Resale Provider Agreement

This Resale Provider Agreement (the “Agreement”) is made by and between AppDirect CSP, Inc. (“AppDirect”) and Company (as set forth in the Resale 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 grants to AppDirect a worldwide, non-exclusive right and license to purchase from Company and to market and sell the Services (as set forth in the Resale Provider Registration From) (a) to end users or (b) to technology advisors or sub-resellers who will in turn make the Services available to end users (“Technology Advisors”).

1.2 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 may identify itself as a “reseller” of Company, solely in connection with its promotion and resale of the Services. All goodwill arising from AppDirect’s use of the Trademarks inures to the benefit of Company. AppDirect (and its Technology Advisors) may provide the Services to end users with AppDirect’s branding (or Technology Advisors’ branding).

2. Purchase Ordering

2.1 Service Orders. AppDirect will complete and submit to Company a written order (acceptable via email) (an “Order”) for each subscription to a Product (a “Subscription”) that AppDirect desires to purchase for resale. Each Order (or request for a price quote) will include the following information: (a) the end user’s name and contact information, (b) the terms of the Subscription purchased, and (c) the end user’s desired start date for the Subscription.

2.2 Acceptance of Orders. Within three (3) business days of each Order submission, Company shall accept or deny the Order and, if accepted, transfer to AppDirect (or to the end user, as requested by AppDirect) the Service to be purchased by the end user. Company may reject an Order if it determines, acting reasonably and with supporting written evidence, that: (a) Company is currently actively engaged in a sales opportunity with the end user; or (b) the end user is a competitor of Company. In the event Company fails to accept or respond to an Order submission within three (3) business days, the Order will be deemed accepted by Company.

2.3 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 end user or prospective end user who AppDirect introduced to Company or who Company learned of pursuant to this Agreement; or (b) any sales representative of AppDirect who AppDirect introduced to Company or who Company learned of pursuant to this Agreement.

3. Payment and Pricing

3.1 Prices. The price charged to AppDirect for Services shall be as quoted in the price schedule set forth in the Resale Provider Registration Form (the “Subscription Fees”). Company may amend the Subscription Fees at the end of each Term, provided that (a) such amended Subscription Fees are provided to AppDirect at least two hundred forty (240) days prior to expiration of the then-current Term and (b) such amended Subscription Fees shall only apply to new Orders submitted during the Term following the then-current Term.

3.2 Payment Terms. AppDirect will pay all Subscription Fees due under this Agreement in U.S. Dollars. AppDirect will submit payments to the address provided by Company, or, if Company approves payment by electronic funds transfer, using the routing information provided by Company. Payments are due net thirty (30) days from the Company’s acceptance of an Order.

4. Term and Termination

4.1 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.

4.2 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.

4.3 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.

4.4 Active Subscription Buyout. Upon the expiration or termination of this Agreement, AppDirect and Company shall negotiate in good faith the buyout of all remaining active Subscriptions from AppDirect by Company (the “Buyout”). If the Parties fail to reach an agreement with respect to the Buyout, all remaining active Subscriptions will be subject to Sections 4.5 (Transition Period) and 4.6 (Cooperation).

4.5 Transition Period. Following expiration or termination of this Agreement, there shall begin a transition period to allow for end user transition (the “Transition Period”). The Parties shall continue to be bound by this Agreement during the Transition Period solely with respect to any active Subscriptions, provided that such active Subscriptions shall terminate upon the termination or expiration of the then-current term thereof without opportunity for renewal. This Agreement shall fully and finally terminate upon expiration of the final Transition Period for the final Subscription, subject to Section 11.7 (Survival).

4.6 Cooperation. As applicable during the Transition Period, at least thirty (30) days prior to the effective date of termination or expiration of each end user’s Subscription, or as promptly as possible if less time is available, AppDirect shall notify the end user of the impending termination. The Parties will cooperate in good faith to (i) provide such end user instructions regarding how it may continue to receive the applicable or comparable Services and (ii) timely transition end users seeking to maintain continuity of such Services. In no event will Company communicate with an end user during the Transition Period without AppDirect’s prior written approval.

5. 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.

6. 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 or as provided in this Agreement.

7. Confidential Information

7.1 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.

7.2 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.

8. Warranties

8.1 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.

8.2 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.

9. 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 the Services infringes a patent, copyright, trade secret, trademark or any other intellectual property right of a third party.

10. Limitation of Liability

EXCEPT FOR A PARTY’S BREACH OF SECTION 6 (INTELLECTUAL PROPERTY) AND SECTION 7 (CONFIDENTIAL INFORMATION, COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 (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.

11. Miscellaneous

11.1 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 in the Resale 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).

11.2 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.

11.3 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, and AppDirect may transfer Subscriptions between, to and from Technology Advisors with end user consent. 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.

11.4 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.

11.5 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.

11.6 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.

11.7 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 (Non-Circumvention), 4.4 (Transition Period), 4.5 (Cooperation), 5 (Non-Solicitation), 6 (Intellectual Property), 7 (Confidential Information), 9 (Indemnification), 10 (Limitation of Liability) and 11 (Miscellaneous).

11.8 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.

11.9 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.

11.10 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.