AppMarket Service Terms
AppMarket Service Terms
These AppMarket Service Terms are incorporated into the Software Subscription Agreement (the “SSA”) between AppDirect and Company referenced therein. The AppMarket Service Terms apply to AppMarket Listing Edition, AppMarket Store Edition and AppMarket Ecosystem Edition. Certain sections identified below apply only to certain AppMarket editions.
All capitalized terms not defined in these Service Terms will have the meaning assigned to them in the SSA.
1. Usage and Restrictions
1.1 AppMarket. AppMarket is a Service under the SSA. The maintenance and operation of AppMarket is exclusively controlled by AppDirect, and AppMarket is hosted on AppDirect designated hardware and equipment.
1.2 Company Terms of Service and Privacy Policy. Customer and End User access to AppMarket will at all times be pursuant to Company provided service terms (“Company TOS”) and Company’s privacy policy. The Company TOS shall at all times include the minimum terms set forth as Exhibit A. The Company privacy policy shall at all times disclose to Customers and End Users the manner in which data will be collected and used by AppDirect on AppMarket which is described in the SSA, Data Protection Addendum and, as applicable, the AppDirect Privacy Notice.
1.3 Store Curation. Company shall retain control of content, pricing, curation, and approach on AppMarket. AppDirect shall reasonably assist Company in providing information and guidance regarding best practices.
1.4 AppMarket Updates. AppDirect may, from time to time and in its sole discretion, update AppMarket including, without limitation the functionality, user interface, Product Interface, usability and Documentation.
1.5 Bandwidth Usage [Listing only]. This Section 1.5 applies only to AppMarket Listing Edition.
The usage of AppMarket has data bandwidth limitations. If AppDirect determines that Company’s bandwidth usage significantly exceeds the average bandwidth usage of AppMarket, AppDirect reserves the right to charge Company an appropriate fee commensurate with the excessive bandwidth usage.
1.6 Distribution of Products [Store and Ecosystem only]. This Section 1.6 applies only to AppMarket Store Edition and AppMarket Ecosystem Edition.
a. Company Products [Store and Ecosystem only]. Company may make available on AppMarket any Company Products.
b. Catalog Products [Store and Ecosystem only]. AppDirect makes available for acquisition certain Third-Party products through the AppDirect Network Catalog. Company can select which Catalog Product, if any, it wants to make available on Company’s AppMarket so long as Company enters into a direct agreement with the Developer to offer such Catalog Product. The direct agreement will include, among other things, the terms of distribution and the fee arrangement. Such direct agreement shall not include any restrictions or limitations on the Developer participating in other AppDirect Platforms. Company shall be responsible for any breach or noncompliance of Company’s obligations under a direct agreement. Company shall require each Developer of Catalog Products to directly register as a Developer and agree to AppDirect’s Developer terms of service and privacy notice.
c. Non-Catalog Products [Ecosystem only]. Company can offer Non-Catalog Products, if any, it wants to make available on Company’s AppMarket so long as Company enters into a direct agreement with the Developer to offer such Non-Catalog Product. The direct agreement will include, among other things, the terms of distribution and the fee arrangement. Such direct agreement shall not include any restrictions or limitations on the Developer participating in other AppDirect Platforms. Company shall be responsible for any breach or noncompliance of Company’s obligations under a direct agreement. Company shall require each Developer of Non-Catalog Products to directly register on Company’s AppMarket. Company solely controls and is responsible for the on-boarding, approval and publishing of Non-Catalog Products that are made available through Company’s developer center to Company’s AppMarket.
d. Core Distribution Program [Store and Ecosystem only]. AppDirect and certain Developers have entered into agreements under which such Developers granted AppDirect the rights to authorize resale of the Developer’s Third-Party products by AppDirect’s customers through the AppDirect Platform without a direct agreement between Company and Developer. If Company wishes to have the right to resell such Third-Party products through its AppMarket, Company shall agree to AppDirect’s Core Distribution terms.
2. Revenue Share Fees [Store and Ecosystem only]. This Section 2 applies only to AppMarket Store Edition and AppMarket Ecosystem Edition, and applies to all Products sold through any AppMarket (including Company sub-marketplaces and/or Affiliate sub-marketplaces, if Company has purchased the Network Add-On).
2.1 Revenue Share Fee Structure. For all Products sold through any AppMarket (including Products purchased or provisioned in a manner facilitated by a Reseller through AppReseller if applicable), Company shall collect all revenue generated through such sales and deposit the resulting Top Line Revenue in its merchant account. Subject to the provisions of Section 2.3 below, the following provisions shall govern the distribution of such funds:
a. AppDirect Fees. Company shall pay AppDirect all AppDirect Fees in an amount equal to the applicable percentage of Net List Price Revenue, as the case may be, associated with sales of Products as indicated in the applicable Order Form.
b. Third Party Fees. Third Party Fees are not payable on Company-Owned Products. Company shall be responsible for paying the applicable Third Party Fees to Developers of Products.
2.2 Company Share. Company shall have the right to retain the balance of Net Revenue and Net List Price Revenue it receives for Product sales that remains after Company has paid all applicable AppDirect Fees and Third Party Fees.
2.3 Discounting and Net List Price. Notwithstanding anything to the contrary, if Company sells any Product on AppMarket at a discounted price (i.e. a price that is less than the List Price agreed to with Developer), then Company shall pay AppDirect Fees and Third Party Fees based on the Net List Price Revenue not Net Revenue unless the Developer of the Product and /or AppDirect, as applicable, has agreed in writing to sell at the discounted price. In order to have the Developer and/or AppDirect share the liability for the discount Company must obtain each party’s agreement to do so prior to Company making available the Product at the discounted price.
2.4 Ancillary Fees. Company shall be responsible for paying any and all Ancillary Fees associated with the operation of the AppMarket.
2.5 Third Party Invoicing. For any Third Party Fees payable by Company to AppDirect, Company shall pay the invoiced Third Party Fees within five (5) days of the date of invoice. Company shall be solely responsible for paying each Third Party Developer of a Product that is the subject of a direct agreement all fees due to such Developer.
3. Customer Support. Support Services for AppMarket shall be provided as set forth at Exhibit B.
4. Definitions.
4.1 “Ancillary Fees” means all fees and charges relating to the operation of a party’s merchant account, payment gateway, credit card transactions, electronic transfers, foreign exchange transactions, back-office accounting services and other ancillary fees incurred in connection with its processing of transactions on AppMarket.
4.2 “AppDirect Fees” means the portion of Net Revenue (or Net List Price Revenue) that AppDirect is entitled to receive or retain for purchases of Products on AppMarket.
4.3 “AppDirect Network Catalog” means AppDirect’s catalog of products and services referred to herein as Catalog Products that is compiled by AppDirect which Catalog Products are registered and published on the AppDirect Platform for distribution through such platform.
4.4 “AppDirect Platform” means AppDirect’s software as a service solution which provides an interface through which a person may search and view content and hyperlink to websites as provided by an AppDirect customer and which includes the features and functionalities set forth in the Documentation.
4.5 “AppMarket” means a branded version of the AppDirect Platform that is configured using Company’s trademarks.
4.6 “AppReseller” means an AppDirect service that enables Company to manage and arrange for resellers (each such unique user that is a reseller, a “Reseller”) to sell products and services on an instance of the AppDirect Platform.
4.7 “Catalog Products” means Third-Party products or services that are included in the AppDirect Network Catalog.
4.8 “Company-Owned Products” means Company’s proprietary products and services that are sold under Company trademarks. For avoidance of doubt, proprietary products means a product that is developed and built by or exclusively for Company (which products specifically excludes any Third Party product white-labeled for Company) and Company-Owned Products does not include any product or service that is proprietary to a Third Party Developer but which Company white-labels and sells under its own trademarks or co-branded with a Developer’s trademarks, and such products and services shall be considered Other Products.
4.9 “Company Existing Products” means all Third Party products and services for which Company has an existing agreement with the Developer prior to the SSA Effective Date pursuant to which Company distributes or resells the Developer’s Products.
4.10 “Company Products” means Company Existing Products and Company-Owned Products.
4.11 “Developer” means a Third Party provider of any Product.
4.12 “List Price” means the price at which the Developer of a Product agrees it will sell its Products on the AppMarket.
4.13 “List Price Revenue” means the amounts that would have been paid by Customers for the rights to access and use Products purchased on the AppMarket if the Customers paid the List Price for such Products.
4.14 “Net List Price Revenue” means List Price Revenue less deductions for fraud, returns, charge-backs, and bad debt.
4.15 “Net Revenue” means the Top Line Revenue less deductions for fraud, returns, charge-backs, and bad debt.
4.16 “Non-Catalog Products” means all Third Party products and services that are not included in the AppDirect Network Catalog.
4. 17 “Other Products” means all products and services offered on the AppMarket, including Catalog Products, that are not Company Products.
4.18 “Products” means all products and services offered on the AppMarket.
4.19 “Support Services” means the support services to be provided by AppDirect as specified in the applicable Order Form.
4.20 “Third Party” means persons, corporations and entities other than Company, AppDirect or any of their Affiliates.
4.21 “Third Party Fee” means that portion of Net Revenue or Net List Price Revenue paid to the Developer of a Product for Customers’ purchases of the right to access and use a Product purchased on the AppMarket.
4.22 “Top Line Revenue” means after subtraction of sales tax or VAT, the actual amounts paid by Customers for the right to access and use a Product either: (a) purchased on AppMarket; or (b) which was purchased or provisioned in a manner facilitated using AppReseller, if applicable.
EXHIBIT A
APPMARKET MINIMUM TERMS
The Company TOS provided by Company to its Customers and End Users regarding access to and use of AppMarket shall include the minimum terms set forth in this Exhibit A. Company may substitute “AppDirect” with terms such as “supplier” and/or “licensor”, as applicable in the Company TOS.
- Terms of Purchase. The products and services offered on AppMarket are made available by third party providers that are not affiliated with AppDirect. Customer agrees that AppDirect is not responsible for such third-party products and services. Third party products and services are provided on AppMarket subject to that third party’s terms of use. Customer will have the opportunity to review and accept such terms of use before proceeding with access to and use of such products and services. Customer shall agree to abide by the applicable third party’s terms of use and end user license agreement.
- Ownership; Proprietary Rights. AppDirect retains all right, title and interest in and to the AppDirect Platform. AppDirect reserves all rights not expressly granted.
- Warranty Disclaimer. Company makes no warranties on behalf of AppDirect. Company disclaims all warranties, including implied warranties, with respect to AppMarket on behalf of AppDirect and its affiliates.
- Limitation of Liability and Damages. In no event is AppDirect liable for any damages (including but not limited to consequential damages or lost profits) to Customer or End Users.
- AppDirect Third Party Beneficiary. AppDirect is a third-party beneficiary of the Company TOS as it relates to AppMarket. AppDirect is entitled to enforce such terms of the Company TOS as if it were a party to the Company TOS.
EXHIBIT B
APPMARKET SUPPORT SERVICES TERMS
These AppMarket Support Services Terms govern AppDirect’s provision of Support Services to Company at the service level (“Service Level”) reflected in the applicable Order Form(s).
- Support Services
- Scope. Subject to the terms contained herein, AppDirect shall address any help request, question, issue or other Service request relating to the AppDirect Platform submitted by Company (“Support Requests”) in accordance with Table 1 below; provided however, AppDirect shall not have any obligation to address Support Requests relating to the following: (i) any request that relates to the operation of a specific Product; (ii) misuse of the AppDirect Platform, use of the AppDirect Platform not in accordance with the Documentation or in a manner not permitted under the SSA; (iii) any problems caused by or arising out of the operation of Company’s software, software systems or other resources; (iv) physical damage, misuse, unauthorized modification, or faulty installation or use of the AppDirect Technology not in accordance with the Documentation or in a manner not permitted under the Agreement; (v) exposure to the elements or other treatment beyond the reasonable limits of normal use; (vi) failures or inadequacies of infrastructure or network facility provided by Company including, but not limited to, security breaches of the hosting infrastructure, and inadequate resources to handle traffic on the AppDirect Platform; or (vii) adaptations, configurations or modifications made by Company or any other third party; requests to add functionality or enhance performance beyond the specifications.
TABLE 1
Service Level | |||
Standard | Sapphire | Diamond | |
Support Hours | 9:00 am to 5:00 pm | 24 Hours/day | 24 Hours/day |
Initial Response Target | Acknowledgement within 2 Business Days (Company local time) of receipt of email or support portal request | Acknowledgement within 6 hours of receipt of email or support portal request | Acknowledgement within 15 minutes of receipt of email, support portal request or telephone call |
Support Operational Reviews | No | No | Yes |
Named Support Engineer | No | No | Yes |
Multiparty Bridge Calls | No | No | Yes |
Number of Customer Contacts | One Named Contact | Unlimited | Unlimited |
b. No Product Support. Support Services will be provided in English language only, are limited solely to support of the AppDirect Platform and specifically exclude any and all support specific to Products. AppDirect is not obligated to provide Support Services for Products under these Support Services Terms.
c. Professional Services. AppDirect, in its sole discretion, may offer professional services to assist with the resolution of issues that are not within the scope of the Support Services. Such professional services, if any, will be made subject to a separate agreement and/or statement of work.
d. Support Levels.
(i) Level 1 Support. Company shall provide Level 1 support to its Customers and End Users through its help desk and the AppDirect Platform’s Documentation Center and other online resources. Company shall employ internal procedures so it can escalate Support Requests internally to ensure that only qualified Support Requests are escalated to Level 2 Support.
(ii) Level 2 Support. AppDirect shall provide Level 2 Support to Company personnel. Support Requests escalated to Level 2 have not been resolved at Level 1 and require further assistance and investigation. If the Support Request is related to functioning of a Product, AppDirect will use commercially reasonable efforts to assist Company in transferring the Support Request to Company or the applicable third party.
(iii) Level 3 Support. Level 3 Support includes the AppDirect development team for deeper technical issues that require engineers to resolve the Support Request.
e. Help Desk. AppDirect staffs its support desk on Business Days specific to the country where the support team supporting Company is based. Support Requests may be reported to AppDirect via the support email address, support portal or telephone number.
f. Response. AppDirect will use commercially reasonable efforts to provide a response for each Support Request within the timeframes in Table 1. The proposed response times included in Table 1 are aspirational only and in no event will failure to achieve any of the targets or outcomes, including but not limited to acknowledgements and communications, be deemed a breach of these Service Terms or the SSA.
g. Named Contact. Only Company personnel may contact AppDirect help desk for Level 2 Support and Level 3 Support as provided in Table 1 below. In no event shall Customers or End Users contact AppDirect directly for support. Company help desk support shall not contact AppDirect engineering personnel directly.
h. Support Operational Reviews. Depending on Customer’s Service Level, AppDirect support staff may be available for regular support operational reviews to review and track Support Requests. Support operational reviews may be conducted up to one (1) time per week for up to one (1) hour between the hours of 9:00 am and 5:00 pm on Monday through Friday (Customer’s local time).
i. Named Support Engineer. Depending on Customer’s Service Level, AppDirect may assign a support engineer to regularly interact with Company on Support Requests; provided that AppDirect may assign a different named support engineer for different Support Requests.
j. Multiparty Bridge Calls. Depending on Customer’s Service Level, AppDirect support staff may schedule multiparty bridge calls to review Support Requests between AppDirect’s support staff, Company and other parties, including but not limited to third party developers of Products. Timing, frequency and duration of such multiparty bridge calls shall be determined by AppDirect on a case by case basis.
k. Support Request Information. Company’s submission of Support Requests to AppDirect shall include relevant information in order for AppDirect to service the Support Request, including at minimum the following:
(i) AppDirect Platform URL
(ii) Description of Support Request
(iii) Impacted End User email address(es)
(iv) Customer name
(v) Order number (if applicable)
(vi) Error message (if applicable)
(vii) Steps to reproduce
(viii) Additional notes and images (if applicable)
AppDirect’s obligations to service Support Requests is contingent on Company providing the minimum support request information referenced in this Section k.
l. Additional Conditions. AppDirect’s obligation to provide Support Services are subject to Company’s compliance with all of the following:
(i) Company not having any outstanding delinquent payments for Fees as of the date the Support Request is reported;
(ii) Company having valid access to the Service;
(iii) Company providing all reasonably required technical resources required to assist and cooperate with AppDirect in troubleshooting and seeking to resolve any Support Request;
(iv) Company procuring, installing and maintaining all equipment, telephone lines, communication interfaces and other hardware and software necessary to access the Service;
(v) Company providing contact information of Company representatives who are responsible for communicating with AppDirect and have the requisite technical expertise and authorization to assist with Support Requests.
2. Availability
AppMarket will be available in all material respects (i.e. capable of displaying information and conducting transactions as contemplated in the Documentation) 99.9% of the time during any thirty (30) consecutive day period, excluding Excused Downtime. “Excused Downtime” includes: (a) outages for scheduled maintenance; (b) outages as a result of emergency maintenance which could not have been reasonably foreseen and is necessary in order to prevent an outage; (c) a Force Majeure event under the SSA; (d) failure or deficiency of website availability caused by or associated with outages elsewhere on the Internet (excluding AppDirect’s Internet access) that hinder Customers’ and End Users’ access to their accounts.