Subscription Services Agreement

Last updated on December 10, 2021

This Subscription Services Agreement applies to Enterprise customers only, and specifically excludes all customers contracting under ‘self-service’ programs (e.g. AppDirect AppStore and AppDirect Starter AppStore) or ‘trial’ customers. Enterprise customers have a written order form tying back to these terms that is executed by AppDirect, Inc. and the contracting party.

This Subscription Services Agreement is made by and between AppDirect, Inc. and the contracting entity identified in a written Order Form signed by both Parties (“Company”) as of the date of the last signature therein (the “Effective Date”). Various capitalized terms are set forth on Exhibit A below.

1. Services Subscription

1.1 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 SSA and the relevant Order Form. 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 SSA.

1. 2 Service Terms: Terms of service, access and use that govern the Services (“Service Terms”), including support service levels, are referenced in the Order Form and/or available online at www.appdirect.com/legal.

1.3 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 1.6 of this SSA and/or Section 1.2 of the Service Terms; (ii) accesses and/or uses the Services in violation of any provision of this SSA and/or the Service Terms; or (iii) as otherwise as provided in this SSA 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 SSA, 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.

1.4 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 SSA and/or the Service Terms.

1.5 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.

1.6 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 SSA;

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

2.1 Fees: In consideration of the provision of Services under this SSA, as applicable, Company shall pay to AppDirect all Fees set forth in the Order Form. Fees exclude any and all applicable Taxes, which shall be paid by Company in addition to the Fees.

2.2 Payment Terms: Unless otherwise expressly agreed in writing as part of an Order Form:

a. All Fees shall be in U.S. dollars (USD);

b. AppDirect shall invoice Company as provided on the Order Form;

c. Unless otherwise agreed by the parties in an Order Form, Company shall pay all amounts due within thirty (30) days of the date of AppDirect’s invoice by way of electronic funds to the account number designated in writing by AppDirect;

d. Each Party shall be responsible for payment of its own employment/payroll taxes; and

e. Subject to Section 2.4 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.

2.3 Late Payments: Any failure to make a payment of any Fees or Taxes in strict conformity with the requirements of this Section 2 entitles AppDirect (in addition to all other rights and remedies available to it) to: (i) terminate this SSA for breach in accordance with Section 4, 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.

2.4 Audit: AppDirect shall have the right to audit and verify Company’s compliance with the SSA, 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.

2.5 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 SSA. 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

3.1 Software License: AppDirect grants to Company during the term of this SSA a limited, worldwide, nonexclusive, non-sublicensable (except to Customers and their End Users as provided herein), non-transferable (except as provided in Section 12.6) 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.

3.2 Documentation License: AppDirect grants to Company, Customers and their End Users a limited, worldwide, nonexclusive, non-sublicensable, non-transferable (except as provided in Section 12.6) license to reproduce, distribute and display the Documentation, and solely for their end use and not for further distribution.

3.3 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 SSA) and royalty-free licence to use, reproduce, distribute and display such party’s Trademarks made available as part of this SSA, solely as reasonably required to perform its obligations under the SSA, including under Section 11 (Marketing and Press Releases), 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.

3.4 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 SSA), 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 SSA and in accordance with this SSA.

3.5 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.

3.6 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 SSA 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 SSA 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

4.1 Term: This SSA 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 SSA have expired or have been terminated. The Term shall be as specified in the Order Form issued under this SSA that includes that latest termination date.

4.2 Termination: Either party may terminate this SSA and any then-current Order Form prior to the end of the Term (i) if the other party is in breach or default of any material obligation under this SSA, 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, (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 SSA. The termination of this SSA shall be without prejudice to any other rights and remedies available hereunder, at law or in equity.

4.3 Effect of Termination:

a. Order Form: Subject to other applicable terms set forth in this SSA, immediately upon any termination or expiration of an Order Form hereto:

i. all licences granted under such Order Form shall terminate, including any licences granted to Customers and/or End Users under the Service Terms for the Services described in such Order Form;

ii. Company shall cease all marketing, distribution, access and use of any and all Services provided under such Order Form;

iii. Company shall advise in writing all Customers and End Users that all relevant Services provided under such Order Form are terminated and may no longer be used;

iv. Company shall pay to AppDirect all outstanding Fees and other amounts incurred in relation with such Order Form within thirty (30) days of the expiration or the termination date thereof; and

b. SSA: Subject to other applicable terms set forth in this SSA, immediately upon any termination or expiration of this SSA:

i. all licences granted under this SSA shall terminate, including all licences described in Section 3, any licences that may be granted pursuant to a Schedule, as well as any licences granted to Customers and/or End Users under the Service Terms;

ii. Company shall cease all marketing, distribution, access and use of any and all Services;

iii. Company shall advise in writing all Customers and End Users that the Services are terminated and may no longer be used; and

iv. Company shall pay to AppDirect all outstanding Fees and other amounts within thirty (30) days of the termination or expiration date.

5. Confidentiality

5.1 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.

5.2 Protection: Recipient shall: (i) only use the Confidential Information to exercise its rights under this SSA, 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 5.

5.3 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.

5.4 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.

5.5 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.

5.6 Conflict and Survival: In the event of conflicts or inconsistencies between this Section 5 and the provisions of a non-disclosure agreement executed between the parties or any Service Terms, as applicable, the provisions of this Section 5 shall take precedence. This Section 5 shall survive termination of this SSA for a period of three (3) years from the date of termination or expiration hereof.

6. Compliance, Privacy and Security

6.1 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.

6.2 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.

6.3 Personal Data: AppDirect shall treat Personal Data that it receives, collects or processes as part of its obligations under this SSA, whether from Company or from Customers and their End Users, in accordance with AppDirect Privacy Notice, the Data Processing Addendum attached hereto as Exhibit B (“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 Exhibit B.

6.4 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.

6.5 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.

6.6 Security Practices. AppDirect’s security practices are set forth on Annex A to the DPA.

7. Warranties

7.1 AppDirect Warranties: AppDirect warrants to Company that the Services and Software will perform in all material respects in accordance with the System Documentation. Company must notify AppDirect of any warranty deficiency under this Section 7.1 within thirty (30) days from the provision of the deficient Services or Software. Company’s sole and exclusive remedy and AppDirect’s entire liability for breach of this warranty will be for AppDirect at its option to (a) repair the Service or Software or (ii) terminate Company’s subscription and/or license to the Service of Software and refund any prepaid, unused subscription or license Fees paid to AppDirect for the relevant Service or Software.

7.2 Company Warranties: Company warrants that (i) it has obtained and/or will obtain all licences, permits, approvals, registrations, certifications and/or authorisations necessary to perform its obligations under this SSA, and (ii) it will obtain all necessary Customer and End User consents to access, collect and process Customers’ and End Users’ Personal Data, to enable AppDirect to do same, and for AppDirect and Company to transfer such Personal Data to each other, all as may be necessary under this SSA.

7.3 No Other Warranties: Except for the express and limited warranties provided in Section 7.1 and Section 7.2, to the maximum extent permitted by applicable law: (i) all AppDirect Properties, Confidential Information, and all other products or services provided directly or indirectly by AppDirect, its Affiliates or subcontractors under this SSA (including and any and all Intellectual Property Rights related thereto, and in each case any and all components thereof) are furnished “as is” and “as available” without warranty, representation or condition of any kind, whether written, oral, express, implied, whether arising by equity, law, course of dealing or otherwise; and (ii) each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Neither AppDirect nor its Affiliates warrants that the AppDirect Properties will be error free or run uninterrupted.

8. Limitation of Liability

8.1 Limitation of Liability: Except for (i) AppDirect’s indemnification obligations under Section 9.1, (ii) Company’s indemnification obligations under Section 9.2(i), (iii) Company’s payment obligations under this SSA, and (iv) either party’s breach of Section 5, to the maximum extent permitted by applicable law, in no event shall either party or its Affiliates be liable to the other party or any other person or entity for an amount that exceeds the sum of the Fees received by AppDirect from Company during the six (6) months immediately preceding receipt of the notice advising the party of the existence of such claim.

8.2 Indirect Damages Disclaimer: Notwithstanding anything to the contrary, in no event shall either party be liable for any special, exemplary, indirect, incidental, consequential or punitive damages, including without limitation any damages for loss of profits, of projected savings or revenues, of opportunities, of goodwill or other similar economic prejudice, or loss or corruption of data, whether arising in contract, tort, or under any other legal theory whatsoever, even if such party has been advised of, knows or should know the possibility of such damages, or such damages have been reasonably foreseeable.

8.3 Exclusion of Certain Liabilities: Notwithstanding the foregoing, AppDirect shall have no liability whatsoever with regard to any claims that arise out of (a) any representation or warranty made by Company to Customers, End Users or any other third party not expressly provided in this SSA; (b) a breach of the Service Terms by a Customer, End User or Company (if applicable) when accessing or using the AppDirect Properties; (c) an action, omission or fault of Company, a Customer or an End User; or (d) the communication of any marketing or other message to Customers and/or End Users made for or on behalf of Company (including the content thereof) that may be processed through or otherwise enabled by the AppDirect Properties.

8.4 Scope. This Section 8 shall apply notwithstanding any failure of essential purpose of any limited remedy and regardless of the legal or equitable theory on which claims are brought (contract, tort, including negligence, or otherwise). Multiple claims shall not expand the limitations set forth in this Section 8.

9. Indemnification

9.1 Indemnification by AppDirect: AppDirect shall defend and indemnify Company, its Affiliates and subcontractors (including its and their respective directors, officers, employees, agents and representatives) against any third-party claim alleging that the AppDirect Properties directly (i) infringe its trademarks, copyrights or patents issued in the United States or Canada, or (ii) misappropriate its trade secrets. AppDirect shall pay the amount of any resulting adverse final judgment (or settlement to which AppDirect consents). This Section 9.1 states the entire liability of AppDirect, and Company’s exclusive remedy, with respect to any actual or alleged violation, infringement or misappropriation of any third-party Intellectual Property Right by AppDirect.

a. AppDirect’s obligation under Section 9.1 shall not apply to the extent that any claim is based on or results from: (i) any specifications, information, input, code, content or materials provided by or on behalf of Company, including Company’s Trademarks and Company Background IP, (ii) Company’s use of the AppDirect Properties after AppDirect notifies Company to discontinue such use, (iii) any combination of any of the AppDirect Properties with a non-AppDirect service, system, network, hardware, product, software, equipment, data or process to the extent of such combination, (iv) any use of, or access to the AppDirect Properties that is or are not in compliance with this SSA, the Service Terms or the Documentation, and (v) any Modification or alteration of the AppDirect Properties by any person other than AppDirect.

b. If a claim occurs or in AppDirect’s opinion is reasonably likely to occur, AppDirect may, at its expense but without obligation to do so, at its option (i) procure the right to continue to use the allegedly infringing item as permitted by this SSA, or (ii) modify or replace the item to make it non-infringing without substantially compromising its principal functions, or (iii) terminate this SSA upon written notice to Company and provide a prorated refund of any pre-paid unused subscription Fees.

9.2 Indemnification by Company: Company shall defend and indemnify AppDirect, its Affiliates and subcontractors (including its and their respective directors, officers, employees, agents and representatives) against any Customer, End User or third-party claim arising of or resulting from (i) Company Background IP, Company Trademarks or Company Data and/or (ii) Company’s non-compliance with Section 6.3.

9.3 Procedures: Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the indemnitor prompt written notice of any claim; (ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim, provided that the indemnitor will not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent; and (iii) provide the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense. The indemnitee may hire independent legal counsel or other advisors at its own cost and expense.

10. Remedies, Governing Law and Venue

10.1 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 SSA, 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.

10.2 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 SSA. Each party hereby expressively waives its right to a jury trial of any claim based upon or arising out of this SSA or the subject matter hereof.

10.3 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 SSA or the enforcement of any right or obligation under the SSA.

11. Marketing and Press Releases

11.1. 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 SSA or the parties’ relationship without the other party’s prior written approval.

11.2. 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.

11.3. 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 granted in Section 3. Any other references by either party to the other party or such other party’s Trademarks beyond the purposes permitted under this SSA shall be subject to such other party’s prior written approval.

12. Miscellaneous

12.1 Notices: All notices, authorisations, and requests to AppDirect given or made in connection with this SSA 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 in the latest Order Form. 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, 25^th Floor, San Francisco, CA 94108, Attn: Legal Department.

12.2 Independent Contractors: Nothing contained in this SSA 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.

12.3 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 SSA.

12.4 Export Controls: The AppDirect Properties and other technology made available under this SSA 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.

12.5 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 SSA.

12.6 Assignment: Neither party may assign or otherwise transfer this SSA 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 SSA 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 SSA shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 12.6 shall be void.

12.7 Precedence of Terms: Unless otherwise agreed in writing, in the event of any conflict or inconsistency between the Order Form, Service Terms, this SSA, and/or its Exhibits, such conflict or inconsistency shall be resolved in the following order of priority: (i) the Order Form, (ii) Service Terms, (iii) Exhibits, (iv) this SSA.

12.8 Interpretation: The headings of sections and subsections in this SSA are used for convenience purposes only, and shall have no legal force or effect. Whenever used in this SSA: (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.

12.9 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.

12.10 Severability: If any provision of this SSA 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 SSA shall remain in full force and effect.

12.11 Survival: Notwithstanding any other provision of this SSA, the provisions which by their nature are intended to survive the termination of this SSA shall survive termination of this SSA and any permitted assignment of this SSA. 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 (Limitation of Liability), 9 (Indemnification), 10 (Remedies, Governing Law and Venue), and 12 (Miscellaneous).

12.12 Entire Agreement: This SSA, including the applicable Order Form, all applicable Service Terms, Exhibits, amendments and all other documents and websites incorporated into this SSA 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 SSA 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.

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

EXHIBIT A

Definitions

“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.
“AppDirect” means AppDirect, Inc.
“AppDirect Property” means the Services, the Software, the Documentation and any Modifications to the foregoing.
“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.
“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.
“Company Data” means all data collected, gathered or entered into the Services by or on behalf of Company.
“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).
“Customer” means any customer of Company who uses the Services.
“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.
“Documentation” means End User Documentation and the System Documentation.
“End User” means an end user of the Services.
“End User Documentation” means the Customer help center content and forms, as updated from time to time, for the Services.
“Fees” means the fees set forth in an Order Form to be paid by Company for the use of the AppDirect Property pursuant this SSA.
“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.
“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.
“Intellectual Property Rights” means all rights in and to the Intellectual Property.
“Modifications” means any update, upgrade or modification made by or on behalf of AppDirect or an AppDirect Affiliate.
“Order Form” means the order form(s) accompanying this SSA.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Recipient” means the party that receives Confidential Information from the other party and such party’s Authorized Recipients.
21. “Services” means any services provided by AppDirect under this SSA, including without limitation marketplace platforms, SaaS, or other “as-a-service” solutions.
“Software” means (i) the object code version of any AppDirect or AppDirect Affiliate proprietary computer program identified on an Order Form; 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.
“SSA” means this Subscription Services Agreement, including all documents, exhibits, schedules and Service Terms referenced herein.
“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.
“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.
“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.