutional customers, such as educational institutions approved by Apple, which may acquire the Licensed Applications for the end-users.


 


1.2 In furtherance of Apple’s appointment under Section 1.1 of this Schedule 2, You hereby authorize and instruct Apple to:







(a) market, solicit and obtain orders on Your behalf for Licensed Applications from end-users located in the countries listed on Exhibit A;







(b) provide hosting services to You, in order to allow for the storage of, and end-user access to, the Licensed Applications;







(c) make copies of, format, and otherwise prepare Licensed Applications for acquisition and download by end-users, including adding the Security Solution;







(d) allow end-users to access copies of the Licensed Applications, so that end-users may acquire from You and electronically download those Licensed Applications, Licensed Application Information, and associated metadata to end-users through one or more App Stores;







(e) issue invoices for the purchase price payable by end-users for the Licensed Applications;







(f) use (i) screen shots and/or up to 30 second excerpts of the Licensed Applications; (ii) trademarks and logos associated with the Licensed Applications; and (iii) Licensed Application Information, for promotional purposes in marketing materials and gift cards, excluding those portions of the Licensed Applications, trademarks or logos, or Licensed Application Information which You do not have the right to use for promotional purposes, and which You identify in writing at the time that the Licensed Applications are delivered by You to Apple under Section 2.1 of this Schedule 2, and use images and other materials that You may provide to Apple, at Apple’s reasonable request, for promotional purposes in marketing materials and gift cards; and







(g) otherwise use Licensed Applications, Licensed Application Information and associated metadata as may be reasonably necessary in the marketing and delivery of the Licensed Applications in accordance with this Schedule 2. You agree that no royalty or other compensation is payable for the rights described above in Section 1.2 of this Schedule 2.







1.3 The parties acknowledge and agree that their relationship under this Schedule 2 is, and shall be, that of principal and agent, or principal and commissionaire, as the case may be, as described in Exhibit A, Section 1 and Exhibit A, Section 2, respectively, and that You, as principal, are, and shall be, solely responsible for any and all claims and liabilities involving or relating to, the Licensed Applications, as provided in this Schedule 2. The parties acknowledge and agree that Your appointment of Apple as Your agent or commissionaire, as the case may be, under this Schedule 2 is non-exclusive.







1.4 For purposes of this Schedule 2, the “Delivery Period” shall mean the period beginning on the Effective Date of the Agreement, and expiring on the last day of the Agreement or any renewal thereof; provided, however, that Apple’s appointment as Your agent and commissionaire shall survive expiration of the Agreement for a reasonable phase-out period not to exceed thirty (30) days.


 


 




  





  











  




 


 




2. Delivery of the Licensed Applications to Apple







2.1 You will deliver to Apple, at Your sole expense, using the iTunes Connect site, the Licensed Applications, Licensed Application Information and associated metadata, in a format and manner prescribed by Apple, as required for the delivery of the Licensed Applications to end-users in accordance with this Schedule 2. Metadata You deliver to Apple under this Schedule 2 will include: (i) the title and version number of each of the Licensed Applications; (ii) the countries You designate, in which You wish Apple to allow end-users to download those Licensed Applications; (iii) any copyright or other intellectual property rights notices; and (iv) Your end-user license agreement (“EULA”), if any, in accordance with Section 4.2 of this Schedule 2.


 


2.2 All Licensed Applications will be delivered by You to Apple using software tools, a secure FTP site address and/or such other delivery methods as prescribed by Apple.


 


2.3 You hereby certify that all of the Licensed Applications You deliver to Apple under this Schedule 2 are authorized for export from the United States to each of the countries listed on Exhibit A hereto, in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774. Without limiting the generality of this Section 2.3, You certify that (i) none of the Licensed Applications contains, uses or supports any data encryption or cryptographic functions; or (ii) in the event that any Licensed Application contains, uses or supports any such data encryption or cryptographic functionality, You have qualified that Licensed Application for export as a “mass market encryption item” in accordance with section 742.15(b)(2) of the Export Administration Regulations, and You will provide Apple with a PDF copy of the mass market export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Security for that Licensed Application. For purposes of determining the proper export classification and export control status of each Licensed Application, You should consult the export compliance decision tree in the iTunes Connect tool. You acknowledge that Apple is relying upon Your certification in this Section 2.3 in allowing end-users to access and download the Licensed Applications under this Schedule 2. Except as provided in this Section 2.3, Apple will be responsible for compliance with the requirements of the Export Administration Regulations in allowing end-users to access and download the Licensed Applications under this Schedule 2.


 


3. Delivery of the Licensed Applications to End-Users


 


3.1 You acknowledge and agree that Apple, in the course of acting as agent and/or commissionaire for You, is hosting the Licensed Applications, and is allowing the download of those Licensed Applications by end-users, on Your behalf. However, You are responsible for hosting and delivering content or services sold by You using the In App Purchase API, except for content that is included within the Licensed Application itself (i.e., the In App Purchase simply unlocks the content). All of the Licensed Applications shall be marketed by Apple, on Your behalf, to end-users at prices established by You, in Your sole discretion, based on the pricing schedule attached to this Schedule 2 as Exhibit C or, at your election via iTunes Connect, at a discount of 50% of Your established price for authorized institutional customers. You may change the price for any Licensed Application at any time, at Your discretion, in accordance with the pricing schedule set forth on that Exhibit C, using tools provided on the iTunes Connect site. As Your agent and/or commissionaire, Apple shall be solely responsible for the collection of all prices payable by end-users for Licensed Applications acquired by those end-users under this Schedule 2.


 


3.2 In the event that the sale or delivery of any of the Licensed Applications to any end-user is subject to any sales, use, goods and services, value added, or other similar tax, under applicable law, responsibility for the collection and remittance of that tax for sales of the Licensed Applications to end-users will be determined in accordance with Exhibit B to this Schedule 2. You shall indemnify and hold Apple harmless against any and all claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest thereon.


 


3.3 In furtherance of the parties’ respective tax compliance obligations, Apple requires that You comply with the requirements listed on Exhibit D to this Schedule 2 or on iTunes Connect depending upon, among other things, (i) Your country of residence and (ii) the countries designated by You in which You wish Apple to allow access to the Licensed Applications. In the event that Apple collects any amounts corresponding to the purchase price for any of Your Licensed Applications before You have provided Apple with any tax documentation required under Exhibit D to this Schedule 2, Apple will not remit those amounts to You, but will hold those amounts in trust for You, until such time as You have provided Apple with the required tax documentation. Upon receipt of all required tax documents from You, Apple will remit to You any amounts held in trust by Apple for You, without interest, under this Section 3.3, in accordance with the provisions of this Schedule 2.


 


3.4 Apple shall be entitled to the following commissions in consideration for its services as Your agent and/or commissionaire under this Schedule 2:







(a) For sales of Licensed Applications to end-users located in those countries listed in Exhibit B, Section 1 of this Schedule 2, Apple shall be entitled to a commission equal to thirty percent (30%) of all prices payable by each end-user. For purposes of determining the commissions to which Apple is entitled under this Section 3.4(a), the prices payable by end-users shall be net of any and all taxes collected, as provided in Section 3.2 of this Schedule 2.







(b) For sales of Licensed Applications to end-users located in those countries listed in Exhibit B, Section 2 of this Schedule 2, Apple shall be entitled to a commission equal to thirty percent (30%) of all prices payable by each end-user.







Except as otherwise provided in Section 3.2 of this Schedule 2, Apple shall be entitled to the commissions specified in Sections 3.4(a) and 3.4(b) hereof without reduction for any taxes or other government levies, including any and all taxes or other, similar obligations of You, Apple or any end-user relating to the delivery or use of the Licensed Applications.


 


 




  





  











  






 


3.5 Upon collection of any amounts from any end-user as the price for any Licensed Application delivered to that end-user hereunder, Apple shall deduct the full amount of its commission with respect to that Licensed Application, and any taxes collected by Apple under Section 3.2 hereof, and shall remit to You, or issue a credit in Your favor, as the case may be, the remainder of those prices in accordance with Apple standard business practices, including the following: remittance payments (i) are made by means of wire transfer only; (ii) are subject to minimum monthly remittance amount thresholds; (iii) require You to provide certain remittance-related information on the iTunes Connect site; and (iv) subject to the foregoing requirements, will be made no later than forty-five (45) days following the close of the monthly period in which the corresponding amount was received by Apple from the end-user. No later than forty-five (45) days following the end of each monthly period, Apple will make available to You on the iTunes Connect site a sales report in sufficient detail to permit You to identify the Licensed Applications sold in that monthly period and the total amount to be remitted to You by Apple.  You hereby acknowledge and agree that Apple shall be entitled to a commission, in accordance with this Section 3.5 on the delivery of any Licensed Application to any end-user, even if Apple is unable to collect the price for that Licensed Application from that end-user. In the event that the purchase price received by Apple from any end-user for any Licensed Application is in a currency other than the remittance currency agreed between Apple and You, the purchase price for that Licensed Application shall be converted to the remittance currency, and the amount to be remitted by Apple to You shall be determined, in accordance with an exchange rate fixed for the Delivery Period, as reflected in Exhibit C attached hereto.  Apple may provide a means on iTunes Connect to enable You to designate a primary currency for the bank account designated by You for receiving remittances (“Designated Currency”).  Apple may cause Apple's bank to convert all remittances in any remittance currency other than the Designated Currency into the Designated Currency prior to remittance to You. You agree that any resulting currency exchange differentials or fees charged by Apple's bank may be deducted from such remittances. You remain responsible for any fees (e.g., wire transfer fees) charged by Your bank or any intermediary banks between Your bank and Apple’s bank.


 


3.6 In the event that any price payable by any end-user for any of the Licensed Applications is subject to (i) any withholding or similar tax; or (ii) any sales, use, goods and services, value added, or other tax or levy not collected by Apple under Section 3.2 hereof; or (iii) any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for Your account, and shall not reduce the commission to which Apple is entitled under this Schedule 2.







3.7 In the event that any remittance made by Apple to You is subject to any withholding or similar tax, the full amount of that withholding or similar tax shall be solely for Your account, and will not reduce the commission to which Apple is entitled on that transaction. If Apple reasonably believes that such tax is due, Apple will deduct the full amount of such withholding or similar tax from the gross amount owed to You, and will pay the full amount withheld over to the competent tax authorities.  Apple will apply a reduced rate of withholding tax, if any, provided for in any applicable income tax treaty only if You furnish Apple with such documentation required under that income tax treaty or otherwise satisfactory to Apple, sufficient to establish Your entitlement to the benefit of that reduced rate of withholding tax. Upon Your timely request to Apple in writing, using means reasonably designated by Apple, Apple will use commercially practical efforts to report to You the amount of Apple’s payment of withholding or similar taxes to the competent tax authorities on Your behalf.  You will indemnify and hold Apple harmless against any and all claims by any competent tax authority for any underpayment of any such withholding or similar taxes, and any penalties and/or interest thereon, including, but not limited to, underpayments attributable to any erroneous claim or representation by You as to Your entitlement to, or Your disqualification for, the benefit of a reduced rate of withholding tax.







4. Ownership and End-User Licensing







4.1 The parties acknowledge and agree that Apple shall not acquire any ownership interest in or to any of the Licensed Applications or Licensed Application Information, and title, risk of loss, responsibility for, and control over the Licensed Applications shall, at all times, remain with You.  Apple may not use any of the Licensed Applications or Licensed Application Information for any purpose, or in any manner, except as specifically authorized in this Schedule 2.


 


4.2 You may deliver to Apple Your own EULA for any Licensed Application at the time that You deliver that Licensed Application to Apple, in accordance with Section 2.1 of this Schedule 2; provided, however, that Your EULA must include and may not be inconsistent with the minimum terms and conditions specified on Exhibit E to this Schedule 2 and must comply with all applicable laws in all countries where You wish Apple to allow end-users to download that Licensed Application. Apple shall allow each end-user to which Apple allows access to any such Licensed Application to review Your EULA (if any) at the time that Apple delivers that Licensed Application to that end-user, and Apple shall notify each end-user that the end-user’s use of that Licensed Application is subject to the terms and conditions of Your EULA (if any). In the event that You do not furnish Your own EULA for any Licensed Application to Apple, You acknowledge and agree that each end-user’s use of that Licensed Application shall be subject to Apple’s standard EULA (which is part of the App Store Terms of Service).


 


4.3 You hereby acknowledge that the EULA for each of the Licensed Applications is solely between You and the end-user and conforms to applicable law, and Apple shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by You or any end-user of any of the terms and conditions of any EULA.


 


 




  





  











  






 


5. Content Restrictions and Software Rating


 


5.1 You represent and warrant that: (a) You have the right to enter into this Agreement, to reproduce and distribute each of the Licensed Applications, and to authorize Apple to permit end-users to download and use each of the Licensed Applications through one or more App Stores; (b) none of the Licensed Applications, or Apple’s or end-users’ permitted uses of those Licensed Applications, violate or infringe any patent, copyright, trademark, trade secret or other intellectual property or contractual rights of any other person, firm, corporation or other entity; (c) each of the Licensed Applications is authorized for distribution, sale and use in, export to, and import into each of the countries designated by You under Section 2.1 of this Schedule 2, in accordance with the laws and regulations of those countries and all applicable export/import regulations; (d) none of the Licensed Applications contains any obscene, offensive or other materials that are prohibited or restricted under the laws or regulations of any of the countries You designated under Section 2.1 of this Schedule 2; and (e) all information You provided using the iTunes Connect tool, including any information relating to the Licensed Applications, is accurate and that, if any such information ceases to be accurate, You will promptly update it to be accurate using the iTunes Connect tool.


 


5.2 You shall use the software rating tool set forth on iTunes Connect to supply information regarding each of the Licensed Applications delivered by You for marketing and fulfillment by Apple through the App Store under this Schedule 2 in order to assign a rating to each such Licensed Application. For purposes of assigning a rating to each of the Licensed Applications, You shall use Your best efforts to provide correct and complete information about the content of that Licensed Application with the software rating tool.  You acknowledge and agree that Apple is relying on:  (i) Your good faith and diligence in accurately and completely providing requested information for each Licensed Application; and (ii) Your representations and warranties in Section 5.1 hereof, in making that Licensed Application available for download by end-users in each of the countries You designated hereunder. Furthermore, You authorize Apple to correct the rating of any Licensed Application of Yours that has been assigned an incorrect rating; and You agree to any such corrected rating.







5.3 In the event that any country You designated hereunder requires the approval of, or rating of, any Licensed Application by any government or industry regulatory agency as a condition for the distribution, sale and/or use of that Licensed Application, You acknowledge and agree that Apple may elect not to make that Licensed Application available for download by end-users in that country from any App Store.







6. Responsibility and Liability







6.1 Apple shall have no responsibility for the installation and/or use of any of the Licensed Applications by any end-user. You shall be solely responsible for any and all product warranties, end-user assistance and product support with respect to each of the Licensed Applications.


 


6.2 You shall be solely responsible for, and Apple shall have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or attributable to, the Licensed Applications and/or the use of those Licensed Applications by any end-user, including, but not limited to: (i) claims of breach of warranty, whether specified in the EULA or established under applicable law; (ii) product liability claims; and (iii) claims that any of the Licensed Applications and/or the end-user’s possession or use of those Licensed Applications infringes the copyright or other intellectual property rights of any third party.


 


6.3 In the event that Apple receives any notice or claim from any end-user that: (i) the end-user wishes to cancel its license to any of the Licensed Applications within ninety (90) days of the date of download of that Licensed Application by that end-user; or (ii) a Licensed Application fails to conform to Your specifications or Your product warranty or the requirements of any applicable law, Apple may refund to the end-user the full amount of the price paid by the end-user for that Licensed Application. In the event that Apple refunds any such price to an end-user, You shall reimburse, or grant Apple a credit for, an amount equal to the price for that Licensed Application. Apple will have the right to retain its commission on the sale of that Licensed Application, notwithstanding the refund of the price to the end-user.


 


 




  





  











  






 


7. Termination


 


7.1 This Schedule 2, and all of Apple’s obligations hereunder, shall terminate upon the expiration or termination of the Agreement.  Notwithstanding any such termination, Apple shall be entitled to: (i) all commissions on all copies of the Licensed Applications downloaded by end-users prior to the date of termination (including the phase-out period set forth in Section 1.4 hereof); and (ii) reimbursement from You of refunds paid by Apple to end-users, whether before or after the date of termination, in accordance with Section 6.3 of this Schedule 2.


 


7.2 In the event that You no longer have the legal right to distribute the Licensed Applications, or to authorize Apple to allow access to those Licensed Applications by end-users, in accordance with this Schedule 2, You shall promptly withdraw those Licensed Applications from the App Store using the tools provided on the iTunes Connect site; provided, however, that such withdrawal by You under this Section


 


7.2 shall not relieve You of any of Your obligations to Apple under this Schedule 2, or any liability to Apple and/or any end-user with respect to those Licensed Applications.


 


7.3 Apple reserves the right to cease marketing and allowing download by end-users of the Licensed Applications at any time, with or without cause, by providing notice of termination to You. Without limiting the generality of this Section 7.3, You acknowledge that Apple may cease the marketing and allowing download by end-users of some or all of the Licensed Applications if Apple reasonably believes that: (i) those Licensed Applications are not authorized for export to one or more of the countries listed on Exhibit A, in accordance with the Export Administration Regulations; (ii) those Licensed Applications and/or any end-user’s possession and/or use of those Licensed Applications, infringe patent, copyright, trademark, trade secret or other intellectual property rights of any third party; or (iii) the distribution, sale and/or use of those Licensed Applications violates any applicable law in any country You designated under Section 2.1 of this Schedule 2. An election by Apple to cease the marketing and allowing download of any Licensed Applications, pursuant to this Section 7.3, shall not relieve You of Your obligations under this Schedule 2.







7.4 You may withdraw any or all of the Licensed Applications from the App Store, at any time, and for any reason, by using the tools provided on the iTunes Connect site.







8. Legal Consequences







The relationship between You and Apple established by this Schedule 2 may have important legal and/or tax consequences for You.  You acknowledge and agree that it is Your responsibility to consult with Your own legal and tax advisors with respect to Your legal and tax obligations hereunder.


 


 




  





  











  






 


EXHIBIT A


 


1. Apple as Agent


 


You appoint Apple Canada, Inc. (“Apple Canada”) as Your agent for the marketing and end-user download of the Licensed Applications by end-users located in the following country:


 


Canada


 


You appoint Apple Pty Limited (“APL”) as Your agent for the marketing and end-user download of the Licensed Applications by end-users located in the following countries:


 


Australia


New Zealand


 


You appoint Apple Inc. as Your agent pursuant to California Civil Code §§ 2295 et seq. for the marketing and end-user download of the Licensed Applications by end-users located in the following countries:


 



	
Argentina

	
Dominican Republic

	
Jamaica

	
Peru


	
Brazil

	
Ecuador

	
Mexico

	
Uruguay


	
Chile

	
El Salvador

	
Nicaragua

	
Venezuela


	
Colombia

	
Guatemala

	
Panama

	
United States


	
Costa Rica

	
Honduras

	
Paraguay

	  










You appoint iTunes KK as Your agent pursuant to Article 643 of the Japanese Civil Code for the marketing and end-user download of the Licensed Applications by end-users located in the following country:


 


Japan


 


2. Apple as Commissionaire


 


You appoint iTunes Sarl as Your commissionaire pursuant to Article 91 of the Luxembourg Code de commerce for the marketing and end-user download of the Licensed Applications by end-users located in the following countries:


 



	
Austria

	
India

	
Mali

	
Senegal


	
Armenia

	
Indonesia

	
Malaysia

	
Slovakia


	
Belgium

	
Ireland

	
Malta, Republic of

	
Slovenia


	
Botswana

	
Israel

	
Mauritius

	
South Africa


	
Bulgaria

	
Italy

	
Moldova

	
Spain


	
China

	
Jordan

	
Niger

	
Sri Lanka


	
Croatia

	
Kazakhstan

	
Netherlands

	
Sweden


	
Czech Republic

	
Kenya

	
Norway

	
Switzerland


	
Denmark

	
Korea

	
Pakistan

	
Taiwan


	
Egypt

	
Kuwait

	
Philippines

	
Thailand


	
Estonia

	
Latvia

	
Poland

	
Tunisia


	
Finland

	
Lebanon

	
Portugal

	
Turkey


	
France

	
Lithuania

	
Qatar

	
UAE


	
Germany

	
Luxembourg

	
Romania

	
Uganda


	
Greece

	
Macau

	
Russia

	
United Kingdom


	
Hong Kong

	
Macedonia

	
Saudi Arabia

	
Vietnam


	
Hungary

	
Madagascar

	
Singapore

	  





 


 




  





  











  











 


EXHIBIT B


 







1. Apple shall collect and remit to the competent tax authorities the taxes described in Section 3.2 of this Schedule 2 for sales of the Licensed Applications to end-users located in the following countries:


 



	
Australia

	
Finland

	
Lithuania

	
Slovenia


	
Austria

	
France

	
Luxembourg

	
Spain


	
Belgium

	
Germany

	
Malta, Republic of

	
Sweden


	
Bulgaria

	
Greece

	
Netherlands

	
Switzerland


	
Canada

	
Hungary

	
Poland

	
United Kingdom


	
Czech Republic

	
Ireland

	
Portugal

	
United States


	
Denmark

	
Italy

	
Romania

	  
	
Estonia

	
Latvia

	
Slovakia

	  





 


2. Apple shall not collect and remit the taxes described in Section 3.2 of this Schedule 2 for sales of the Licensed Applications to end-users located in the countries listed below. You shall be solely responsible for the collection and remittance of such taxes as may be required by local law. 



	
Argentina

	
Hong Kong

	
Malaysia

	
Russia


	
Armenia

	
India

	
Mali

	
Saudi Arabia


	
Botswana

	
Indonesia

	
Mauritius

	
Senegal


	
Brazil

	
Israel

	
Mexico

	
Singapore


	
Chile

	
Jamaica

	
Moldova

	
South Africa


	
China

	
Japan

	
New Zealand

	
Sri Lanka


	
Colombia

	
Jordan

	
Nicaragua

	
Taiwan


	
Costa Rica

	
Kazakhstan

	
Niger

	
Thailand


	
Croatia

	
Kenya

	
Norway

	
Tunisia


	
Dominican Republic

	
Korea

	
Pakistan

	
Turkey


	
Ecuador

	
Kuwait

	
Panama

	
UAE


	
El Salvador

	
Lebanon

	
Paraguay

	
Uganda


	
Egypt

	
Macau

	
Peru

	
Uruguay


	
Guatemala

	
Macedonia

	
Philippines

	
Venezuela


	
Honduras

	
Madagascar

	
Qatar

	
Vietnam







 


 




  





  











  











 


EXHIBIT C


 


 



	
Tier

	
Customer Price USD

	
Customer Price MXP

	
Proceeds, Net of Commission USD

	
Customer Price CAD

	
Proceeds, Net of Commission CAD

	
Customer Price AUD

	
Customer Price NZD

	
Proceeds, Net of Commission AUD

	
Customer Price JPY

	
Proceeds, Net of Commission JPY


	
0

	
0.00

	
0

	
0.00

	
0.00

	
0.00

	
0.00

	
0.00

	
0.00

	
0

	
0


	
1

	
0.99

	
10

	
0.70

	
0.99

	
0.70

	
1.19

	
1.29

	
0.76

	
115

	
81


	
2

	
1.99

	
20

	
1.40

	
1.99

	
1.40

	
2.49

	
2.59

	
1.58

	
230

	
161


	
3

	
2.99

	
30

	
2.10

	
2.99

	
2.10

	
3.99

	
4.19

	
2.54

	
350

	
245


	
4

	
3.99

	
40

	
2.80

	
3.99

	
2.80

	
4.99

	
5.29

	
3.18

	
450

	
315


	
5

	
4.99

	
50

	
3.50

	
4.99

	
3.50

	
5.99

	
6.49

	
3.81

	
600

	
420


	
6

	
5.99

	
60

	
4.20

	
5.99

	
4.20

	
7.99

	
8.29

	
5.08

	
700

	
490


	
7

	
6.99

	
70

	
4.90

	
6.99

	
4.90

	
8.99

	
9.99

	
5.72

	
800

	
560


	
8

	
7.99

	
80

	
5.60

	
7.99

	
5.60

	
9.99

	
10.99

	
6.36

	
900

	
630


	
9

	
8.99

	
90

	
6.30

	
8.99

	
6.30

	
11.99

	
12.99

	
7.63

	
1000

	
700


	
10

	
9.99

	
100

	
7.00

	
9.99

	
7.00

	
12.99

	
13.99

	
8.27

	
1200

	
840


	
11

	
10.99

	
120

	
7.70

	
10.99

	
7.70

	
13.99

	
14.99

	
8.90

	
1300

	
910


	
12

	
11.99

	
130

	
8.40

	
11.99

	
8.40

	
14.99

	
15.99

	
9.54

	
1400

	
980


	
13

	
12.99

	
140

	
9.10

	
12.99

	
9.10

	
15.99

	
16.99

	
10.18

	
1500

	
1050


	
14

	
13.99

	
150

	
9.80

	
13.99

	
9.80

	
16.99

	
17.99

	
10.81

	
1600

	
1120


	
15

	
14.99

	
160

	
10.50

	
14.99

	
10.50

	
17.99

	
18.99

	
11.45

	
1700

	
1190


	
16

	
15.99

	
170

	
11.20

	
15.99

	
11.20

	
18.99

	
19.99

	
12.08

	
1800

	
1260


	
17

	
16.99

	
180

	
11.90

	
16.99

	
11.90

	
19.99

	
20.99

	
12.72

	
2000

	
1400


	
18

	
17.99

	
190

	
12.60

	
17.99

	
12.60

	
21.99

	
22.99

	
13.99

	
2100

	
1470


	
19

	
18.99

	
200

	
13.30

	
18.99

	
13.30

	
22.99

	
23.99

	
14.63

	
2200

	
1540


	
20

	
19.99

	
210

	
14.00

	
19.99

	
14.00

	
23.99

	
24.99

	
15.27

	
2300

	
1610


	
21

	
20.99

	
220

	
14.70

	
20.99

	
14.70

	
24.99

	
25.99

	
15.90

	
2400

	
1680


	
22

	
21.99

	
230

	
15.40

	
21.99

	
15.40

	
26.99

	
27.99

	
17.18

	
2500

	
1750


	
23

	
22.99

	
240

	
16.10

	
22.99

	
16.10

	
27.99

	
28.99

	
17.81

	
2600

	
1820


	
24

	
23.99

	
250

	
16.80

	
23.99

	
16.80

	
28.99

	
29.99

	
18.45

	
2800

	
1960


	
25

	
24.99

	
260

	
17.50

	
24.99

	
17.50

	
29.99

	
30.99

	
19.08

	
2900

	
2030


	
26

	
25.99

	
270

	
18.20

	
25.99

	
18.20

	
31.99

	
32.99

	
20.36

	
3000

	
2100


	
27

	
26.99

	
280

	
18.90

	
26.99

	
18.90

	
32.99

	
34.99

	
20.99

	
3100

	
2170


	
28

	
27.99

	
290

	
19.60

	
27.99

	
19.60

	
33.99

	
35.99

	
21.63

	
3200

	
2240


	
29

	
28.99

	
300

	
20.30

	
28.99

	
20.30

	
34.99

	
36.99

	
22.27

	
3300

	
2310


	
30

	
29.99

	
320

	
21.00

	
29.99

	
21.00

	
36.99

	
38.99

	
23.54

	
3500

	
2450


	
31

	
30.99

	
330

	
21.70

	
30.99

	
21.70

	
37.99

	
39.99

	
24.18

	
3600

	
2520


	
32

	
31.99

	
340

	
22.40

	
31.99

	
22.40

	
38.99

	
40.99

	
24.81

	
3700

	
2590


	
33

	
32.99

	
350

	
23.10

	
32.99

	
23.10

	
39.99

	
41.99

	
25.45

	
3800

	
2660


	
34

	
33.99

	
360

	
23.80

	
33.99

	
23.80

	
41.99

	
43.99

	
26.72

	
3900

	
2730


	
35

	
34.99

	
370

	
24.50

	
34.99

	
24.50

	
42.99

	
44.99

	
27.36

	
4000

	
2800


	
36

	
35.99

	
380

	
25.20

	
35.99

	
25.20

	
43.99

	
45.99

	
27.99

	
4100

	
2870


	
37

	
36.99

	
390

	
25.90

	
36.99

	
25.90

	
44.99

	
46.99

	
28.63

	
4300

	
3010


	
38

	
37.99

	
400

	
26.60

	
37.99

	
26.60

	
45.99

	
47.99

	
29.27

	
4400

	
3080


	
39

	
38.99

	
410

	
27.30

	
38.99

	
27.30

	
46.99

	
48.99

	
29.90

	
4500

	
3150







 


 




  





  











  




 


continued...


 



	
Tier

	
Customer Price USD

	
Customer Price MXP

	
Proceeds, Net of Commission USD

	
Customer Price CAD

	
Proceeds, Net of Commission CAD

	
Customer Price AUD

	
Customer Price NZD

	
Proceeds, Net of Commission AUD

	
Customer Price JPY

	
Proceeds, Net of Commission JPY










	
40

	
39.99

	
420

	
28.00

	
39.99

	
28.00

	
47.99

	
49.99

	
30.54

	
4600

	
3220


	
41

	
40.99

	
430

	
28.70

	
40.99

	
28.70

	
48.99

	
50.99

	
31.18

	
4700

	
3290


	
42

	
41.99

	
440

	
29.40

	
41.99

	
29.40

	
49.99

	
51.99

	
31.81

	
4800

	
3360


	
43

	
42.99

	
450

	
30.10

	
42.99

	
30.10

	
51.99

	
53.99

	
33.08

	
4900

	
3430


	
44

	
43.99

	
460

	
30.80

	
43.99

	
30.80

	
52.99

	
54.99

	
33.72

	
5000

	
3500


	
45

	
44.99

	
470

	
31.50

	
44.99

	
31.50

	
53.99

	
55.99

	
34.36

	
5200

	
3640


	
46

	
45.99

	
480

	
32.20

	
45.99

	
32.20

	
54.99

	
56.99

	
34.99

	
5300

	
3710


	
47

	
46.99

	
490

	
32.90

	
46.99

	
32.90

	
56.99

	
58.99

	
36.27

	
5400

	
3780


	
48

	
47.99

	
500

	
33.60

	
47.99

	
33.60

	
57.99

	
59.99

	
36.90

	
5500

	
3850


	
49

	
48.99

	
520

	
34.30

	
48.99

	
34.30

	
58.99

	
60.99

	
37.54

	
5600

	
3920


	
50

	
49.99

	
530

	
35.00

	
49.99

	
35.00

	
59.99

	
64.99

	
38.18

	
5800

	
4060


	
51

	
54.99

	
580

	
38.50

	
54.99

	
38.50

	
69.99

	
74.99

	
44.54

	
6000

	
4200


	
52

	
59.99

	
630

	
42.00

	
59.99

	
42.00

	
74.99

	
79.99

	
47.72

	
7000

	
4900


	
53

	
64.99

	
680

	
45.50

	
64.99

	
45.50

	
79.99

	
84.99

	
50.90

	
7500

	
5250


	
54

	
69.99

	
740

	
49.00

	
69.99

	
49.00

	
89.99

	
94.99

	
57.27

	
8000

	
5600


	
55

	
74.99

	
790

	
52.50

	
74.99

	
52.50

	
94.99

	
99.99

	
60.45

	
8500

	
5950


	
56

	
79.99

	
840

	
56.00

	
79.99

	
56.00

	
99.99

	
104.99

	
63.63

	
9000

	
6300


	
57

	
84.99

	
900

	
59.50

	
84.99

	
59.50

	
104.99

	
109.99

	
66.81

	
10000

	
7000


	
58

	
89.99

	
950

	
63.00

	
89.99

	
63.00

	
109.99

	
114.99

	
69.99

	
10500

	
7350


	
59

	
94.99

	
1000

	
66.50

	
94.99

	
66.50

	
114.99

	
119.99

	
73.18

	
11000

	
7700


	
60

	
99.99

	
1050

	
70.00

	
99.99

	
70.00

	
119.99

	
124.99

	
76.36

	
11500

	
8050


	
61

	
109.99

	
1200

	
77.00

	
109.99

	
77.00

	
139.99

	
149.99

	
89.08

	
13000

	
9100


	
62

	
119.99

	
1300

	
84.00

	
119.99

	
84.00

	
149.99

	
159.99

	
95.45

	
14000

	
9800


	
63

	
129.99

	
1400

	
91.00

	
129.99

	
91.00

	
159.99

	
169.99

	
101.81

	
15000

	
10500


	
64

	
139.99

	
1500

	
98.00

	
139.99

	
98.00

	
169.99

	
179.99

	
108.18

	
16000

	
11200


	
65

	
149.99

	
1600

	
105.00

	
149.99

	
105.00

	
189.99

	
199.99

	
120.90

	
18000

	
12600


	
66

	
159.99

	
1700

	
112.00

	
159.99

	
112.00

	
199.99

	
209.99

	
127.27

	
19000

	
13300


	
67

	
169.99

	
1800

	
119.00

	
169.99

	
119.00

	
219.99

	
229.99

	
139.99

	
20000

	
14000


	
68

	
179.99

	
1900

	
126.00

	
179.99

	
126.00

	
229.99

	
239.99

	
146.36

	
21000

	
14700


	
69

	
189.99

	
2000

	
133.00

	
189.99

	
133.00

	
239.99

	
249.99

	
152.72

	
22000

	
15400


	
70

	
199.99

	
2100

	
140.00

	
199.99

	
140.00

	
249.99

	
259.99

	
159.08

	
23000

	
16100


	
71

	
209.99

	
2200

	
147.00

	
209.99

	
147.00

	
259.99

	
269.99

	
165.45

	
24000

	
16800


	
72

	
219.99

	
2300

	
154.00

	
219.99

	
154.00

	
269.99

	
279.99

	
171.81

	
25000

	
17500


	
73

	
229.99

	
2400

	
161.00

	
229.99

	
161.00

	
279.99

	
289.99

	
178.18

	
26000

	
18200


	
74

	
239.99

	
2500

	
168.00

	
239.99

	
168.00

	
289.99

	
299.99

	
184.54

	
27000

	
18900


	
75

	
249.99

	
2600

	
175.00

	
249.99

	
175.00

	
299.99

	
319.99

	
190.90

	
29000

	
20300


	
76

	
299.99

	
3200

	
210.00

	
299.99

	
210.00

	
349.99

	
399.99

	
222.72

	
35000

	
24500


	
77

	
349.99

	
3700

	
245.00

	
349.99

	
245.00

	
399.99

	
449.99

	
254.54

	
40000

	
28000


	
78

	
399.99

	
4200

	
280.00

	
399.99

	
280.00

	
449.99

	
499.99

	
286.36

	
45000

	
31500


	
79

	
449.99

	
4700

	
315.00

	
449.99

	
315.00

	
499.99

	
549.99

	
318.18

	
50000

	
35000


	
80

	
499.99

	
5300

	
350.00

	
499.99

	
350.00

	
599.99

	
649.99

	
381.81

	
58000

	
40600


	
81

	
599.99

	
6300

	
420.00

	
599.99

	
420.00

	
699.99

	
749.99

	
445.45

	
70000

	
49000


	
82

	
699.99

	
7400

	
490.00

	
699.99

	
490.00

	
799.99

	
849.99

	
509.08

	
80000

	
56000


	
83

	
799.99

	
8500

	
560.00

	
799.99

	
560.00

	
899.99

	
949.99

	
572.72

	
90000

	
63000


	
84

	
899.99

	
9500

	
630.00

	
899.99

	
630.00

	
999.99

	
1049.99

	
636.36

	
100000

	
70000


	
85

	
999.99

	
10500

	
700.00

	
999.99

	
700.00

	
1199.99

	
1249.99

	
763.63

	
115000

	
80500







 


 




  





  











  











 



	
Tier

	
Customer Price Euro

	
Customer Price DKK

	
Customer Price NOK

	
Customer Price SEK

	
Customer Price CHF

	
Proceeds, Net of Commission Euro

	
Customer Price GBP

	
Proceeds, Net of Commission GBP


	
0

	
0.00

	
0

	
0

	
0

	
0.00

	
0.00

	
0.00

	
0.00


	
1

	
0.79

	
6

	
6

	
7

	
1.10

	
0.48

	
0.59

	
0.36


	
2

	
1.59

	
12

	
11

	
15

	
2.20

	
0.97

	
1.19

	
0.72


	
3

	
2.39

	
18

	
17

	
22

	
3.30

	
1.45

	
1.79

	
1.09


	
4

	
2.99

	
24

	
21

	
28

	
4.40

	
1.82

	
2.39

	
1.45


	
5

	
3.99

	
30

	
29

	
38

	
5.50

	
2.43

	
2.99

	
1.82


	
6

	
4.99

	
36

	
35

	
45

	
6.60

	
3.04

	
3.49

	
2.12


	
7

	
5.49

	
42

	
39

	
49

	
7.70

	
3.34

	
3.99

	
2.43


	
8

	
5.99

	
48

	
45

	
55

	
8.80

	
3.65

	
4.99

	
3.04


	
9

	
6.99

	
54

	
49

	
65

	
9.90

	
4.25

	
5.49

	
3.34


	
10

	
7.99

	
59

	
55

	
75

	
11.00

	
4.86

	
5.99

	
3.65


	
11

	
8.99

	
69

	
59

	
85

	
12.50

	
5.47

	
6.49

	
3.95


	
12

	
9.99

	
75

	
65

	
95

	
14.00

	
6.08

	
6.99

	
4.25


	
13

	
10.49

	
79

	
69

	
99

	
15.00

	
6.39

	
7.49

	
4.56


	
14

	
10.99

	
85

	
75

	
105

	
16.00

	
6.69

	
7.99

	
4.86


	
15

	
11.99

	
89

	
85

	
109

	
17.00

	
7.30

	
8.99

	
5.47


	
16

	
12.99

	
99

	
89

	
119

	
18.00

	
7.91

	
9.49

	
5.78


	
17

	
13.99

	
105

	
95

	
129

	
19.00

	
8.52

	
9.99

	
6.08


	
18

	
14.49

	
109

	
99

	
135

	
20.00

	
8.82

	
10.99

	
6.69


	
19

	
14.99

	
115

	
105

	
139

	
21.00

	
9.12

	
11.49

	
6.99


	
20

	
15.99

	
119

	
109

	
149

	
22.00

	
9.73

	
11.99

	
7.30


	
21

	
16.99

	
125

	
119

	
159

	
24.00

	
10.34

	
12.49

	
7.60


	
22

	
17.99

	
129

	
125

	
169

	
25.00

	
10.95

	
12.99

	
7.91


	
23

	
18.49

	
135

	
129

	
175

	
26.00

	
11.25

	
13.99

	
8.52


	
24

	
18.99

	
139

	
135

	
179

	
27.00

	
11.56

	
14.49

	
8.82


	
25

	
19.99

	
149

	
139

	
189

	
28.00

	
12.17

	
14.99

	
9.12


	
26

	
20.99

	
155

	
145

	
195

	
29.00

	
12.78

	
15.49

	
9.43


	
27

	
21.49

	
159

	
149

	
199

	
30.00

	
13.08

	
15.99

	
9.73


	
28

	
21.99

	
165

	
155

	
209

	
31.00

	
13.39

	
16.99

	
10.34


	
29

	
22.99

	
169

	
159

	
219

	
32.00

	
13.99

	
17.49

	
10.65


	
30

	
23.99

	
179

	
165

	
229

	
33.00

	
14.60

	
17.99

	
10.95


	
31

	
24.99

	
185

	
169

	
235

	
34.00

	
15.21

	
18.49

	
11.25


	
32

	
25.49

	
189

	
175

	
239

	
35.00

	
15.52

	
18.99

	
11.56


	
33

	
25.99

	
195

	
179

	
245

	
36.00

	
15.82

	
19.99

	
12.17


	
34

	
26.99

	
199

	
189

	
249

	
37.00

	
16.43

	
20.49

	
12.47


	
35

	
27.99

	
209

	
195

	
265

	
38.00

	
17.04

	
20.99

	
12.78


	
36

	
28.99

	
215

	
199

	
269

	
39.00

	
17.65

	
21.49

	
13.08


	
37

	
29.49

	
219

	
205

	
275

	
40.00

	
17.95

	
21.99

	
13.39


	
38

	
29.99

	
225

	
209

	
285

	
41.00

	
18.25

	
22.99

	
13.99


	
39

	
30.99

	
229

	
215

	
289

	
43.00

	
18.86

	
23.49

	
14.30







 


 




  





  











  




 


continued...


 





	
Tier

	
Customer Price Euro

	
Customer Price DKK

	
Customer Price NOK

	
Customer Price SEK

	
Customer Price CHF

	
Proceeds, Net of Commission Euro

	
Customer Price GBP

	
Proceeds, Net of Commission GBP








	
40

	
31.99

	
239

	
219

	
299

	
44.00

	
19.47

	
23.99

	
14.60


	
41

	
32.99

	
245

	
225

	
309

	
45.00

	
20.08

	
24.49

	
14.91


	
42

	
33.49

	
249

	
229

	
315

	
46.00

	
20.39

	
24.99

	
15.21


	
43

	
33.99

	
255

	
235

	
319

	
47.00

	
20.69

	
25.99

	
15.82


	
44

	
34.99

	
259

	
239

	
329

	
48.00

	
21.30

	
26.49

	
16.12


	
45

	
35.99

	
269

	
249

	
339

	
49.00

	
21.91

	
26.99

	
16.43


	
46

	
36.99

	
275

	
255

	
345

	
51.00

	
22.52

	
27.49

	
16.73


	
47

	
37.49

	
279

	
259

	
349

	
52.00

	
22.82

	
27.99

	
17.04


	
48

	
37.99

	
285

	
265

	
359

	
53.00

	
23.12

	
28.99

	
17.65


	
49

	
38.99

	
289

	
269

	
369

	
54.00

	
23.73

	
29.49

	
17.95


	
50

	
39.99

	
299

	
279

	
379

	
55.00

	
24.34

	
29.99

	
18.25


	
51

	
42.99

	
319

	
299

	
399

	
59.00

	
26.17

	
32.99

	
20.08


	
52

	
44.99

	
339

	
319

	
419

	
62.00

	
27.39

	
34.99

	
21.30


	
53

	
49.99

	
369

	
349

	
469

	
69.00

	
30.43

	
37.99

	
23.12


	
54

	
54.99

	
399

	
379

	
519

	
76.00

	
33.47

	
39.99

	
24.34


	
55

	
59.99

	
439

	
419

	
569

	
79.00

	
36.52

	
42.99

	
26.17


	
56

	
62.99

	
469

	
439

	
599

	
85.00

	
38.34

	
44.99

	
27.39


	
57

	
64.99

	
499

	
459

	
619

	
89.00

	
39.56

	
49.99

	
30.43


	
58

	
69.99

	
529

	
489

	
659

	
99.00

	
42.60

	
52.99

	
32.25


	
59

	
74.99

	
559

	
519

	
699

	
105.00

	
45.65

	
54.99

	
33.47


	
60

	
79.99

	
599

	
549

	
749

	
109.00

	
48.69

	
59.99

	
36.52


	
61

	
84.99

	
629

	
599

	
799

	
119.00

	
51.73

	
64.99

	
39.56


	
62

	
89.99

	
669

	
619

	
849

	
129.00

	
54.78

	
69.99

	
42.60


	
63

	
94.99

	
699

	
659

	
899

	
139.00

	
57.82

	
74.99

	
45.65


	
64

	
99.99

	
749

	
699

	
949

	
149.00

	
60.86

	
79.99

	
48.69


	
65

	
109.99

	
819

	
769

	
999

	
159.00

	
66.95

	
84.99

	
51.73


	
66

	
119.99

	
899

	
839

	
1099

	
169.00

	
73.04

	
89.99

	
54.78


	
67

	
124.99

	
929

	
869

	
1179

	
179.00

	
76.08

	
94.99

	
57.82


	
68

	
129.99

	
969

	
899

	
1239

	
189.00

	
79.12

	
99.99

	
60.86


	
69

	
139.99

	
1039

	
999

	
1319

	
199.00

	
85.21

	
109.99

	
66.95


	
70

	
149.99

	
1119

	
1049

	
1399

	
209.00

	
91.30

	
114.99

	
69.99


	
71

	
159.99

	
1199

	
1099

	
1499

	
219.00

	
97.39

	
119.99

	
73.04


	
72

	
169.99

	
1269

	
1199

	
1599

	
229.00

	
103.47

	
124.99

	
76.08


	
73

	
179.99

	
1349

	
1249

	
1699

	
249.00

	
109.56

	
129.99

	
79.12


	
74

	
189.99

	
1399

	
1299

	
1799

	
259.00

	
115.65

	
139.99

	
85.21


	
75

	
199.99

	
1499

	
1399

	
1899

	
279.00

	
121.73

	
149.99

	
91.30


	
76

	
239.99

	
1799

	
1699

	
2299

	
329.00

	
146.08

	
179.99

	
109.56


	
77

	
279.99

	
1999

	
1999

	
2599

	
389.00

	
170.43

	
199.99

	
121.73


	
78

	
319.99

	
2399

	
2299

	
2999

	
449.00

	
194.78

	
239.99

	
146.08


	
79

	
359.99

	
2699

	
2499

	
3399

	
499.00

	
219.12

	
279.99

	
170.43


	
80

	
399.99

	
2999

	
2799

	
3799

	
549.00

	
243.47

	
299.99

	
182.60


	
81

	
479.99

	
3499

	
3299

	
4499

	
669.00

	
292.17

	
349.99

	
213.04


	
82

	
559.99

	
3999

	
3899

	
5299

	
779.00

	
340.86

	
399.99

	
243.47


	
83

	
639.99

	
4799

	
4399

	
5999

	
899.00

	
389.56

	
449.99

	
273.91


	
84

	
719.99

	
5499

	
4999

	
6799

	
999.00

	
438.25

	
499.99

	
304.34


	
85

	
799.99

	
5999

	
5499

	
7499

	
1099.00

	
486.95

	
599.99

	
365.21





 



Customer Price is the price displayed to the end-user on the App Store. The agreed remittance currencies are USD, CAD, AUD, JPY, Euro and GBP, depending on the currency of the Customer Price, as indicated in this Exhibit C. Customers are charged the following currencies in the following countries:


USD:  Argentina, Armenia, Botswana, Brazil, Chile, China, Colombia, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Egypt, Guatemala, Honduras, Hong Kong, India, Indonesia, Israel, Jamaica, Jordan, Kazakhstan, Kenya, Korea, Kuwait, Lebanon, Macau, Macedonia, Madagascar, Malaysia, Mali, Mauritius, Moldova, Nicaragua, Niger, Pakistan, Panama, Paraguay, Peru, Philippines, Qatar, Russia, Saudi Arabia, Senegal, Singapore, South Africa, Sri Lanka, Taiwan, Thailand, Tunisia, Turkey, UAE, Uganda, Uruguay, United States, Venezuela, Vietnam


MXP:  Mexico


CAD:  Canada


AUD:  Australia


NZD:  New Zealand


JPY:  Japan


Euro:  Austria, Belgium, Bulgaria, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta (Republic of), Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain


DKK:  Denmark


NOK:  Norway


SEK:  Sweden


CHF:  Switzerland


GBP:  United Kingdom







 




 




  





  











  











 


EXHIBIT D


 


1. Delivery of Licensed Applications to end-users in Canada


 


Where You designate Apple Canada to allow access to the Licensed Applications to end-users in Canada:


 


1.1 General


 


You shall indemnify and hold Apple harmless against any and all claims by the Canada Revenue Agency (the “CRA”), Ministere du Revenu du Quebec (the “MRQ”) and the tax authorities of any province that has a provincial retail sales tax (“PST”) for any failure to pay, collect or remit any amount(s) of goods and services tax/harmonized sales tax (“GST/HST”) imposed under the Excise Tax Act (Canada) (The “ETA”), Quebec Sales Tax (“QST”) or PST and any penalties and/or interest thereon in connection with any supplies made by Apple Canada to end-users in Canada on Your behalf and any supplies made by Apple Canada to You.


 


1.2 GST/HST







(a) This Section 1.2 of Exhibit D applies with respect to supplies made by You, through Apple Canada, as agent to end-users in Canada. Terms defined in the ETA have the same meaning when used in this Section 1.2. Apple Canada is registered for GST/HST purposes, with GST/HST Registration No. R100236199.







(b) If You are a resident of Canada or are a non-resident of Canada that is required to register for GST/HST purposes pursuant to the ETA, it is a condition of this Schedule 2, that You are registered for GST/HST or have submitted an application to register for GST/HST to the CRA with an effective GST/HST registration date of no later than the date of this Schedule 2. You shall provide Apple Canada with satisfactory evidence of Your GST/HST registration (e.g., a copy of Your CRA confirmation letter or print-out from the GST/HST Registry on the CRA web site) at Apple Canada’s request. You warrant that You will notify Apple Canada if You cease to be registered for GST/HST.







(c) If You are registered for GST/HST purposes, You, by executing this Schedule 2, (i) agree to enter into the election pursuant to subsection 177(1.1) of the ETA to have Apple Canada collect, account for and remit GST/HST on sales of Licensed Applications made to end-users in Canada on Your behalf and have completed (including entering its valid GST/HST registration number), signed and returned to Apple Canada Form GST506 (accessible on the iTunes Connect site); and (ii) acknowledge that the commission payable by You to Apple Canada includes GST at a rate of 5% (or the GST rate as applicable from time to time).







(d) If You are not registered for GST/HST purposes, by executing this Schedule 2 and not completing, signing and returning Form GST506 to Apple Canada, You (i) certify that You are not registered for GST/HST purposes; (ii) certify that You are not resident in Canada and do not carry on business in Canada for purposes of the ETA; (iii) acknowledge that Apple Canada will charge, collect and remit GST/HST on sales of Licensed Applications to end-users in Canada made on Your behalf; (iii) acknowledge that the commission payable by You to Apple Canada is zero-rated for GST/HST purposes (i.e., GST/HST rate is 0%); and (iv) agree to indemnify Apple for any GST/HST, interest and penalty assessed against Apple Canada if it is determined that You should have been registered for GST/HST purposes such that the commission fees charged by Apple Canada were subject to GST.


 


 




  





  











  











1.3 Quebec Sales Tax


Terms defined in an Act respecting the Quebec Sales Tax (the “QSTA”) have the same meaning when used in this Section 1.3 of Exhibit D.


 


(a) If You are a resident of Quebec, it is a condition of this Schedule 2, that You are registered for QST or have submitted an application to register for QST to the MRQ with an effective QST registration date of no later than the date of this Schedule 2. You shall provide Apple Canada with satisfactory evidence of Your QST registration (e.g., a copy of Your MRQ confirmation letter or print-out from the QST Registry on the MRQ web site) at Apple Canada’s request. You warrant that You will notify Apple Canada if You cease to be registered for QST.







(b) If You are a resident of Quebec, You, by executing this Schedule 2, (i) certify that You are registered for QST; (ii) agree to enter into the election pursuant to section 41.0.1 of the QSTA to have Apple Canada collect, account for and remit QST on sales of Licensed Applications to end-users in Quebec made on Your behalf and have completed (including entering its valid QST registration number), signed and returned to Apple Canada Form FP2506-V; and (iii) acknowledge that Apple Canada will not charge, collect or remit QST on sales of Licensed Applications made on Your behalf to end-users located outside Quebec on the assumption that the end-users are not resident in Quebec and not registered for QST purposes such that the sales are zero-rated for QST purposes.







(c) If You are not resident in Quebec, by executing this Schedule 2 and not completing, signing and returning Form FP2506-V to Apple Canada, You (i) certify that You are not resident in Quebec; (ii) certify that You do not have a permanent establishment in Quebec; and (iii) acknowledge Apple will charge, collect and remit QST on sales of Licensed Applications to end-users in Quebec made on Your behalf.







1.4 PST


 


This Section 1.4 of Exhibit D applies to supplies of Licensed Applications made by You, through Apple Canada, as agent, to end-users in the provinces of British Columbia, Saskatchewan, Manitoba, Ontario, Prince Edward Island and any other province that has or that adopts a PST. You acknowledge and agree that Apple Canada will charge, collect and remit applicable PST on sales of Licensed Applications made to end-users in these provinces by Apple Canada on Your behalf.


 


2. Delivery of Licensed Applications to end-users in Australia


 


Where You designate APL to allow access to the Licensed Applications to end-users in Australia:


 


2.1 You shall indemnify and hold Apple harmless against any and all claims by the Commissioner of Taxation (“Commissioner”) for nonpayment or underpayment of GST under the A New Tax System (Goods and Services Tax) Act 1999 (“GST Act”) and for any penalties and/ or interest thereon.  In addition, You shall indemnify and hold Apple harmless against any penalties imposed by the Commissioner for failing to register for GST in Australia.


 


2.2 Goods and Services Tax (GST)







(a) General







(i) This Section 2.2 of Exhibit D applies to supplies made by You, through APL, as agent, that are connected with Australia.  Terms defined in the GST Act have the same meaning when used in this Section 2.2.







(ii) Unless expressly stated otherwise, any sum payable or amount used in the calculation of a sum payable under this Schedule 2 has been determined without regard to GST and must be increased on account of any GST payable under this Section 2.2.







(iii) If any GST is payable on any taxable supply made under this Schedule 2 by a supplier to a recipient, the recipient must pay the GST to the supplier at the same time and in the same manner as providing any monetary consideration. For the avoidance of doubt, this includes any monetary consideration that is deducted by APL as commission in accordance with Section 3.4 of this Schedule 2.


 


(iv) The amount recoverable on account of GST under this clause by APL will include any fines, penalties, interest and other charges.







(v) This Section 2 of Exhibit D survives the termination of the Agreement.


 


 




  





  











  











(b) Resident Developers or Non-resident GST-Registered Developers







(i) If You are a resident of Australia, it is a condition of this Schedule 2, that You have an Australian Business Number (“ABN”) and are registered for GST or have submitted an application to register for GST to the Commissioner with an effective GST registration date of no later than the date of this Schedule 2. You will provide Apple with satisfactory evidence of Your ABN and GST registration (by uploading to Apple, using the iTunes Connect site, a copy of Your GST registration or print-out from the Australian Business Register) within 30 days of this Schedule 2. You warrant that You will notify Apple if it ceases to hold a valid ABN or be registered for GST.







(ii) If You are a non-resident and are registered for GST, it is a condition of this Schedule 2 that You will provide Apple with satisfactory evidence of Your ABN and GST registration within 30 days of this Schedule 2.  You warrant that You will notify Apple if You cease to be registered for GST.







(iii) You and Apple agree to enter into an arrangement for the purposes of s.153-50 of the GST Act. You and Apple further agree that for taxable supplies made by You, through APL as agent, to any end-user:







(A) APL will be deemed as making supplies to any end-user;







(B) You will be deemed as making separate, corresponding supplies to APL;


 


(C) APL will issue to any end-user, in APL’s own name, all tax invoices and adjustment notes relating to supplies made under paragraph (iii)(a);







(D) You will not issue to any end-user any tax invoices or adjustment notes relating to taxable supplies made under paragraph (iii)(a);







(E) APL will issue a recipient created tax invoice to You in respect of any taxable supplies made by You to APL under this Schedule 2, including taxable supplies made under paragraph (iii)(b); and







(F) You will not issue a tax invoice to Apple in respect of any taxable supplies made by You to Apple under this Schedule 2, including taxable supplies made under paragraph (iii)(b).







(c) Non-resident, Non-GST-registered Developers







If You are a non-resident and are not registered for GST, then:







(i) APL will issue to any end-user, in APL’s own name, all tax invoices and adjustment notes relating to taxable supplies made by You through APL as agent; and







(ii) You will not issue to any end-user any tax invoices or adjustment notes relating to taxable supplies made by You through APL as agent.







3. Delivery of Licensed Applications to end-users in the United States


 


Where You designate Apple Inc. to allow access to the Licensed Applications to end-users in the United States:


 


3.1 If You are not a resident of the United States for U.S. federal income tax purposes, You will complete Internal Revenue Service Form W-8BEN and/or any other required tax forms and provide Apple with a copy of such completed form(s), and any other information necessary for compliance with applicable tax laws and regulations, as instructed on the iTunes Connect site.


 


3.2 If Apple, in its reasonable belief, determines that any state or local sales, use or similar transaction tax may be due from Apple or You in connection with the sale or delivery of any of the Licensed Applications, Apple will collect and remit those taxes to the competent tax authorities. To the extent that the incidence of any such tax, or responsibility for collecting that tax, falls upon You, You authorize Apple to act on Your behalf in collecting and remitting that tax, but to the extent that Apple has not collected any such tax, or has not received reimbursement for that tax, from end-users, You shall remain primarily liable for the tax, and You will reimburse Apple for any tax payments that Apple is required to make, but is not otherwise able to recover.







3.3 In the event that You incur liability for income tax, franchise tax, business and occupation tax, or any similar taxes based on Your income, You shall be solely responsible for that tax.


 


 




  





  











  











4. Delivery of Licensed Applications to end-users in Japan







Where You designate iTunes KK to allow access to the Licensed Applications to end-users in Japan:


 


4.1 You acknowledge and agree that You have the sole responsibility for: (i) consumption tax output liability, if any, with respect to delivery on Your behalf of Your Licensed Applications to end users by iTunes KK; (ii) filing of consumption tax returns and payment of consumption tax to the Japanese government, if applicable; and (iii) determining independently, in consultation with Your own tax advisor, Your taxpayer status and tax payment obligations for consumption tax purposes.


 


4.2 Commissions charged by iTunes KK to Japan resident developers will include consumption tax.







4.3 If You are not a resident of Japan, You may complete the withholding tax forms for Your country of residence to claim treaty benefits with Japan. Notwithstanding section 3.3 of Schedule 2, iTunes KK will remit such funds as are due to You prior to receipt of such tax documentation, but in such case in its discretion iTunes KK may withhold and remit to the competent tax authorities Japanese withholding tax unreduced by any tax treaty. iTunes KK will apply any reduced rate of withholding tax provided for in any income tax treaty between Your country of residence and Japan only to remittances made to You after iTunes KK receives and has filed the required tax documentation. iTunes KK will not refund any withholding tax withheld on remittances made prior to that date.







5. Delivery of Licensed Applications to end-users in countries listed in Exhibit A, Section 2







Where You designate iTunes Sarl to allow access to the Licensed Applications to end-users in Exhibit A, Section 2:


You acknowledge that in the event iTunes Sarl is subject to any sales, use, goods and services, value added, or other tax or levy with respect to any remittance to You, the full amount of such tax or levy shall be solely for Your account. For the avoidance of doubt, any invoice issued by You to iTunes Sarl will be limited to amounts actually due to You, which amounts shall be inclusive of any value added or other tax or levy as set forth above. You will indemnify and hold Apple harmless against any and all claims by any competent tax authorities for any underpayment of any such sales, use, goods and services, value added, or other tax or levy, and any penalties and/or interest thereon.


 


 




  





  











  






 


EXHIBIT E


 


Instructions for Minimum Terms of Developer’s End-User License Agreement







1. Acknowledgement: You and the end-user must acknowledge that the EULA is concluded between You and the end-user only, and not with Apple, and You, not Apple, are solely responsible for the Licensed Application and the content thereof. The EULA may not provide for usage rules for Licensed Applications that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise be in conflict with, the App Store Terms of Service as of the Effective Date (which You acknowledge You have had the opportunity to review).


 


2. Scope of License: The license granted to the end-user for the Licensed Application must be limited to a non-transferable license to use the Licensed Application on an iPhone OS Product that the end-user owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.


 


3. Maintenance and Support: You must be solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in the EULA, or as required under applicable law. You and the end-user must acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.


 


4. Warranty: You must be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. The EULA must provide that, in the event of any failure of the Licensed Application to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Licensed Application to that end-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Your sole responsibility.


 


5. Product Claims: You and the end-user must acknowledge that You, not Apple, are responsible for addressing any claims of the end-user or any third party relating to the Licensed Application or the end­user’s possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The EULA may not limit Your liability to the end-user beyond what is permitted by applicable law.


 


6. Intellectual Property Rights: You and the end-user must acknowledge that, in the event of any third party claim that the Licensed Application or the end-user’s possession and use of that Licensed Application infringes that third party’s intellectual property rights, You, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.


 


7. Legal Compliance: The end-user must represent and warrant that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.


 


8. Developer Name and Address: You must state in the EULA Your name and address, and the contact information (telephone number; E-mail address) to which any end-user questions, complaints or claims with respect to the Licensed Application should be directed.


 


9. Third Party Terms of Agreement:  You must state in the EULA that the end-user must comply with applicable third party terms of agreement when using Your Application, e.g., if You have a VoIP application, then the end-user must not be in violation of their wireless data service agreement when using Your Application.


 


10. Third Party Beneficiary: You and the end-user must acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.