AppDirect Self-Serve Agreement

Last updated on May 9, 2022

Welcome, and thank you for your interest in AppDirect, Inc. ("AppDirect"), and the AppDirect digital product marketplace, management, and identity platform consisting of the websites located at AppDirect.com (including branded and white labeled subdomains of AppDirect.com) and other related websites, services, applications, widgets, and networks owned or controlled by AppDirect (collectively referred to herein as the "AppDirect Marketplace"). 

This Agreement is for third-parties making available the AppDirect Marketplace as part of the ‘self-service’ offerings, namely AppDirect AppStore and AppDirect Starter AppStore (“Self-Service Offerings”). You acknowledge and agree that the Self-Service Offerings may be discontinued upon reasonable prior notice to you. 

From a contractual standpoint, you enter into this Self-Serve Agreement (“Agreement”) upon acceptance of these terms and you represent and warrant that you have the authority to enter into this Agreement. This Agreement is made by and between AppDirect, Inc. and the contracting entity identified in the sign-up information submitted to AppDirect (“Company”) as of the date of confirmation by AppDirect (the “Effective Date”). Various capitalized terms are set forth on Exhibit A  below.

You enter into this Agreement on behalf of the entity or corporation you identify in the sign-up process. The Self-Service Offerings are not made available to consumers or individuals. 

The Subscription Services Agreement does not apply to you. If you wish to benefit from the Subscription Services Agreement, then please contact us to enter into a written order form and agreement.

We hope that the Self-Service Offerings meet your needs, but note that this Agreement has disclaimers of warranty, including as to the suitability of the offerings to your business or with respect to legislative or tax requirements.

Applicable terms for the Self-Service Offerings: 

  • The Self-Service Offerings are subject to the fees provided upon sign-up (invoiced at the end of any trial period, if any), which consist of a fixed monthly fee and a percentage-based transaction fee: 
  • Monthly fees are paid upfront by credit card or ACH, and transaction fees are charged at the end of each monthly billing period. 
  • All amounts are in $USD.
  • Subscriptions are for one (1) year and shall renew automatically unless either party provides thirty (30) days’ prior written notice. 
  • In case of early termination by Company of its annual subscription, Company shall be invoiced a termination penalty of 50% of all outstanding fees. This includes any proposed or purported downgrade of subscription levels within the Self-Service Offerings (if available).
  • If Company registers under a free or trial period, Company shall be moved to the paid Self-Service Offering(s) at the end of the free or trial period unless Company terminates its subscription. Company cannot register with different users or circumvent any free or trial period to avoid paying fees.
  • Company shall provide a valid card to the payment processor designated by AppDirect, and shall update the same as required. 
  • AppDirect shall make commercially reasonable efforts to provide support to Company. Company shall submit any support request by the means designated by AppDirect (e.g. online form or widget). Without limiting the foregoing, there is no uptime or availability commitment made by AppDirect for the Self-Service Offerings.
  • A valid subscription to the tax calculating engine designated by AppDirect is required for the Company to avail itself of the Self-Service Offerings. 
  • ‘Bring your own Payment Gateway’ - Company shall be solely responsible to contract and designate a recognized payment processor supported by the Self-Service Offerings for the transactions powered by the Self-Service Offerings. AppDirect does not make any warranty with respect to the Company’s ability to meet PCI/DSS compliance. 
  • AppDirect does not provide support to Company’s customers/end-users. 
  • AppDirect does not provide tax, legal or professional advice on any matters related to the AppDirect Marketplace and/or the Self-Service Offerings. 
  • The Self-Service Offerings do not confer the ability for Company to resell any third-party products or services provided by AppDirect as part of its Core Distribution (as defined in the Marketplace Service Terms)  program or otherwise.
  • Company shall be solely responsible for any third-party products onboarded onto the AppDirect Marketplace by Company. Company represents and warrants that it has and shall maintain all required rights and authorizations with respect to such third-party products. 
  • Company shall promptly remove and disable any products or service offerings that it no longer has the rights or authorizations to make available on the AppDirect Marketplace. 
  • If a payment by Company is subject to any withholding, excise, sales, value added, or any other taxes in accordance with applicable laws, Company shall be liable for all such taxes.  As required, Company shall increase the Fees payable to AppDirect by an amount sufficient to fully offset the impact of such withholding tax or other taxes, such that AppDirect will receive the full amounts due under this Agreement.  Company agrees to use their best efforts to determine whether the withholding tax can be reduced or eliminated under an applicable tax treaty and AppDirect agrees to act in good faith to provide documentation necessary to evidence qualification under any such tax treaty. Company shall remit any such withholding to the relevant authority on a timely basis and provide to AppDirect documentation to evidence payment of such withholding taxes.   
  • Company is solely responsible for managing cases of mispayment, fraud or chargebacks by its customers, and shall communicate with AppDirect by the means designated by AppDirect to manage same. AppDirect makes no warranties that any such issues may give rise to refunds or offsets.
  • Company shall select a domain name related to its name and operations, and shall not use a domain name that infringes upon third party trademarks or trade names. AppDirect reserves the right to select a domain name or suspend access to the Marketplace at its discretion where there are known or potential issues with the domain name selected by Company.

  1. Services Subscription

    1. Services: AppDirect shall make the Services available to Company solely for Company’s own business purposes during the Term pursuant to the terms of this Agreement. AppDirect’s obligation to provide the Services may be fulfilled by AppDirect directly or through its Affiliates and/or subcontractors. AppDirect shall remain responsible for the provision of Services under this Agreement.

    2.  Service Terms: The Marketplace Terms of Service apply to you, except as provided in this document (“Service Terms”). 

    3. Customers and End Users: Company may provide access to the Services to Company’s Customers and such Customers’ End Users only for such Customers’ and Customers’ End Users’ end-use and not for resale. Company acknowledges and agrees, and shall ensure that its Customers and their End Users acknowledge and agree, that AppDirect has the right to restrict, suspend or terminate any Customer’s and/or End User’s access to the Services, including licenses or rights to any AppDirect Properties, if AppDirect determines that such Customer and/or End User (i) refuses to accept, agree to and/or comply with Section 1(f) of this Agreement and/or Section 1.2 of the Service Terms; (ii) accesses and/or uses the Services in violation of any provision of this Agreement and/or the Service Terms; or (iii) as otherwise as provided in this Agreement and/or the Service Terms. Company shall be solely responsible for setting the price of the Services for Customers and their End Users and for all billing of Customers and their End Users. Notwithstanding anything to the contrary in this Agreement, the non-payment of fees by Customers and/or End Users to Company shall not relieve the Company of its obligation to pay Fees to AppDirect.

    4.  Company Access: Company may access and use the Services internally as reasonably necessary for the purposes of implementation, support, quality control, testing and training of its own representatives, subject to the terms and conditions of this Agreement and/or the Service Terms.

    5.  AppDirect Access: Company shall, at Company’s expense, provide AppDirect access to Company’s and/or its subcontractor’s systems in order to allow support and necessary system integration, if any, for the use of the Services or of any AppDirect Product.

    6.  Restrictions: Company shall not, and shall not permit any third party (including Customers and End Users), directly or indirectly, to: a.       decompile, disassemble, reverse engineer, decrypt or otherwise attempt to derive any source code from any AppDirect Property; b.       modify, adapt or create any derivative applications or derivative works of or from any AppDirect Property; c.        destroy or remove any Intellectual Property, confidentiality or other proprietary or legal markings or notices on the any AppDirect Property or supporting media; d.       sell, license, lease, transfer, advertise, access, use or distribute any AppDirect Property to any third party, except as expressly provided in this Agreement; e.       transmit, display, store, distribute or otherwise make available through or in connection with any AppDirect Property, content that (i) violates any license agreements, Intellectual Property Rights, confidentiality, privacy or other legal rights of others, (ii) is inappropriate, inaccurate, illegal, or offensive, or (iii) that contains or triggers any viruses, Trojan horses, worms, malware, time bombs, cancelbots, corrupted or malicious files, or any other similar software, program or device that may be damaging; f.         access, use or distribute any AppDirect Property for unlawful, fraudulent, infringing, inappropriate, or otherwise unsuitable purposes; g.       attempt to interfere with, disrupt or disable or circumvent or alter any method of measuring, tracking, recording or billing of the Services; h.       disclose information or analysis (including without limitation benchmarks) regarding the quality or performance of any AppDirect Property; or i.         access, use or distribute a specific Service in violation of the relevant Service Terms.

  2. Payment, Fees and Taxes 

    1.  Fees: In consideration of the provision of Services under this Agreement, as applicable, Company shall pay to AppDirect all Fees set forth in the sign-up process. Fees exclude any and all applicable Taxes, which shall be paid by Company in addition to the Fees. 

    2. Payment Terms: Unless otherwise expressly agreed in writing: a.       All Fees shall be in U.S. dollars (USD); b.       AppDirect shall invoice Company as set out above; c.        Company will be billed on the credit card or ACH account for the corresponding invoice; d.       Each Party shall be responsible for payment of its own employment/payroll taxes; and e.       Subject to Section 2(d)  below, payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by Company. 

    3. Late Payments: Any failure to make a payment of any Fees or Taxes in strict conformity with the requirements of this Section entitles AppDirect (in addition to all other rights and remedies available to it) to: (i) terminate this Agreement for breach in accordance with this Agreement, or (ii) suspend, in whole or in part, the provision of any or all Services and/or licenses granted hereunder until such payment is received. Additionally, AppDirect shall have the right to assess and Company shall pay a charge, compounded monthly, of the lesser of (a) 1.5% per month or (b) the highest amount allowed by law on all past due amounts (excluding Disputed Amounts). Furthermore, upon any such failure all outstanding amounts shall become due and payable without further delay. 

    4. Audit: AppDirect shall have the right to audit and verify Company’s compliance with the Agreement, including the accuracy of the reporting, invoicing or payment by Company. Upon at least ninety (90) days prior written notice, AppDirect may conduct up to one audit every twelve (12) months. Company shall reasonably cooperate with AppDirect’s requests. Company shall provide Company or its third party representative with reasonable access to Company’s premises and systems during normal business hours at a mutually agreed on time without disrupting normal business operations. If Company has overpaid AppDirect, AppDirect shall immediately issue a credit to Company in the amount of such overpayment. If Company has underpaid AppDirect, Company shall immediately pay to AppDirect (a) the amount equal to such underpayment, and (b) if such underpayment equals to or is greater than ten percent (10%) of the actual sum due from Company to AppDirect during the audited period, all reasonable costs and expenses incurred by AppDirect as a result of such audit.

    5. Taxes: If a payment by Company is subject to any withholding, excise, sales, value added, or any other taxes in accordance with applicable laws, Company shall be liable for all such taxes.  As required, Company shall increase the Fees payable to AppDirect by an amount sufficient to fully offset the impact of such withholding tax or other taxes, such that AppDirect will receive the full amounts due under this Agreement.  Company agrees to use their best efforts to determine whether the withholding tax can be reduced or eliminated under an applicable tax treaty and AppDirect agrees to act in good faith to provide documentation necessary to evidence qualification under any such tax treaty. Company shall remit any such withholding to the relevant authority on a timely basis and provide to AppDirect documentation to evidence payment of such withholding taxes. 

  3. Intellectual Property

    1.   Software License:  AppDirect grants to Company during the term of this Agreement a limited, worldwide, nonexclusive, non-sublicensable (except to Customers and their End Users as provided herein), non-transferable (except as provided in hereunder) license to use, reproduce and display the Software, and solely for use in connection with Company’s, Customers and their End Users use of the Services.  

    2.  Documentation License: AppDirect grants to Company, Customers and their End Users a limited, worldwide, nonexclusive, non-sublicensable, non-transferable (except as otherwise provided hereunder) license to reproduce, distribute and display the Documentation, and solely for their end use and not for further distribution. 

    3.   Mutual Trademark License: During the Term, each party grants to the other party a limited, worldwide, non-exclusive, revocable, non-transferable, non-sub-licensable (except to the other party’s Affiliates and subcontractors assisting in the performance of this Agreement) and royalty-free licence to use, reproduce, distribute and display such party’s Trademarks made available as part of this Agreement, solely as reasonably required to perform its obligations under the Agreement, and only in accordance with such party’s reasonable trademark usage guidelines. Either party may revoke its Trademark license at any time for any or no reason. All use of the Trademarks, including the goodwill and reputation associated therewith, shall inure to the benefit of Trademark owner. 

    4.  Limited Company Data and Background IP License: AppDirect may require access and/or use of Company’s Background IP for the provision of the Services. Company grants to AppDirect and its Affiliates a limited, worldwide, nonexclusive, non-sub-licensable (except to AppDirect’s Affiliates and subcontractors assisting AppDirect in the performance of this Agreement), royalty-free license to use, reproduce, display and create derivative works of (i) Company’s Background IP and (ii) and Company Data, both solely for AppDirect’s performance under this Agreement and in accordance with this Agreement. 

    5.  Feedback:  Company is not obligated to provide any suggestions or feedback about AppDirect’s or its Affiliates’ products or services. To the extent Company or its End Users provide suggestions or feedback, Company grants AppDirect and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and/or incorporate any such suggestions or feedback into AppDirect’s and/or its Affiliates’ products and services. 

    6.  No Implied Licenses or Exclusivity: All rights not granted by AppDirect or Company, respectively, are expressly reserved. Except as expressly stated herein, nothing in this Agreement confers to either party any license or right of ownership in material owned by the other party, whether by implication, estoppel, or otherwise. The rights granted by AppDirect to Company in this Agreement are non-exclusive, and AppDirect and its Affiliates are free to market, sell, and distribute any part of the AppDirect Properties or any other product or service to or through any other person, corporation, or entity

  4.  Term and Termination 

    1.  Term: this Agreement shall become effective on the Effective Date, and shall remain in full force and effect through the Term until all subscriptions for Services under this Agreement have expired or have been terminated. The Term shall be as specified above issued under this Agreement that includes that latest termination date. 

    2.  Termination: Either party may terminate this Agreement and any then-current subscription prior to the end of the Term (i) if the other party is in breach or default of any obligation under this Agreement, and such breach or default is not cured for a period of thirty (30) days after receipt by the breaching party of a written notice from the non-breaching party informing of such breach or default, including a description and the details thereof (except that AppDirect may terminate with immediate effect in the case of a material breach by Customer), (ii) if the other party files for a voluntary petition of bankruptcy in any jurisdiction, is declared insolvent or bankrupt by a court of any competent jurisdiction, makes an assignment for the benefit of creditors, or is unable to pay its invoices as they mature, or (iii) as otherwise expressly permitted under this Agreement. The termination of this Agreement shall be without prejudice to any other rights and remedies available hereunder, at law or in equity. 

    3.  Effect of Termination: Subject to other applicable terms set forth in this Agreement, immediately upon any termination or expiration of this Agreement: i.  all Services rendered by AppDirect shall terminate and Marketplace shall be promptly deactivated; ii.          all licences granted under the Agreement shall terminate, including any licences granted to Customers and/or End Users under the Service Terms for the Services described above;  iii. Company shall cease all marketing, distribution, access and use of any and all Services provided;  iv.          Company shall advise in writing all Customers and End Users that all relevant Services provided under the Agreement are terminated and may no longer be used. Company shall remain responsible for migrating Customers and/or End Users away from Services;  v.          Company shall pay to AppDirect all outstanding Fees and other amounts incurred in relation with the Services within thirty (30) days of the expiration or the termination date thereof.

  5. Confidentiality 

    1.  Confidential Information: “Confidential Information” means: (i) information marked, designated or otherwise identified in writing by the Discloser as proprietary or confidential, (ii) information that, under the circumstances surrounding its disclosure or by reason of its nature, ought in good faith to be treated as proprietary or confidential by a reasonable person, and (iii) any information prepared by Recipient that contains, reflects or is based upon, any Discloser’s Confidential Information. Notwithstanding the foregoing, Confidential Information excludes (a) information that is or becomes in public through no fault of Recipient or its Authorised Recipients, (b) information that Recipient can prove with documented evidence was already known to Recipient at the time of its disclosure, (c) information that was obtained from a third party without violation of any confidentiality obligations; and (d) information that Recipient can prove was/is independently developed by Recipient, without use of Discloser’s Confidential Information. 

    2.  Protection: Recipient shall: (i) only use the Confidential Information to exercise its rights under this Agreement, and always as part of its business relationship with Discloser; (ii) use the same degree of care to prevent unauthorized access and use of Discloser’s Confidential Information as it does for its own confidential information of a similar nature, but in any event not less than reasonable care; (iii) only disclose Confidential Information only to Authorised Recipients on a need-to-know basis, provided such Authorised Recipients are subject to confidentiality obligations at least as restrictive as this Section. 

    3.  Legal Disclosure: If Recipient becomes legally compelled to disclose any Discloser Confidential Information, Recipient shall (i) immediately notify in writing Discloser, allowing the latter to seek a protective and other appropriate remedy; and (ii) only disclose the portion of Discloser Confidential Information that Recipient is legally compelled to disclose, and make commercially reasonable efforts to obtain confidential treatment of such information. 

    4.  Return of Information: Upon Discloser’s written request, Recipient shall promptly return (or at the Disclosing Party’s option, destroy) all originals, copies, reproductions and summaries of Discloser’s Confidential Information and certify in writing the return or destruction of the same; provided that copies may be retained solely for archival purposes pursuant to a party’s document retention policies. 

    5.  Unauthorised Use: Recipient shall notify in writing Discloser immediately upon discovery of any actual or threatened unauthorised use, disclosure, misuse or misappropriation of Discloser’s Confidential Information, including the details and the circumstances thereof. Recipient shall reasonably cooperate with Discloser to help Discloser correct the situation. 

    6.  Conflict and Survival: In the event of conflicts or inconsistencies between this Section and the provisions of a non-disclosure agreement executed between the parties or any Service Terms, as applicable, the provisions of this Section shall take precedence. This Section shall survive termination of this Agreement for a period of three (3) years from the date of termination or expiration hereof. 

  6.  Compliance, Privacy and Security 

    1.  Compliance with Laws: Each party shall comply with all applicable laws and regulations, including without limitation those relating to data privacy and data protection, anti-bribery and anti-corruption such as the UK Bribery Act and the US Foreign Corrupt Practices Act. Each party and its employees and agents will not directly or indirectly make or offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of any individual or any official of any government (including a decision not to act) or inducing such a person to use his or her influence to affect any such act or decision in order to assist in obtaining, retaining, or directing any such business. 

    2.  Access to Premises: If access to a party’s premises is necessary, the visiting party and its agents, employees, contractors, invitees and representatives shall comply with all of such party’s reasonable safety and security rules and policies. 

    3. Personal Data: AppDirect shall treat Personal Data that it receives, collects or processes as part of its obligations under this Agreement, whether from Company or from Customers and their End Users, in accordance with AppDirect Privacy Notice, the Data Protection Addendum (“DPA”), and applicable privacy and data protection law. In order to enable AppDirect to comply with the requirements above, Company shall comply with its obligations set forth in the DPA. 

    4. Performance Data: Company acknowledges and agrees that AppDirect may use performance data for its internal business purposes, such as analytics, quality assurance, and product and service development and improvement, activation, retention, churn rates, service level activity and Personal Data in association with the use of the Services. 

    5.   Anonymized Data: So long as each party complies with the provisions of Section 6.3, and provided that information is in an aggregate and anonymized form which does not specifically identify the Customers or End Users or the fact that such End Users are related in any way to Company, either party shall have the unrestricted right to collect, retain, use, transfer, or disclose, for any legitimate business purpose, aggregate and anonymized data regarding End Users and their use of and access to any AppDirect Services or products. 

    6.  Security Practices. AppDirect makes no representation nor warranty as to its security measures to protect Confidential Information and/or Customer Data other than it will make commercially reasonable efforts to maintain technical, administrative and physical security measures in accordance with industry standards. 

  7. Termination; Terms of Service Violations. 

    1. AppDirect. You agree that AppDirect, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with AppDirect or Your use of the AppDirect Marketplace and remove and discard all or any part of Your account, user profile at any time. You agree that any termination of Your access to the AppDirect Marketplace, or any account You may have, or portion thereof may be effected without prior notice, and You agree that AppDirect will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies AppDirect may have at law or in equity. 

    2. You. Your only remedy with respect to any dissatisfaction with (i) the AppDirect Marketplace, (ii) any of this Agreement, (iii) any policy or practice of AppDirect in operating the AppDirect Marketplace, or (iv) any content or information transmitted through the AppDirect Marketplace, is to terminate this Agreement and Your account. If You are dissatisfied with the Developer Applications You access through the AppDirect Marketplace, You may leave negative feedback for the applicable Developer. You may terminate this Agreement by discontinuing use of any and all parts of the AppDirect Marketplace and notifying AppDirect customer service at help@appdirect.com. 

  8. Indemnification.

    You agree to indemnify, defend, and hold AppDirect, its affiliated companies, contractors, employees, agents and its third party suppliers, licensors, and partners (including Syndication Partners) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the AppDirect Marketplace or any Service, Your violation of this Agreement, or any breach of Your representations, warranties, and covenants. AppDirect reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify AppDirect, and You agree to cooperate with AppDirect defense of these claims. AppDirect will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it. 

  9. Warranty Disclaimer.

    YOU EXPRESSLY AGREE THAT THE USE OF THE APPDIRECT MARKETPLACE IS AT YOUR SOLE RISK. THE APPDIRECT MARKETPLACE AND ANY DATA, INFORMATION, THIRD PARTY SOFTWARE, USER SUBMISSIONS, APPLICATIONS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APPDIRECT MARKETPLACE ARE PROVIDED BY APPDIRECT ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU MAY, HOWEVER, HAVE ADDITIONAL WARRANTY RIGHTS DIRECTLY FROM THE APPLICABLE DEVELOPER. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, APPDIRECT, AND ITS AFFILIATES, PARTNERS (INCLUDING SYNDICATION PARTNERS), AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. APPDIRECT, AND ITS AFFILIATES, PARTNERS (INCLUDING SYNDICATION PARTNERS), AND SUPPLIERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, FEATURES, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE APPDIRECT MARKETPLACE OR ANY REFERENCE MATERIALS WILL BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING, IF ENCOUNTERED, WILL BE CORRECTED. APPDIRECT, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS ABOUT DEVELOPERs OR DEVELOPER APPLICATIONS. ANY WARRANTY MADE REGARDING ANY DEVELOPER APPLICATION IS MADE DIRECTLY BY SUCH DEVELOPER. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE EXCLUSIONS OF WARRANTIES CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED. 

  10. Limitation of Liability and Damages. 

    1. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, WILL APPDIRECT OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY DEVELOPERS, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, THE APPDIRECT MARKETPLACE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH APPDIRECT, EVEN IF APPDIRECT OR AN APPDIRECT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, APPDIRECT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

    2. Limitation of Damages. IN NO EVENT WILL APPDIRECT OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY DEVELOPERS, PARTNERS (INCLUDING SYNDICATION PARTNERS), LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, OR YOUR USE OF THE APPDIRECT MARKETPLACE, OR YOUR INTERACTION WITH OTHER APPDIRECT MARKETPLACE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO APPDIRECT (OTHER THAN AMOUNTS PAID SPECIFICALLY FOR THE RIGHT TO ACCESS AND USE APPLICATIONS) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED US DOLLARS ($100 USD), WHICHEVER IS GREATER. 

    3. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT APPDIRECT HAS OFFERED THE APPDIRECT MARKETPLACE, ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND APPDIRECT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND APPDIRECT. APPDIRECT WOULD NOT BE ABLE TO PROVIDE THE APPDIRECT MARKETPLACE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

    4. Disputes With Third Parties. If You have a dispute with one or more Users, or with a Developer, You release AppDirect (and AppDirect’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 

  11.   Remedies, Governing Law and Venue 

    1. Remedies: Each party acknowledges and agrees that the other party may suffer immediate and irreparable harm as the result of breach of any of the nondisclosure, confidentiality and Intellectual Property protection provisions contained in this Agreement, for which monetary or other possible damages may not be sufficient or an adequate remedy. Therefore, each party agrees that the other party shall be entitled to seek injunctive and other equitable relief in the event of (i) an actual or threatened breach, violation, infringement or misappropriation of Intellectual Property Rights, and/or (ii) an actual or threatened breach or violation of the nondisclosure and confidentiality obligations contained herein, in all cases without the necessity of posting bond. 

    2. Governing Law: This SSA shall be governed, construed and enforced in accordance with the laws of the State of California, without regard to its conflict of laws principles that would otherwise cause the laws of another jurisdiction to apply. The Uniform Computer Information Transactions Act and the 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. Each party hereby expressively waives its right to a jury trial of any claim based upon or arising out of this Agreement or the subject matter hereof. 

    3. Venue: Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the Superior Court of San Franciso County and/or the United States District Court for the Northern District of California in connection with any dispute under the Agreement or the enforcement of any right or obligation under the Agreement. 

  12.   Marketing and Press Releases 

    1. Press Releases: The parties shall jointly agree on and issue a press release regarding their business relationship, including a positive quote from a senior level representative of each party. Neither party shall issue any press release regarding this Agreement or the parties’ relationship without the other party’s prior written approval. 

    2. Media Initiatives: If the parties agree to collaborate in a joint media initiative, which may for example include themed press releases, interviews, marketing campaigns, the costs associated with such media initiatives shall be first agreed to between the parties. 

    3. Referencing: Each party shall be entitled to make references to the other party, this business relationship and the business model, as well as to use the other party’s relevant Trademarks as part of its general customer listing, published lists, as well as in marketing and sales collateral (including without limitation brochures, sales decks, case studies, its corporate website, social media and other), and subject to the terms of the licences hereunder. Any other references by either party to the other party or such other party’s Trademarks beyond the purposes permitted under this Agreement shall be subject to such other party’s prior written approval. 

  13.  Miscellaneous.

    1. Notices: All notices, authorisations, and requests to AppDirect given or made in connection with this Agreement must be sent by registered mail, express courier, facsimile or electronic mail to (a) AppDirect at the addresses set forth below, and (b) Company at the address reflected on the AppDirect Marketplace. The notices shall be deemed delivered on the date shown on the postal return receipt, or on the courier, facsimile or electronic mail confirmation of delivery. The notices to AppDirect shall be addressed to legal@appdirect.com and AppDirect, Inc., 650 California Street, 25th Floor, San Francisco, CA 94108, Attn: Legal Department. 

    2.  Independent Contractors: Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, association or employment relationship between the parties, nor shall either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. 

    3. Collaboration: Each party shall provide reasonable assistance to the other party, at the other party’s expense, when needed in obtaining necessary permits, approvals, registrations and/or certifications relating to this Agreement.

    4. Export Controls: The AppDirect Properties and other technology made available under this Agreement may be subject to export laws and regulations of the United States and other jurisdictions. Company agrees to comply with all such regulations applicable to Company, including obtaining any necessary import licenses.  Each party represents that it is not named on any U.S. government denied-party list. Company shall not permit Customers or End Users to access or use any AppDirect Property in any U.S. embargoed country (including currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. or foreign export law or regulation. 

    5. Force Majeure: Non-performance of either party shall be excused to the extent that performance is rendered reasonably impossible by a Force Majeure event which is not in the reasonable control of a party, and is not caused by such party’s negligence or wilful act. However, this Section shall not relieve Company from its payment obligations set forth in this Agreement. 

    6.  Assignment: Neither party may assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld. However, either party may assign or transfer this Agreement in whole without the other party’s consent (a) to an Affiliate, or (b) in connection with a merger, corporate reorganisation, acquisition, transfer, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void. 

    7. Precedence of Terms: Unless otherwise agreed in writing, in the event of any conflict or inconsistency between this Agreement, the Service Terms, this Agreement, and/or its Exhibits, such conflict or inconsistency shall be resolved in the following order of priority: (i)  this Agreement (including business terms in the header), (ii) Service Terms, (iii) Exhibits.

    8. Interpretation: The headings of sections and subsections in this Agreement are used for convenience purposes only, and shall have no legal force or effect. Whenever used in this Agreement: (i) the terms in plural include the singular, and vice versa, and (ii) the terms “includes”, “including” and “such as”, mean respectively “including without limitation”, “includes without limitation” and “such as without limitation”. A reference to a statute or a regulation, or a provision thereof, is a reference to such statute, regulation, or provision as it is in force as of the Effective Date, and as it may be amended, supplemented or re-enacted thereafter, and includes any subordinate regulation and legislation. Unless expressly agreed to in writing, pre-printed or standard terms and conditions of any purchase or sales order shall not apply. Unless expressly provided otherwise, all operation hours are based on the Pacific Time Zone. 

    9.  Waiver: The failure of either party to fully enforce the performance by the other party of any provision shall not affect the right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof on any occasion be taken or held to be a waiver of the provision itself. 

    10.  Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law. Nonetheless, such provision shall continue to apply in full force and effect in all other jurisdictions, as the case may be. Moreover, the remaining provisions of this Agreement shall remain in full force and effect. 

    11.  Survival: Notwithstanding any other provision of this Agreement, the provisions which by their nature are intended to survive the termination of this Agreement shall survive termination of this Agreement and any permitted assignment of this Agreement. Without restricting the generality of the foregoing, but for further clarity, the following sections shall survive the termination or the expiration hereof (as the case may be): 2 (Payment, Fees and Taxes), 3 (Intellectual Property), 4 (Term and Termination), 5 (Confidentiality), 6.3 (Personal Data) with respect to each party for so long as such party holds Personal Data, 8 (Indemnification), 9 (Warranty), 10 (Limitation of Liability), 11 (Remedies, Governing Law and Venue), and 13 (Miscellaneous). 

    12. Entire Agreement: This SSA and all applicable Service Terms, Exhibits, amendments and all other documents and websites incorporated into this Agreement by reference, constitute the entire agreement between the parties with regard to the subject matter hereof, and supersede any other prior and contemporaneous communications and agreements. Any amendments to this Agreement or to any document related thereto shall be made in writing and signed by duly authorised representatives of each party. This SSA may be executed in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. 

    13.  Language: The parties have expressly requested that this Agreement as well as all related documents be drafted in English. 

EXHIBIT A

Definitions

1.       “Affiliates” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity.

2.       “AppDirect” means AppDirect, Inc.

3.       “AppDirect Property” means the Services, the Software, the Documentation and any Modifications to the foregoing.

4.       “Authorised Recipients” means the Receiving Party’s Affiliates and subcontractors, and its and their respective directors, officers, employees, agents, consultants, and legal or financial advisors.

5.       “Background IP” means any Intellectual Property owned, created, developed, leased and/or licensed by a party prior to, outside of, or independently from the SSA, including without limitation technology, tools, methods, algorithms, application programming interfaces, know-how and data. 

6.       “Company Data” means all data collected, gathered or entered into the Services by or on behalf of Company.

7.       “Company Property” means any and all Company Trademarks (as well as the goodwill), Company Background IP Intellectual Property, Intellectual Property Rights and all other rights, titles and interest in and to Company Data and all Confidential Information provided by Company (except for AppDirect Property that may be included, integrated, embedded or incorporated therein, which remains the sole and exclusive property of AppDirect).

8.       “Customer” means any customer of Company who uses the Services.

9.       “Discloser” means a party to this SSA who discloses Confidential Information under this SSA and/or such party’s Affiliates, subcontractors and its and their respective directors, officers, employees, agents, consultants, and legal or financial advisors.

10.    “Documentation” means End User Documentation and the System Documentation.

11.    “End User” means an end user of the Services.

12.    “End User Documentation” means the Customer help center content and forms, as updated from time to time, for the Services.

13.    “Fees” means the fees set forth during the sign-up process to be paid by Company for the use of the AppDirect Property pursuant this Agreement. 

14.    “Force Majeure Event” means: (a) any action taken by a government or public authority of any kind, including but not limited to embargo, export or import restriction, rationing, quota, restriction or prohibition, (b) any civil commotion or disorder, riot, invasion, terrorist act, threat of or preparation of war, (c) accident, explosion, fire, storm, electric failure, flood, earthquake, subsidence, epidemic or natural physical disaster, (d) strike, labour unrest, (e) failure caused by the Internet, backbone peering point issues, or DNS issues; or (f) any other similar event.

15.    “Intellectual Property” means all intellectual property, including without limitation (a) trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) copyrights, whether or not registered, (d) trade secrets, including without limitation know-how, technology methods, ideas and inventions, (e) software and computer code (whether in source code, object code or any other form) and (f) all applications and registrations of any of the foregoing.

16.    “Intellectual Property Rights” means all rights in and to the Intellectual Property.

17.    “Modifications” means any update, upgrade or modification made by or on behalf of AppDirect or an AppDirect Affiliate.

18.    “Personal Data” means any information relating to an identified or identifiable natural person.

19.    “Recipient” means the party that receives Confidential Information from the other party and such party’s Authorized Recipients.

20. “Services” means any services provided by AppDirect under this SSA, including without limitation marketplace platforms, SaaS, or other “as-a-service” solutions. 

21.    “Software” means (i) the object code version of any AppDirect or AppDirect Affiliate proprietary computer program identified upon sign-up and/or (ii) any software or software component, whether object code or source code (including without limitation APIs) made available by AppDirect or an AppDirect Affiliate to Company for use in connection with the Services; and (iii) Modifications of the foregoing. 

22.    “System Documentation” means infrastructure deployment documents and other user manuals, system specifications, hardware requirements, technical manuals, support documentation and tools and other instructions regarding the capabilities, operation, installation and use of the Services.

23.    “Taxes” means charges, fees, levies, imposts, duties, tariffs or other assessments imposed by or payable to any federal, state, local or foreign tax or governmental authority, including without limitation sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature.

24.    “Trademarks” means all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefore and all goodwill associated therewith.