Our Vendor Agreement

This Kyber Marketplace Vendor Agreement (this “Agreement”) is a binding agreement between EMAGEIA PTY LTD (ACN 637 863 248) (“EMAGEIA”, “we” or “us”) and the individual or entity registering as a vendor in the Kyber Marketplace (“Marketplace Vendor” or “you”). If you are an individual using the Kyber Marketplace on behalf of your company, organization or other entity, then “you” means your entity and you are binding your entity to this Agreement.

Under this Agreement, you appoint and authorize EMAGEIA, as your commercial agent, to facilitate the promotion and sale of Marketplace Apps (as defined below) on the terms and conditions of this Agreement, and EMAGEIA accepts such appointment. EMAGEIA acts as the merchant of record for the initial purchase transaction only. After a purchase is completed, you are responsible for responding to all support escalations directions by EMAGEIA pertaining to service provisioning, ongoing subscription management, renewals, customer support, and all other post-activation activities outside the Kyber platform.

Before clicking to agree to this Agreement, please carefully read the terms and conditions below. The Kyber Marketplace is not intended for and may not be used by anyone under the age of 18.

This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the Kyber Marketplace or (ii) by submitting any Marketplace App to the Kyber Marketplace.

EMAGEIA may modify this Agreement from time to time, subject to the terms in Section 18 (Agreement Changes) below.

The Kyber Marketplace is a platform that connects customers with curated vendor offerings, enabling customers to purchase discounted Marketplace Apps, directly through the marketplace. The platform operates using an acquisition-based marketplace model, where Kyber facilitates the initial purchase and customer acquisition, while vendors manage the ongoing service relationship with the customer.

Kyber acts as the merchant of record for the initial purchase transaction only. After the initial purchase is complete, vendors are solely responsible for:

• Validating customer coupons through the Kyber API;
• Provisioning the purchased service upon successful coupon validation;
• Managing all ongoing subscriptions and renewal billing directly with the customer outside the Kyber platform;
• Responding to support escalations directed by the Marketplace Admin and managing the ongoing customer relationship after service activation;
• Maintaining their Stripe payout account in good standing; and
• Maintaining correct activation mapping configuration within their vendor settings.

2.1. “Kyber Marketplace” or “Marketplace” means the platform accessible through https://customer.kybermarketplace.com/products or any other webpage, application, interface, service or in-product experience at which EMAGEIA makes available or lists Marketplace Apps.

2.2. “EMAGEIA Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by EMAGEIA, including but not limited to rights granted to the name and mark “Kyber”. Nothing contained herein shall grant you any ownership right in the EMAGEIA Marks or any other EMAGEIA intellectual property.

2.3. “Kyber Platform” means the technology platform, software, systems, APIs, portals, infrastructure, services, and related functionality operated by EMAGEIA in connection with the operation of the Kyber Marketplace.

2.4. “Coupon” means a unique activation code generated by Kyber upon successful completion of a purchase transaction, linked to a specific vendor, package, plan type, vendor plan identifier, discount percentage, and expiry date, and used to activate the purchased service on the vendor platform.

2.5. “Coupon Status” means the current state of a Coupon as shall be identified by EMAGEIA.

2.6. “Deal Listing” means a Marketplace App listing of Product Type SaaS Product through which customers may purchase discounted access to a vendor’s product or service using the Kyber Marketplace, with EMAGEIA acting as the merchant of record for the transaction.

2.7. “End User Data” means any data, content or information of an end user that is accessed, collected or otherwise processed by you or your Marketplace App in connection with use of the Kyber Marketplace.

2.8. “End User Privacy Policy” means a legally adequate privacy policy provided to each end user from whom you or your Marketplace App collects, accesses, or otherwise processes End User Data.

2.9. “End User Terms” means a legally adequate agreement governing end user use of your Marketplace Apps.

2.10. “Laws” means all applicable laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications or the export of technical or personal data.

2.11. “Lead Listing” means a Marketplace App listing through which customers may submit inquiries, consultation requests, quote requests, demo requests, or other lead information to a Vendor, without any purchase transaction being processed through the Kyber Marketplace.

2.12. “Marketplace Apps” means software products, applications, or services that you make available for listing and sale through the Marketplace.

2.11. “Marketplace Discount Programs” means the current Marketplace discounts listed at https://customer.kybermarketplace.com. In Phase 2, supported discount values are limited to 10%, 20%, 25%, 30%, 50%, or 75% of the listed price, applicable to the initial purchase only.

2.12. “Revenue Share” means the revenue remitted to the Marketplace Vendor as set out in Schedule 1 below, being 70% of the net transaction value after Stripe processing fees, in accordance with Section 4.2 (Revenue Share) below.

2.13. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End 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 Marketplace App or (c) excessive or abusive use of EMAGEIA’s APIs that materially degrades platform performance.

2.14. “Similar Service” means, in relation to Deal Listings, any online distribution service or channel (other than the Kyber Marketplace) that makes such Marketplace Apps available for sale, use or download to end users.

3.1. The Kyber Marketplace includes the following core capabilities:

This Section 4 (Financial Terms) shall only apply to Deal Listings.

4.1. List Price

(a) Generally. 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 your Deal Listings (the “List Prices”). Only Subscription and Lifetime plan types are supported on the Kyber Marketplace.

(b) Similar Services. You agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Paid-via-Kyber App available on any Similar Service.

4.2. Revenue Share

Subject to this Agreement, for each Sale, EMAGEIA will pay you the applicable Revenue Share. The current Revenue Share structure is:

• EMAGEIA retains: 30% of the transaction value;
• Vendor receives: 70% of the transaction value.

Stripe payment processing fees are shared equally, with 50% borne by EMAGEIA and 50% borne by the Vendor. The Revenue Share payable to the Vendor is calculated after deduction of the Vendor’s 50% share of Stripe processing fees.

A Revenue Share is due only for Sales for which EMAGEIA has received final and cleared payment from an end user. The current Revenue Share is set out in Schedule 1 hereto. Any change to the Revenue Share will take effect on the effective date stated in the written notice sent to you by email and published on the Vendor Portal. Revenue Share changes will not apply retroactively to Sales completed before that effective date. For avoidance of doubt, no Revenue Share is payable in respect of Lead Listings which do not involve a financial transaction. This will only be applicable to Deal Listings.

4.3. Currency

Unless otherwise specified, you will designate your List Price in United States Dollars (USD) and EMAGEIA will make all Revenue Share payments to you in USD.

4.4. Vendor Payouts

Vendor payouts are subject to the following terms:

• Payouts are processed through Stripe. You must connect and maintain a valid Stripe payout account to receive earnings. You are responsible for 50% of any fees charged by Stripe in connection with your payout account. We agree to bear the balance 50% of any fees charged by Stripe in connection with your payout account.
• A 7-day refund protection hold period applies to all vendor earnings from the date of the initial transaction. Earnings are not eligible for payout until the hold period has expired without a refund being issued.
• Eligible earnings are processed on a 14-day payout cycle.
• If a payout attempt fails, it will not be automatically retried. Failed payouts require review and intervention by a Kyber administrator. EMAGEIA will notify you of any payout failure where reasonably practicable.
• EMAGEIA is entitled to accrue and withhold payments until they become eligible in accordance with this Agreement.

4.5. Refunds; Withholding of Revenue Share

Refund eligibility and the handling of Revenue Share in connection with refunds are governed as follows:

• Refunds are available only within 7 days of the initial purchase transaction.
• A refund is only available if the Coupon associated with the purchase has not yet been redeemed. Once a Coupon has been redeemed, the transaction is considered fulfilled and EMAGEIA will not process a refund.
• If EMAGEIA issues a refund prior to paying you the Revenue Share for the applicable Sale, you will not receive and will have no right to receive a Revenue Share on the refunded amount.
• Once a Coupon has been redeemed, any service disputes, service-related refunds, or follow-up resolution are handled directly between you and the customer. EMAGEIA bears no responsibility for post-redemption refunds or disputes.
• Upon termination of this Agreement by either party, all outstanding Revenue Share payments due to the Vendor and any commissions or other amounts due to EMAGEIA shall be settled prior to the effective date of termination, subject to any applicable refunds or amounts owed under this Agreement.

4.6. Use of Financial Information

• EMAGEIA shall only use your banking and payment information for purposes related to this Section 4 (Financial Terms). EMAGEIA shall not disclose your sales and related financial data to third parties except agents and contractors acting on EMAGEIA’s behalf and except as required by Laws.
• EMAGEIA may use or disclose aggregated sales and financial data related to the Kyber Marketplace in a manner that does not identify you or your data specifically.
• You acknowledge that EMAGEIA uses Stripe as its payment processor and that your banking and payment information will be shared with and processed by Stripe in accordance with Stripe's terms of service and privacy policy. EMAGEIA is not responsible for Stripe's handling of your data beyond ensuring Stripe is engaged under appropriate contractual terms.
• Subsequent to termination of this Agreement, EMAGEIA will retain your financial data only for as long as required by applicable Law or for legitimate audit purposes and will delete or anonymize such data thereafter.

4.7. Taxes

Except as described in this Agreement (including Section 4.8 for GST Registered Marketplace Vendors), EMAGEIA is responsible for collecting and remitting any taxes imposed on sales of Deal Listings to end users. You are responsible for any income or other taxes due and payable resulting from EMAGEIA’s payments to you. Unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. EMAGEIA reserves the right to deduct or withhold any taxes required by applicable Law from amounts payable to you. Where EMAGEIA withholds any amount, EMAGEIA will provide you with documentation of the withholding (including any applicable withholding tax certificates) within thirty (30) days of the deduction to enable you to claim any available tax credits.

4.8. Marketplace Vendors Required to Register Under Australian GST Rules

Notwithstanding any conflicting terms above in this Section 4, if you are a Marketplace Vendor that is registered or required to be registered under the Standard Australian Goods and Services Tax registration (“GST”) (“GST Registered Marketplace Vendor”), prior to EMAGEIA’s payment to you, you acknowledge that you are required to issue a tax invoice to EMAGEIA to comply with Australian GST rules. However, in the interests of administrative simplicity, you and EMAGEIA agree that EMAGEIA will issue recipient created tax invoices (“RCTIs”) for taxable supplies made under this Agreement (together with the report and payment described in Section 4.4) and that you will not issue tax invoices for those supplies. For the purposes of issuing RCTIs, both parties acknowledge that they are Standard GST Registered Vendors and will notify each other if that ceases to be the case. You acknowledge that you remain responsible for filing a GST return and remitting any GST received to the Australian Tax Office in accordance with your individual circumstances.

5.1. Activation Mechanism. The Kyber Marketplace uses a coupon-based activation model. After a successful purchase, Kyber generates a unique Coupon associated with the relevant Vendor, purchased plan, applicable discount, activation details, and expiry information required to facilitate service activation and validation

The Coupon is delivered to the customer via email and made available within the customer account. The Coupon is stored with an initial status of Active.

5.2. Customer Redemption. The customer redeems the Coupon directly on your platform during onboarding or checkout. Kyber does not control or manage the customer’s redemption experience on your platform.

5.3. Vendor Validation via API. You are responsible for validating Coupons. Prior to activating, provisioning, or granting access to any service associated with a Coupon, the Vendor must submit the Coupon for validation using the Marketplace API or other validation mechanism made available by EMAGEIA. Upon successful validation, EMAGEIA will provide the information required by the Vendor to identify the applicable offering, entitlement, or discount associated with the Coupon. The Vendor may rely on the validation response for activation purposes and must not activate, provision, or honour Coupons that fail validation. The Vendor must use the authentication credentials issued by EMAGEIA and comply with all applicable integration documentation and technical requirements published by EMAGEIA from time to time. The Vendor must not modify, bypass, circumvent, interfere with, or replicate the Marketplace validation mechanism.

5.4. Validation Response. If a Coupon is successfully validated, Kyber will return the activation information associated with that Coupon, including such information as may be reasonably required by the Vendor to identify the applicable offering, entitlement, plan, discount, or other activation details necessary to provision the purchased service.

Upon returning a valid response, Kyber will mark the Coupon as Redeemed and update the order status accordingly.

5.5. Service Provisioning. You are solely responsible for provisioning the purchased service upon successful coupon validation. Service provisioning must be based on the activation details in accordance with the activation information provided by Kyber and the terms of the applicable Marketplace listing.

5.6. Post-Activation Responsibility. Kyber does not manage downstream subscriptions, renewals, or post-activation customer relationships. You are solely responsible for all service management after activation, including billing, renewals, customer support, and all other ongoing obligations to the customer.

5.7. Activation Mapping Configuration. You are responsible for maintaining correct and up-to-date activation mapping configuration (including vendor plan references and plan types) within your vendor settings on the Marketplace. Errors in your configuration that result in incorrect service provisioning are your sole responsibility.

6.1. Delivery

Marketplace Apps and Product Information. You will provide EMAGEIA with all information required to create and maintain a Marketplace App listing on the Kyber Marketplace on or before the date you designate for publication. Such information may include the Marketplace App name, category, industry, product headline, product description, key features, pricing information, plan type, discount configuration, logo, images, website URL, support contact details, Terms and Conditions URL, and any other information reasonably required by EMAGEIA from time to time. You will also provide any metadata, graphics, artwork, images, trademarks, trade names, logos, and other identifying information associated with you or your Marketplace App. Collectively, such information is referred to as “Product Information.”

For the purposes of this Agreement, “Content” means the Product Information and any other materials submitted by you to EMAGEIA in connection with the listing, promotion, operation, or administration of your Marketplace App on the Kyber Marketplace.

6.2. Accuracy

You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated, you will promptly provide EMAGEIA with corrections.

6.3. Compliance

You will ensure that all Content complies with this Agreement, the terms of which may be updated from time to time and reflected on the website. You are responsible for updating yourself of the Content in this Agreement as per the most current version available on the website. For important or urgent updates we will communicate such information to you via the support email and Vendor Portal notifications.

6.4. License Grant to EMAGEIA

You hereby grant EMAGEIA, during the Term (and thereafter in accordance with Section 11 (Term and Termination)), the nonexclusive, royalty-free, worldwide right and license to: (a) make available the Marketplace Apps through the Kyber Marketplace to end users by all means of electronic distribution; (b) use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information in any and all digital and other formats for promotional purposes in connection with the Kyber Marketplace and listings for your Marketplace Apps; and (c) use, store, copy and distribute your Content for evaluation (including security scanning), for purposes of exercising EMAGEIA’s rights and fulfilling EMAGEIA’s obligations hereunder, and for purposes of enforcing this Agreement

6.5. End User Terms

You, not EMAGEIA, license your Marketplace Apps to end users, and you must provide your own End User Terms and End User Privacy Policy with any Marketplace App. Your End User Terms and End User Privacy Policy must comply with the terms and conditions of this Agreement. You agree that EMAGEIA does not and will not have any responsibility or liability related to compliance or non-compliance by you or any end user under your End User Terms or End User Privacy Policy.

In addition to other obligations set out in this Agreement, you are responsible for:

• Validating customer Coupons via the coupon redemption API or other validation mechanism provided by EMAGEIA before provisioning any service;
• Provisioning the purchased service promptly and correctly after successful coupon validation;
• Maintaining a valid and connected Stripe payout account throughout the Term;
• Providing all customer support and managing customer relationships following service activation, including all post-activation queries, complaints, and requests;
• Managing all ongoing subscription billing, renewals, and related customer obligations outside the Kyber platform;
• Maintaining correct and up-to-date activation mapping configuration within your vendor settings;
• Ensuring coupon redemptions are correctly mapped to the corresponding vendor plans, subscriptions, or entitlements
• Responding within 24 hours to any support request identified by EMAGEIA as critical, and within five business days in all other cases; and
• Ensuring that your Marketplace Apps, content, and conduct comply with all applicable Laws and the terms of this Agreement at all times.

8.1. Listing Lifecycle

All Marketplace App listings submitted by you are subject to the following lifecycle:

• Draft: Listing created by the vendor but not yet submitted for review.
• Pending Approval: Listing submitted and being reviewed by the Kyber administration team.
• Changes Requested: Listing requires amendments before it can be approved; the vendor must update and resubmit.
• Published: Listing approved and visible to customers on the Marketplace.
• Unpublished: A previously Published listing that has been taken offline by the Vendor or by KN. The listing is no longer visible to customers, but existing Coupons remain valid until their expiry.
• Rejected: Listing does not meet Marketplace standards and cannot be published in its current form; a new or updated submission is required.

8.2. Listing Constraints

Only one product type may be selected per listing: Deal based product or Request based product. In addition to the same, the following constraints will apply to all product listings on the Kyber Marketplace:

• Only Subscription and Lifetime plan types are supported;
• Discount values are limited to 10%, 20%, 25%, 30% 50%, or 75% of the listed price;
• Discounts apply to the initial purchase only; and
• Complex or custom pricing models are not supported.

8.3. EMAGEIA Control of Marketplace

EMAGEIA may determine in its sole discretion to make available or list any Marketplace App through the Kyber Marketplace, or to remove any Marketplace App from the Kyber Marketplace. EMAGEIA may stop any transaction or take other actions to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Where EMAGEIA removes or suspends a Marketplace App listing, EMAGEIA will notify you of the removal and the reason within a reasonable timeframe. Removal of a listing from the Marketplace does not affect the validity of Coupons already issued to customers. Active Coupons remain valid until their Coupon Expiry date regardless of listing status. Inclusion of a Marketplace App in the Kyber Marketplace does not relieve you of responsibility to ensure the Marketplace App complies with this Agreement or to perform other obligations under this Agreement.

As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the EMAGEIA Platform or other EMAGEIA technology or materials used or included in the Content. Subject to your foregoing rights in the Content, EMAGEIA retains all right, title and interest in and to the Kyber Marketplace, EMAGEIA Platform, all EMAGEIA Apps, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.

10.1. Prohibited Actions; Responsibilities

You may not reverse engineer, disassemble or decompile any EMAGEIA code or technology used in connection with the Kyber Marketplace, including the EMAGEIA Platform. 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 EMAGEIA or of any end user or other third party. You agree not to make any representations, guarantees or warranties that violate any laws or regulations, with respect to EMAGEIA or the Kyber Marketplace, or by or on behalf of EMAGEIA. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue EMAGEIA or the Marketplace.

10.2. Review of Marketplace Apps by You

The Kyber Marketplace allows you upon purchase of a Marketplace App, to post reviews of Marketplace Apps offered by other vendors. Any review by you of a Marketplace App shall be made in good faith after reasonable evaluation. You (including your employees and others acting on your behalf) may not review or comment on your own Marketplace App or those of competitors. EMAGEIA (in its discretion) may take down reviews or block reviewers, especially in the event of a violation of any laws, or any defamatory, derogatory, discriminatory statement made, any profanatory language used, any comments of bullying / harassment, or causing distress to any persons, group of persons, any views that are deemed inappropriate or if flagged by a Vendor, or any other violation.

10.3. End User Data and Privacy-Related Obligations

(a) End User Data. You will not have access to any End User Data through the Marketplace Apps except in the instance of Leads based purchases for the limited purposes of availing yourself of the offered Services.

(b) Collection and Use. You must obtain all necessary rights, permissions, and consents from end users for your access, collection, storage, transmission, use, disclosure, sharing, and other processing of any End User Data, and will ensure that all such processing complies with your End User Terms, End User Privacy Policy, and all Laws.

(c) End User Communications. You may communicate directly with end users only where required by Law or as consented to or requested by the end user or for purposes related to the service purchased via the Coupon, including transactional communications, service updates, and customer support.

(d) End User Privacy Policy. You must provide a clear, complete, and conspicuous End User Privacy Policy that notifies end users (1) how you access, collect and process End User Data, (2) with whom you share End User Data, (3) in which country or countries End User Data will be stored and (4) that you (not EMAGEIA) are responsible for your processing of End User Data. You must comply with the terms of your End User Privacy Policy and promptly notify end users and EMAGEIA of any material changes to it. Vendors will be provided with at least thirty (30) days’ notice of material changes to EMAGEIA privacy practices that may affect Vendor obligations or customer data processing activities.

(e) Security. You must use industry-standard security measures appropriate for all End User Data and your processing activities. If EMAGEIA becomes aware of a security vulnerability affecting your Marketplace App (whether through end user reports, public disclosure, or otherwise), EMAGEIA will notify you and you must acknowledge and remediate the vulnerability within a reasonable timeframe commensurate with its severity, and in any event no longer than 7 business days from the date of notice.

(f) Security Incidents. Upon discovery or notice of any Security Incident, you will promptly (within 48 hours) notify EMAGEIA. You will provide further information and assistance related to the Security Incident as EMAGEIA may request. You will be solely responsible, at your own expense, for investigation, remediation and notifications to affected end users and regulatory authorities in accordance with Laws and industry standards. You must obtain EMAGEIA’s approval for any breach notifications to end users that refer directly or indirectly to EMAGEIA.

10.5. Feedback

Providing feedback, comments or suggestions about the Kyber Marketplace (“Feedback”) to EMAGEIA is wholly voluntary. EMAGEIA may freely use Feedback for purpose of improving and developing the Kyber Marketplace. EMAGEIA will not attribute Feedback to you without your consent, and providing Feedback does not create any obligation on EMAGEIA to implement it or compensate you.

10.6. Aggregated Information

In addition to EMAGEIA’s other rights, EMAGEIA may collect aggregated information regarding the Kyber Marketplace and Marketplace Apps (excluding any personally identifiable information). We will not provide information to any third party about Marketplace Apps, or end users purchasing Marketplace Apps, except as necessary (a) as use for payment processors solely for the purpose of processing transactions; (b) as required by applicable Law or legal process; or (c) in aggregated, anonymised form that does not identify any individual vendor or end user.

EMAGEIA makes available a variety of Marketplace Apps built by third party developers on the Kyber Marketplace. From time to time, you may have inquiries, concerns or disputes regarding one or more Third Party Marketplace Apps or their associated Content, or the developers of Third-Party Marketplace Apps may have inquiries, concerns or disputes regarding your Marketplace Apps or their associated Content (collectively, “Third Party Vendor Claims”). EMAGEIA is not responsible for evaluating, investigating, or resolving any Competing Marketplace App Claims. All responsibility for investigating, evaluating and resolving a Competing Marketplace App Claim involving your Marketplace Apps or Content lies solely with you and the relevant third party. You agree that you will direct any and all Third-Party Vendor Claims solely at the relevant third party and you agree not to bring any claim against EMAGEIA related to such claims, except where EMAGEIA has failed to act on a valid takedown request within 14 days of receiving written notice with reasonable evidence of infringement. For avoidance of doubt, the sole liability of EMAGEIA pertaining to any such Third-Party Vendor Claims shall be limited to enacting a takedown request.

12.1. Term

The term of this Agreement (the “Term”) will begin on the date you agree to it and will continue until you or EMAGEIA terminates it.

12.2. Termination Rights

(a) Either EMAGEIA or you are entitled to terminate (i) this Agreement, in its entirety or with respect to Marketplace Apps, 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 party breaches its confidentiality or privacy related obligations under this Agreement, or (3) the 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, EMAGEIA may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Marketplace Apps) where: (i) EMAGEIA ceases to operate the Marketplace; (ii) you violate EMAGEIA’s User Policy; or (iii) EMAGEIA determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to EMAGEIA or any third party or otherwise harm the Marketplace or other Marketplace Vendors or users.

12.3. Effect of Termination; Transition

(a) Termination for default or unlawful conduct. In the event a Vendor has materially defaulted these terms incapable of rectification or if the Vendor is guilty of illegal, unlawful conduct or fraudulent behaviour, EMAGEIA reserves the right to immediately remove any Listings from the Platform and suspend / terminate the Vendor account with no payment / refund or rebate owed to the Vendor. For avoidance of EMAGEIA shall not be liable for any pending transactions between the Vendor and an End User.

(b) Pending Orders; Transition Period. Following any termination or expiration of this Agreement for non-material breach or withdrawal of your Marketplace App from the Marketplace, in EMAGEIA’s discretion, EMAGEIA may continue to fulfil any end user orders pending as of the date the termination takes effect, and EMAGEIA will use reasonable efforts to take down the listing for your Marketplace App within seven (7) days after the effective date of termination (the “Transition Period”). EMAGEIA shall settle all outstanding revenues, payouts, and fees due to the Vendor for fulfilled orders prior to the effective date of termination.

(c) End User Rights. Unless otherwise specified by EMAGEIA, all end user licenses and subscriptions to Marketplace Apps (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable End User Terms.

(d) Your Transition Obligations. If you are a Marketplace Vendor of Deal Listings, then prior to expiration of the Transition Period you are responsible for: (1) making Cloud Apps available to EMAGEIA and Marketplace users on a hosted basis at least until the conclusion of any surviving terms; (2) ensuring that existing end users continue to have uninterrupted access to their purchased services directly through the Vendor's platform following termination of this Agreement, and keeping end users informed of any changes affecting their services; (3) arranging to provide for ongoing support and maintenance with respect to your Marketplace Apps for all end users who have purchased such rights for the duration of the term for which you have committed; (4) communicating such matters accurately and in a positive and professional manner to end users; and (5) settle all payments due to EMAGEIA prior to the effective date of termination.

12.4. Survival

The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 6.2 (Accuracy), 10 (Additional Kyber Marketplace Terms), and Sections 13 through 20.

You represent, warrant and covenant that:

• You are at least 18 years of age and are able to form a legally binding contract;
• You have the full right, power, and authority to enter into and fully perform this Agreement;
• Before providing EMAGEIA any Content or listing Content in the Kyber Marketplace, you will have obtained all rights necessary for the exercise of all rights granted under this Agreement;
• None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity: (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
• You will immediately notify EMAGEIA if you lose any IP rights related to your Marketplace Apps or become aware of a third-party claim related to these rights;
• Any Content you provide to EMAGEIA (including images, files, and listing materials) will not contain any viruses, spyware, 'Trojan horses,' or other malware or harmful code; and

14.1. By EMAGEIA

Subject to the terms and conditions of this Agreement EMAGEIA will not be held liable or responsible for any claims by third parties on actual or alleged intellectual property rights infringement due to the use of such third-party intellectual property rights by a Marketplace Vendor on Kyber Marketplace. EMAGEIA shall only be liable or responsible to a Marketplace Vendor for any actual breach of services offered under the Kyber Marketplace or any infringement of the intellectual property rights of a Marketplace Vendor and the unlawful use by EMAGEIA of such intellectual property.

14.2. By You

You will indemnify, defend and hold harmless EMAGEIA and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any third party claim relating to (i) any Content or the use of Content (including any claims made by or arising from end users); (ii) your breach or alleged breach of this Agreement; (iii) any Security Incidents caused by your Marketplace Apps or third party services supporting your Marketplace Apps; or (iv) any failure by you to properly provision, support, or manage services following coupon redemption. Your obligations under this Section 14.2 are independent of your other obligations under the Agreement.

15.1. Definition

All information disclosed by EMAGEIA 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 Kyber Marketplace and EMAGEIA’s applications; non-public End User Data provided to you by EMAGEIA; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and EMAGEIA under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally EMAGEIA own to the public; (ii) was EMAGEIA own to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to EMAGEIA or anyone else.

15.2. 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 fulfil your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide EMAGEIA with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at EMAGEIA’s cost, if EMAGEIA wishes to contest the disclosure. The confidentiality obligations hereunder shall survive to the extent required by law or until such time the confidential information retains commercial value, whichever the latter.

15.3. Injunctive Relief

In the event of actual or threatened breach of this Section 15, EMAGEIA shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information.

EMAGEIA develops its own products and services and works with many other vendors and developers, and either EMAGEIA or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your Marketplace Apps. Subject to EMAGEIA’s obligations relating to your financial data in Section 4.6 and the terms of any applicable mutually agreed non-disclosure agreement, nothing limits EMAGEIA or such third parties from doing so, and EMAGEIA has no confidentiality obligations for information you submit in connection with this Agreement.

You will not violate EMAGEIA intellectual property in any form, including EMAGEIA patents, trademarks, copyrights, and trade secrets. You will: (i) only use the EMAGEIA Marks only for the limited and restricted lawful purpose in connection with the sale of your Marketplace Apps in the Kyber Marketplace; (ii) follow any other policies that EMAGEIA communicates to you regarding the use of EMAGEIA Marks; (iii) not register any domain names that contain any terms that are the same or similar to any EMAGEIA Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the EMAGEIA Marks.

18.1. Disclaimer of Warranties

THE EMAGEIA MARKETPLACE, EMAGEIA MARKS AND EMAGEIA PLATFORM ARE PROVIDED “AS IS” AND EMAGEIA EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

18.2. Limitations of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 ABOVE AND FOR MARKETPLACE VENDOR’S BREACH OF SECTION 10.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 10.3 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 15 (CONFIDENTIALITY): (A) NEITHER YOU NOR EMAGEIA SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EMAGEIA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE KYBER MARKETPLACE EXCEED THE FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE-MONTH PERIOD PRECEDING THE CLAIM. “EMAGEIA’S MARGIN” MEANS THE AMOUNTS RECEIVED BY EMAGEIA FROM SALES OF YOUR MARKETPLACE APPS, MINUS THE REVENUE SHARE EMAGEIA HAS PAID YOU.

18.3. Basis of Bargain

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.

As the Kyber Marketplace evolves over time, we may need to update this Agreement. Therefore, EMAGEIA reserves the right to change this Agreement at any time in its sole discretion with the changes becoming effective thirty (30) days after notice (unless EMAGEIA specifies a shorter notice period of no less than 7 days). EMAGEIA will notify Vendors of material changes to this Agreement via email to their registered email address and through the Vendor Portal or Kyber Marketplace. You agree to adopt and make any internal changes necessary to align with such updated Agreement terms within the notice period.

If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to EMAGEIA of 7 days from the date of notice of such intention to terminate and (ii) withdrawing all of your Marketplace Apps from the Marketplace within the said notice period. Noncompliance with updated terms shall result in automatic suspension or termination of services in line with the provisions of this Agreement. Notwithstanding the foregoing, EMAGEIA will continue to honour active Coupons until their expiry, and will process any outstanding Revenue Share payments in accordance with Clause 4 of this Agreement.

20.1. 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 20.2 (Governing Law; Jurisdiction).

20.2. Governing Law; Jurisdiction

This Agreement will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia. Each party agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought before the non-exclusive jurisdiction of the court of Victoria, Australia.

The parties may opt to resolve any dispute through arbitration in accordance with the Rules of the Australian Centre for International Commercial Arbitration (ACICA) which are deemed incorporated by reference into this clause. The seat of arbitration shall be Victoria, Australia. The arbitration shall be conducted in English and by a single arbitrator. The venue for arbitration shall be decided by the Parties at the time of submission. Notwithstanding the above, either Party may seek injunctive relief against a Party related to acts or omissions that breach this Agreement and cause or are likely to cause irreparable harm to the other Party, without first referring the Dispute to arbitration.

20.3. Injunctive Relief; Enforcement

Notwithstanding the provisions of Sections 20.1 and 20.2, nothing in this Agreement will prevent EMAGEIA from seeking injunctive relief with respect to a violation of intellectual property rights, any Security Incident, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

20.4. 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.

This Agreement may be amended as provided in Section 19 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or partners, despite use of the term “Vendor”. EMAGEIA’s failure to enforce any provision of this Agreement will not constitute a waiver of EMAGEIA’s rights to subsequently enforce the provision. EMAGEIA may freely assign, transfer, and delegate its rights and obligations under this Agreement. You may not assign any of your rights or obligations under this Agreement without EMAGEIA’s prior written consent, except in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give EMAGEIA written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter.

Any notice or other communication to be given hereunder will be given (i) by EMAGEIA via the support email to support@kybermarketplace.com or to such other email or physical addresses as EMAGEIA may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.

REVENUE SHARE AND COMMERCIAL TERMS

Revenue share amounts are exclusive of taxes and any separately stated fees or charges. EMAGEIA may amend the Revenue Share in accordance with Section 4.2. Changes take effect on the effective date stated in the email notice and Vendor Portal publication.