AppDirect Referral Provider Agreement

This Referral Provider Agreement (the “Agreement”) is made by and between AppDirect Agent Services, Inc. (“AppDirect”) and Company (as set forth in the Referral Provider Registration Form) as of the date of the last signature set forth in the Referral Provider Registration Form (the “Effective Date”). AppDirect and Company are referred to collectively as “Parties” and individually as “Party”.

1. Appointment and License Grant

1.1 Non-Exclusive Appointment. Company hereby appoints AppDirect as its non-exclusive marketplace channel partner to directly or indirectly connect Company with prospective Customers (as defined below) with respect to the Services (as set forth in the Referral Provider Registration Form).

1.2 Technology Advisors. AppDirect may, at AppDirect’s expense, retain such technology advisors, sales agents and direct sales representatives (collectively, “Technology Advisors”) as AppDirect deems necessary or advisable to perform the services required of AppDirect under this Agreement. AppDirect will collect, process and remit to Technology Advisors the Commissions (as defined below) resulting from Commissionable Revenue (as defined below) generated by Technology Advisors.

1.3 Trademarks. Company grants AppDirect a non-exclusive fully paid-up worldwide license to use Company’s trade names, service marks, trademarks, logos and other marks (collectively, “Trademarks”), and AppDirect may identify itself as a “authorized referral partner” of Company, solely in connection with its promotion and marketing of the Services. All goodwill arising from AppDirect’s use of the Trademarks inures to the benefit of Company.

2. Rights and Obligations of AppDirect

2.1 Promotion and Marketing. AppDirect shall use commercially reasonable efforts to promote and market, directly or via Technology Advisors, Services to Customers and prospective Customers.

2.2 No Authority. AppDirect shall have no authority to bind Company by contract or otherwise and in no event shall AppDirect be liable to Company for any obligation of a Customer under a contract with Company.

2.3 Audit. AppDirect shall have the right, upon no less than 10 days prior written notice, to audit the Records (as defined below) for Commissionable Revenues. Company shall cooperate fully in such audit. In the event that the audit reveals that Company has underpaid AppDirect by five percent (5%) or more of amounts due hereunder in any Commission payment period, all costs of audit shall be borne by Company and the amount of all underpayments disclosed as a result of the audit (plus any late fees) shall be paid to AppDirect within five (5) business days of the close of the audit.

3. Rights and Obligations of Company

3.1 Marketplace. Company shall be authorized to market and advertise the Services through AppDirect’s online marketplace.

3.2 Cooperation. Company will (a) comply with all reasonable requests of AppDirect necessary to the performance of AppDirect’s rights and obligations under this Agreement, and (b) copy AppDirect on written correspondence (email or otherwise) to Customers regarding business issues, including, but not limited to, billing issues, upgrades and Customer complaints.

3.3 Records. Company shall keep and maintain complete and accurate records of all of its financial interactions with Customers (including all invoices and records of payments) during each month in which each Customer receives any Services from Company (“Records”). Company shall maintain and preserve those records for at three (3) years from the date in which the information becomes available (or such longer period as may be required by Applicable Law), whichever is later.

3.4 Commission. Company shall pay AppDirect the highest Commission percentage offered by Company to any other channel partner of Company, including but not limited to any agent, master agent, distributor and/or value-added reseller (VAR). In the event Company provides any of the Services to any such other channel partner at a higher Commission percentage than the Commission percentage provided to AppDirect, Company must notify AppDirect in writing of such higher Commission percentage, and this Agreement shall be automatically amended to reflect same as of the original date of the effectiveness of the higher Commission percentage.

3.5 Non-Circumvention. Company agrees that during the Term and for a period of one (1) year following the termination of this Agreement, Company shall not directly or indirectly circumvent AppDirect by soliciting or otherwise doing business with: (a) any Customer or prospective Customer who AppDirect introduced to Company or who Company learned of pursuant to this Agreement; or (b) any Technology Advisor who AppDirect introduced to Company or who Company learned of pursuant to this Agreement.

4. Commissions

4.1 Commissionable Revenue. “Commissionable Revenue” means all amounts collected by Company for Services provided to Customers, minus taxes (state and federal) and any other governmentally mandated charges or surcharges.

4.2 Payment of Commissions. Company shall pay AppDirect a commission (“Commission”) on all Commissionable Revenue for each customer procured, directly or indirectly, by AppDirect (“Customer”) by the 15th day of the month following the month in which payment for the applicable Services is collected by Company. Company’s obligation to pay Commissions to AppDirect shall apply to all Services sold to a Customer, regardless of whether they are available and identified as a Service at the time the Customer is accepted, whether they are a part of the original service order, whether AppDirect places the order for the Service, whether AppDirect is involved and whether payments from the Customer are collected prior to or after the termination of this Agreement. The Commission rate(s) shall be as set forth in the Referral Provider Registration Form. Company shall have the right to amend the Commission rate(s) upon no less than thirty (30) days prior written notice to AppDirect (the “Adjustment Notice Period”). In no event may Company reduce the Commission rate(s) on a retroactive basis, and any such reduction shall only apply to prospective Customers first introduced by AppDirect after the end of the Adjustment Notice Period.

4.3 Commission Statements. Along with each monthly Commission payment, Company will furnish AppDirect with a written or electronically transmitted report containing the following information: (a) the name of each Customer from which Commissionable Revenue is received; (b) the dollar amount of Commissionable Revenue received from each Customer; (c) the applicable Commission rate; and (d) any chargebacks or offsets made against Commission payments. Company shall not have the right to assess any chargeback or effect any offset unless and until the required information has been provided to AppDirect and AppDirect has failed to dispute the projected chargeback within the Dispute Period (as defined below).

4.4 Commission Dispute. Without limitation to AppDirect’s audit right set forth in Section 2.3 (Audit), AppDirect may dispute any Commission payment by providing Company with a written notice of such dispute, including the amounts claimed to be due, no later than one hundred eighty (180) days after the date of reception of the commission statement underlying the disputed payment (the “Dispute Period”).

4.5 Post-Termination Payment of Commissions. Notwithstanding any other provision of this Agreement to the contrary, Company shall continue to pay AppDirect full Commissions after termination or expiration of this Agreement for all Customers procured by AppDirect on behalf of Company for so long as such Customers continue to utilize the Services, continuations thereof, renewals thereof (including but not limited to automatic and month-to-month renewals), substitutions therefor and/or additions thereto. Company agrees that Commissions will continue to be paid in accordance with this Agreement on all continuations, renewals (including but not limited to automatic and month-to-month renewals) and replacements of, and additions to, customer accounts, contracts and/or Services, regardless of whether such customer accounts, contracts or Services are continued, renewed, replaced or added to by AppDirect, by another person acting on behalf of Company or automatically. The termination or expiration of this Agreement for any reason (including but not limited to termination by Company for cause pursuant to Section 5.2 (Termination for Cause)) shall in no event terminate Company’s obligation to continue to pay any and all Commissions owed to AppDirect pursuant to this Section 4 (Commissions). Company understands and acknowledges that the obligations to continue to pay Commissions set forth in this Section are an essential part of this Agreement.

4.6 Late Fees. Any Commissions not paid by the due date specified herein shall accrue interest at a rate of one and one-half percent (1.5%) per month or the maximum amount allowable under applicable state law, whichever is less.

4.7 Commission Termination, Chargeback and Offset. Commissions may be subject to termination, chargeback and offset only in the following circumstances: (a) Commission payments with respect to discontinued or disconnected Services will terminate on the date of such discontinuance or disconnection, regardless of the reason for such discontinuance or disconnection; provided, however, that if the Services are reinstated, Company shall pay AppDirect Commissions on such Services; and (b) if Company does not receive a Customer payment upon which a Commission has been paid, then the Company may chargeback the full amount of such Commission; provided, however, that if Company subsequently collects payment from such Customer, Company shall pay AppDirect Commissions on such payment. The Company will notify AppDirect not less than thirty (30) business days prior to any such termination, chargeback or offset.

4.8 Discounted Commissions. The Parties acknowledge that from time to time discounted pricing is necessary to win or maintain business. Should Company need to discount pricing, Company and AppDirect will mutually agree to new Commission terms, in writing, prior to presenting pricing to any Customer or prospective Customer. If the amount of the discount is not mutually agreed upon in writing, regular Commission rates will apply.

5. Term and Termination

5.1 Term. This Agreement shall remain in effect for an initial term of five (5) years, beginning on the date hereof and shall automatically renew for successive one (1) year terms (the “Term”) unless and until either Party gives written notice of non-renewal at least one hundred eighty (180) days in advance of the end of the then current Term.

5.2 Termination for Cause. Either Party may terminate this Agreement 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, provided, however, that if Company is the terminating Party and the material breach was committed by a Technology Advisor, Company may not terminate this Agreement if AppDirect terminates the ability of such Technology Advisor to market and promote the Services within thirty (30) days of receipt of notice from Company detailing same.

5.3 Immediate Termination. Either Party may terminate this Agreement 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.

5.4 Effect of Termination. Notwithstanding the termination or expiration of this Agreement, the obligations of each party referenced in Section 12.7 (Survival) shall survive and continue in full force and effect. Except as otherwise expressly permitted herein, Company’s exclusive remedy in the event of termination or expiration of this Agreement shall be to refuse to accept any new Customers from AppDirect after such termination or expiration.

6. Non-Solicitation

During the Term of this Agreement and for a period of 12 months following the termination or the expiration of this Agreement, Company shall not make any solicitation or inducement to employ AppDirect’s personnel or Technology Advisors. For purposes of this Section, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section.

7. Intellectual Property

The Parties acknowledge and agree that they retain ownership rights in and to their respective intellectual property, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works, moral rights and all other rights, whether presently existing or later developed by them (collectively “Intellectual Property”). Neither Party will use the other Party’s Intellectual Property without the consent of the other Party.

8. Confidential Information

8.1 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 or as provided in this Agreement.

8.2 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.

9. Warranties

9.1 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.

9.2 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.

10. Indemnification

Company agrees to defend, indemnify and hold harmless AppDirect, and its officers, directors, employees, agents, Technology Advisors, affiliates, attorneys, and successors and assigns (each an “AppDirect Indemnitee”), from and against any third party claim or action: (a) based on Company’s breach of its obligations, covenants or warranties as set forth in this Agreement, or (b) that any Service infringes a patent, copyright, trade secret, trademark or any other intellectual property right of a third party.

11. Limitation of Liability

EXCEPT FOR A PARTY’S BREACH OF SECTION 7 (INTELLECTUAL PROPERTY) AND SECTION 8 (CONFIDENTIAL INFORMATION, COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (INDEMNIFICATION) AND A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, 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.

12. Miscellaneous

12.1 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 (3rd) 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 Referral Provider Registration Form (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).

12.2 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.

12.3 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.

12.4 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.

12.5 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.

12.6 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 the 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.

12.7 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): 2.3 (Audit), 3 (Rights and Obligations of Company), 4 (Commissions), 6 (Non-Solicitation), 7 (Intellectual Property), 8 (Confidential Information), 10 (Indemnification), 11 (Limitation of Liability) and 12 (Miscellaneous).

12.8 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.

12.9 Entire Agreement. This Agreement, including all applicable 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.

12.10 Execution. This Agreement 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. Any signature page delivered electronically or by facsimile (including transmission by Portable Document Format or other fixed image form) shall be binding to the same extent as an original signature page.