AppDirect Marketplace End-Customer Agreement

This Customer Agreement (the “Agreement”) governs the relationship between AppDirect CSP, Inc. (“AppDirect”)and Customer (as set forth in the sales order and/or statement of work (each referred to as an “Order”) submitted by AppDirect to Customer for the services described therein (the “Services”), unless there is a separate agreement executed between Customer and AppDirect. AppDirect and Customer are referred to collectively as “Parties” and individually as “Party”.

1. Services

1.1. Acceptance. Customer’s use of the Services or payment of invoices or fees for Services, in full or in part, is deemed acceptance by Customer of the Order and the terms and conditions of this Agreement.

1.2. AppDirect Services. AppDirect will use commercially reasonable efforts to provide the Services to Customer. Except as otherwise agreed in the Order, Customer is responsible for providing its own computers, internet access, and other equipment and software (the “Equipment”) meeting the specifications required to access and use the Services, as may be provided by AppDirect or the Third-Party Services (as defined below) provider required to access and use the Services.

1.3. Service Terms. The AppDirect Marketplace Terms and Conditions, the AppDirect Marketplace Privacy Policy, and terms that govern AppDirect services (including SmartSupport Services), each set forth at www.appdirect.com/legal, are incorporated by reference in this Agreement (collectively, the “Services Terms”). The Service Terms may be amended or supplemented from time to time by AppDirect.

1.4. Third-Party Services. The Services may include the resale or other provision by AppDirect of third-party products or services (the “Third-Party Services”). Customer’s use of Third-Party Services, and AppDirect’s liability with respect to Third-Party Services, are each subject to the terms, conditions and agreements, including service level agreements, provided by the respective Third-Party Services providers (the “Third-Party Terms”), links to which may be found at https://www.appdirect.com/third-party-terms. Customer may be required to accept the Third-Party Terms directly with the Third-Party Services provider prior to using the Services. To the extent AppDirect electronically accepts any Third-Party Terms as part of setting up any Services, Customer irrevocably authorizes AppDirect to act as Customer’s limited agent for this purpose and acknowledges and agrees that AppDirect is in no event a party to any such Third-Party Terms. AppDirect will not be liable for the acts or omissions of Third-Party Services providers, and AppDirect is not be responsible for any remedies set forth in the Third-Party Terms. AppDirect will use commercially reasonable efforts to seek and pass along to Customer available remedies for issues with Third-Party Services. Customer’s remedies with respect to any issues with Third-Party Services that affect multiple customers are limited to a proportionate amount of any remedies received by AppDirect as may be set forth in the Third-Party Terms. For purposes of this foregoing sentence, “proportionate” means a percentage equal to the product of (i) the resources utilized by Customer divided by (ii) the total resources utilized by all of the affected customers, as determined by AppDirect acting reasonably.

1.5. Technical Support. For certain Services, technical support will be provided directly by the Third-Party Services provider or via its designated support partner. Technical support for other designated Services may be provided by AppDirect, and no Third-Party Services provider is obligated to provide direct technical support to Customer under this Agreement, for such designated Services, unless specifically set forth otherwise in the Order. If AppDirect’s relationship with a Third-Party Services provider is terminated, technical support for the related Services may be provided by the Third-Party Services provider directly or via another reseller and Customer and/or its end-users will be required to sign up for such Services with another with the Third-Party Services provider directly or with another reseller.

1.6. Administrative Account. AppDirect may maintain an administrative account for Customer’s Services solely for technical support and account management purposes.

2. Payment Terms

2.1. Fees. Customer will pay the fees for Services as set forth in the Order. Charges for additional services required for implementation or use of such Services (beyond the scope of implementation or use as defined in the Order) shall be at AppDirect’s then-current charges. Billing to Customer for recurring Services charges will begin on the earlier of (the “Start Date”): (i) the date that the Services are activated for Customer, or (ii) thirty (30) days after the date of the Order and will continue as specified on the Order. All recurring charges are invoiced in advance. On the Start Date, Customer will be invoiced for all non-recurring charges, including any initial setup fee, unless otherwise specified in the Order. All other charges for Services may be billed at times designated by AppDirect. The fees for Services may be increased from time to time and reflected in invoices submitted by AppDirect. Customer’s payment of any such invoices shall constitute Customer’s agreement to such increased fees. As its sole remedy, Customer may terminate the related Order in the event that it objects to any fee increase by providing written notice to AppDirect within thirty (30) days of the fee increase.

2.2. Payment of Invoices. Customer shall pay all invoices within thirty (30) days after date of invoice. AppDirect may require Customer to pay by credit card or other electronic payment mechanism, and Customer hereby authorizes AppDirect to automatically draft payment at or near the date of invoice. AppDirect may also require Customer to make a deposit. Any deposit will be held by AppDirect as security for payment of amounts owed by Customer’s and may be applied against any past-due amounts (and Customer may be required to replenish such deposit). Upon termination of this Agreement, the amount of any deposit then remaining will be credited to Customer’s account and any remaining credit balance will be refunded to Customer. Any deposit held by AppDirect shall not accrue interest, and AppDirect shall not be required to place any deposit into an escrow account. All amounts owed shall be paid in U.S. Dollars without offsets or deductions of any kind. All payment obligations are non-cancelable, and all amounts paid are non-refundable.

2.3. Late Fees. Past due amounts bear interest at a rate of 1.5% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full. Customer agrees to pay AppDirect’s reasonable costs of collection of past due amounts, including collection agency fees, attorneys’ fees and court costs.

2.4. Taxes. Customer will, at AppDirect's direction, promptly reimburse AppDirect or pay directly to the applicable taxing authority all applicable taxes, fees, duties, charges, or regulatory surcharges that arise in any jurisdiction on the provision, sale or use of any Services and permitted by applicable law to be passed through to Customer, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise and other taxes or federal or state universal service charges, except for taxes based on AppDirect’s net income and taxes assessed on AppDirect’s property (collectively, “Applicable Taxes”), and any penalties and interest related to such Applicable Taxes except to the extent that Customer provides AppDirect an appropriate exemption certificate related to any Applicable Tax. AppDirect will give prospective effect to any valid exemption certificate to the extent that it applies to any Services and shall cooperate at Customer’s sole expense in pursuing any claim for refund of Applicable Taxes paid by Customer.

3. Term and Termination

3.1. Term. The Order will remain in effect for the term specified therein, unless earlier terminated as set forth herein or by the applicable Third-Party Services Provider pursuant to the Third-Party Terms, and will automatically renew for successive one (1) year terms, unless and until either Party gives written notice of non-renewal at least sixty (60) days in advance of the end of the then current term (the “Term”). This Agreement will remain in effect for so long as Customer has an active Order with AppDirect.

3.2. Termination for Cause. Either Party may terminate an Order for cause if the other Party commits a material breach of this Agreement that remains uncured after the expiration of thirty (30) days’ written notice specifying the basis for the breach.

3.3. Immediate Termination. Either Party may terminate all Orders immediately upon written notice if the other Party (a) becomes insolvent or makes a general assignment for the benefit of creditors; (b) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the Party due to the financial condition of the Party; (c) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, and such proceeding or action has not been dismissed within a sixty (60) day period; or (d) has wound up or liquidated its business, voluntarily or otherwise. AppDirect may terminate an Order immediately if Customer fails to pay any amount due thereunder within seven (7) days after the payment due date. AppDirect may suspend all or part of the Services immediately if Customer fails to pay any amount due within seven (7) days after the payment due date or if Customer materially breaches this Agreement.

3.4. Effect of Termination or Non-Renewal. Upon termination or non-renewal of an Order Form or any individual Services for any reason, Customer will no longer have any rights to access the related Services or any Customer data stored or otherwise associated with the related Services.

4. Covenants

4.1. No Infringement. Customer will not, and will not permit others, including its employees and agents, to reproduce, reverse-engineer, de-compile, disassemble, modify, adapt, market, resell, sublicense, or sublease any Services. No license, title, or right is granted or transferred to Customer in or to any trademarks, copyrights, patents, trade secrets or other intellectual property rights of AppDirect (the “Proprietary Information”), and Customer shall not have any right to use any Proprietary Information, or any AppDirect software or hardware.


4.2. Cooperation. Customer will reasonably, timely, and in good faith cooperate with AppDirect and AppDirect’s designees and agents to facilitate the implementation and performance of Services and shall provide AppDirect with reasonable access to the necessary information, including but not limited to, system or platform design, network architecture, IP addresses, hardware, and software (the “Customer Information”) to implement and provide the Services described in the Order. It is essential to AppDirect’s performance hereunder that AppDirect have reasonable access to Customer Information. AppDirect assumes no responsibility to obtain from Customer’s licensors necessary licenses or consents to monitor or access Equipment to perform the Services. If Customer modifies its Customer Information in a manner that requires a change to the Services, then Customer will pay any reasonable time and materials that AppDirect incurs to troubleshoot, modify, or make repairs necessary to adapt to the Customer modifications. Unless specified otherwise in the Order, Customer is responsible for purchasing and maintaining all manufacturer warranties, updates, patches upgrades, and service plans reasonably required to ensure that the Equipment remains in working order through the Term and AppDirect shall not be responsible for any delay or failure by Customer to purchase or maintain such items.

4.3. Security. Customer agrees to use reasonable security precautions in connection with the use of the Services (including encrypting any information that is subject to special legal or regulatory security requirements and that is transmitted to or from, or stored by Customer on, the services or storage devices used by Customer) and, require its customers and end users to use reasonable security precautions. Customer is otherwise responsible for the security of the Equipment. Customer shall be responsible for unauthorized use of the Services by any person, unless such unauthorized use results from AppDirect’s failure to perform its obligations hereunder.

5. Confidential Information

5.1. Confidential Information. “Confidential Information” means any information disclosed or otherwise made available previously or in the future by either Party (in such capacity, a “Disclosing Party”) to the other Party (in such capacity, a “Receiving Party”), either directly or indirectly, on or after the date hereof, in writing or orally, which is designated as “confidential”, “proprietary”, “competition-sensitive” or some similar designation or which, under the circumstances surrounding disclosure, including oral disclosure or disclosure by demonstration, would be understood to be confidential, proprietary or competition-sensitive by a reasonable person; provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.

5.2. Non-Use and Limited Disclosure. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.

6. Warranties

6.1. Mutual Warranties. Each Party represents and warrants that: (a) it has the legal power to enter into and perform its obligations under this Agreement and has obtained and will maintain any and all consents, approvals, licenses, or other authorizations necessary for the performance of its obligations under this Agreement; and (b) it will not make any representations or warranties on the other Party’s behalf without the other Party’s prior written consent.

6.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES DO NOT MAKE OR GIVE ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WHATSOEVER REGARDING THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT OR ANY RELATED MATTER, AND EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES OF EVERY NATURE AND KIND WHATSOEVER, EXPRESS OR IMPLIED BY LAW, INCLUDING ANY STATUTE OR REGULATION, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR, PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. APPDIRECT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

7. Indemnification

Each Party agrees to defend, indemnify and hold harmless the other Party, and its officers, directors, employees, agents, affiliates, attorneys, and successors and assigns, from and against any third-party claim or action related to the breach of its obligations, covenants or warranties as set forth in this Agreement.


8. Limitation of Liability

EXCEPT FOR A PARTY’S BREACH OF SECTION 4.1 (NO INFRINGEMENT) OR SECTION 5 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL A PARTY BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPDIRECT’S LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THE AGREEMENT, THE ORDERS AND THE SERVICES WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY CUSTOMER TO APPDIRECT DURING THE PRIOR THREE (3) MONTH PERIOD.

9. Miscellaneous

9.1. Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) when delivered in person; (b) when transmitted by facsimile, via electronic mail or via AppDirect’s marketplace (with confirmation of delivery in each case); (c) on the third (3^rd) business day following the mailing thereof by certified or registered mail, return receipt requested; (d) when delivered by an express courier (with written confirmation) to the Parties at the addresses set forth on the Order (or to such other address, email address, or facsimile number as such Party may have specified in a written notice given to the other Parties).

9.2. 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.

9.3. Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of AppDirect. 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.

9.4. Waiver. No delay or failure of either Party to enforce any provision of this Agreement will operate as a waiver of the right to enforce that or any other provision of this Agreement, nor will any single or partial exercise of any such rights preclude any other or further exercise thereof. To be effective, any waiver must be in writing, signed by the Party providing the waiver.

9.5. Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of California without regard to its conflicts of law principles. The Parties agree that the state and federal courts located in San Francisco, California shall have sole and exclusive jurisdiction and venue over any matter arising out of this Agreement and each Party hereby submits to the venue and jurisdiction of such courts. Each Party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.

9.6. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and shall be construed so as to best effectuate the intention of the Parties in executing it.

9.7. 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): 5 (Confidential Information), 7 (Indemnification), 8 (Limitation of Liability) and 9 (Miscellaneous).

9.8. 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”. Neither Party hereto shall be considered the drafter of this Agreement or any provision hereof for the purpose of any statute, case law, rule of interpretation or construction that would or might cause any provision or ambiguity to be construed against the drafter hereof.

9.9. Entire Agreement. This Agreement and the Service Terms constitute the entire agreement between the Parties with regard to the subject matter hereof, and supersede any other prior and contemporaneous communications and agreements. In the event of any conflict or inconsistency between this Agreement and the Service Terms, such conflict or inconsistency shall be resolved by observing the following order of precedence: (a) the Order, (b) this Agreement, and (c) the Service Terms. Any amendments to this Agreement, the Service Terms or to any document related thereto shall be made in writing and signed by duly authorised representatives of each Party.