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AppDirect Cloud Service Commer

Last Edited: April 28th, 2016

MASTER SERVICE AGREEMENT

THIS MASTER SERVICE AGREEMENT FOR THE APPDIRECT CLOUD SERVICE COMMERCE PLATFORM (“APPDIRECT PLATFORM”) LISTING EDITION (“LISTING PLATFORM”) ALONG WITH THE TERMS OF THE ONLINE ORDER PLACED BY YOU (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN APPDIRECT, INC. (“APPDIRECT”) AND YOU, AN INDEPENDENT COMPANY ("COMPANY", "You", "Your"), AND GOVERNS THE TERMS UNDER WHICH YOU MAY USE THE APPLICABLE EDITION OF THE APPDIRECT PLATFORM. THE TERMS OF THE AGREEMENT, INCLUDING ANY SUPPLEMENTARY TERMS, ARE MEANT TO SUPPORT ALL EDITIONS OF THE APPDIRECT PLATFORM AND TO THE EXTENT THAT YOU ARE SUBSCRIBING TO ANY OR ALL OF THESE SERVICES THE APPLICABLE SECTIONS OF THIS AGREEMENT WILL APPLY TO YOU. IF YOU ARE CREATING AN ACCOUNT ON BEHALF OF A COMPANY, REFERENCES TO "YOU", "YOUR" AND "COMPANY" HEREIN REFER TO THAT ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. BY CLICKING "I AGREE", CREATING AN ACCOUNT, AND/OR OTHERWISE ACCESSING OR USING THIS SITE TO ACCESS THE APPDIRECT PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THE COMPANY BEING BOUND BY THE FOLLOWING TERMS. APPDIRECT MAY MAKE CHANGES TO THESE TERMS FROM TIME TO TIME AND WILL REVISE THE “LAST UPDATED” DATE PROVIDED ABOVE. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS FREQUENTLY AND TO REMAIN INFORMED OF ANY CHANGES TO THEM. THE THEN-CURRENT VERSION OF THESE TERMS WILL SUPERSEDE ALL EARLIER VERSIONS. YOU AGREE THAT YOUR CONTINUED USE OF THE APPDIRECT PLATFORM AFTER SUCH CHANGES HAVE BEEN PUBLISHED WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH REVISED TERMS. IF YOU DO NOT AGREE TO THE CHANGES YOU MUST STOP USING THE APPDIRECT PLATFORM IMMEDIATELY.

If there is an inconsistency or conflict between the terms and conditions of this Agreement, and any terms included in the online order process through which your order is placed (“Order”) the terms of the Order shall control. The terms and conditions contained in any other document such as on Your invoice, any quotation or other document will not be binding and will not supersede, supplement, or modify the Agreement. AppDirect and You may each be referred to individually herein as a “Party” and collectively as the “Parties”. The capitalized terms used herein shall have the meanings ascribed to them.

I. GENERAL TERMS

The terms and conditions of this Section II shall apply to both the Listing Edition of the AppDirect Platform. All references to the “AppDirect Platform” in the General Terms shall apply equally to the edition of the AppDirect Platform selected by You in the Order.

1. USAGE AND RESTRICTIONS

1.1 Provision of the AppDirect Platform. Subject to the terms and conditions of the Agreement and in consideration of the fees paid under this Agreement:

a. AppDirect will operate, and maintain the AppDirect Platform; provide hosting and support services for the AppDirect Platform as set forth in Section 10 below (“Support Services”); and allow You and Your customers (“Customers”) and any of Your Customer’s end users (“End Users”) to access and use the AppDirect Platform. The hosting, maintenance and operation of the AppDirect Platform, including the installation of Updates and Upgrades, will be exclusively controlled by AppDirect, and the AppDirect Platform will be hosted on AppDirect designated hardware and equipment. You shall be responsible for posting and maintaining Company Content on the AppDirect Platform. AppDirect shall have no obligations to post, maintain, ensure the accuracy of or otherwise manage or handle the Company Content.

b. AppDirect grants You a limited, nonexclusive, worldwide, royalty-free, fully paid-up license to (i) use, reproduce and modify the Documentation as reasonably required for You to exercise You rights to access, use and make available the AppDirect Platform; and (ii) right to market and promote the AppDirect Platform directly to your Customers and End Users.

c. You grant AppDirect a license to use, reproduce and distribute the Company Content as reasonably required for AppDirect to perform its obligations under the Agreement. AppDirect’s use of Your Trademarks shall be in accordance with Your then-current trademark usage and style guidelines or specific instructions. Except as expressly provided herein, AppDirect will cease using Your Trademarks immediately upon expiration or termination of the Agreement.

d. AppDirect is free to market, sell, and distribute the AppDirect Platform and its other products and services to or through any other persons, corporations and entities other than Your Company, AppDirect or any of their affiliates at any time during and after the Term.

1.2 Terms of Service and Privacy Policy. All Customer and End User access to the AppDirect Platform will be pursuant to Terms of Service (“Company TOS”) and a Privacy Policy (“Company Privacy Policy”) that shall be provided by You, and You shall at all times comply with the terms of such Company TOS and Company Privacy Policy. You will indemnify and hold AppDirect harmless from all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting from Your or Your Customer(s)’ failure to comply with the terms of this Section.

The Company TOS shall include the following minimum terms for AppDirect’s benefit and protection:

a. (i) the products and services listed on the AppDirect Platform are from Developers who are not affiliated with AppDirect; (ii) the Customers and each End User agrees that AppDirect is not responsible for or a provider of Products; (iii) purchases of Products made on third party websites to which a Customer or End User links from the AppDirect Platform are between the Customer or End User and the Developer, not between AppDirect and the Customer or End User and are subject to those terms of use, if any, posted by the Developers.

b. You shall make no warranties on behalf of AppDirect regarding the AppDirect Platform and shall specifically disclaim on behalf of AppDirect, all warranties, including implied warranties, with respect to the AppDirect Platform.

c. You shall not commit AppDirect to be liable for any damages (including, but not limited to consequential damages or lost profits) and shall specifically disclaim AppDirect’s direct liability to Customers and End Users.

d. AppDirect retains all right, title and interest in and to the AppDirect Platform. AppDirect reserves all rights not expressly granted in the Agreement.

e. Customers and End Users will not (i) decompile or reverse engineer the AppDirect Platform or take any other action to discover the source code or underlying ideas or algorithm of any components thereof; (ii) copy the AppDirect Platform; (iii) post, publish or create derivative works based on the AppDirect Platform; or (iv) remove any copyright notice, trade or service marks, brand names and the like from the AppDirect Platform, related documentation or packaging.

f. AppDirect is a third party beneficiary of the above described terms as they are set forth in the Company TOS and is entitled to enforce them as if it were a party to the Company TOS.

The Company Privacy Policy shall include the manner in which data is collected, used and disclosed in the operation of the AppDirect Platform including:

a. (i) when an End User uses the AppDirect Platform, it may send one or more session or persistent “cookies” to his computer; (ii) when an End User uses the AppDirect Platform or opens an HTML email generated using the AppDirect Platform, it may automatically record certain information from the End User’s web browser including for example standard log files, “clear gifs, Internet Protocol address, another device address or ID, web browser type, device type, the pages he or she viewed on the AppDirect Platform, and the dates and times that he or she visited; (iii) the AppDirect Platform does not respond to web browser “do not track” signals or other mechanisms. If, in the future, AppDirect creates a program or protocol to respond to such web browser “do not track” signals, it will inform the End User of the details of that protocol.

b. the operator of the AppDirect Platform may use: (i) the information End Users provide or that it collects to operate, maintain, and enhance the AppDirect Platform; (ii) End User email addresses to contact them for administrative purposes or for customer purposes; (iii) the information that End Users provide or that is collected to understand and analyze the usage trends and preferences of users, to improve the way the AppDirect Platform works and looks, and to create new features and functionality; (iv) “automatically collected” information and “cookies” information to personalize the individual’s experience on the AppDirect Platform, monitor and analyze the effectiveness of the AppDirect Platform and monitor aggregate site usage metrics, and

c. Company passes the End User’s credit card information and other PII required to process the transaction (“Payment Information”) and passes the Payment Information to the AppDirect billing engine which sends the information to the payment gateway. The Payment Information is never stored in the AppDirect Platform. The payment gateway responds that the credit card is approved (or denied). AppDirect responds to the Developer indicating that the credit card is valid. There is now an active subscription for that End User in the AppDirect Platform. AppDirect will continue to use the Payment Information to charge that End User on their billing cycle. You may disclose End User information that You believe, in good faith, (i) is appropriate or necessary to take precautions against liability; (ii) to protect AppDirect and others from fraudulent, abusive, predatory, or unlawful uses or activity; (iii) to investigate and defend against any third party claims; (iv) to assist government agencies; or (v) to protect the security or integrity of the AppDirect Platform. The terms in this section shall only apply after the Free Trial period if You are using the Store Edition.

1.3 Curation. You shall at all times retain control of AppDirect Platform content, pricing, curation, and approach as controlled from the AppDirect Platform.

1.4 Free Trial. In the event that You are accessing the AppDirect Platform through a free trial program (“Free Trial”) AppDirect shall have the right to discontinue Your access to the AppDirect Platform at the end of the Free Trial Term (as defined below) and You will thereafter be restricted from accessing the AppDirect Platform unless and until You place an Order to upgrade the Free Trial account into a paid subscription. AppDirect reserves the right to delete Free Trial accounts at any time for any reason following the expiration of the Free Trial Term. Notwithstanding Sections 6 and 9 (Limited Warranties and Disclaimers, and Limitation of Liability) during the Free Trial access and use of the AppDirect Platform is provide ‘As Is’ without any warranty.

1.5 Restrictions. You are responsible for Your, Your Customers’ and End Users’ compliance with this Agreement. You shall use the AppDirect Platform in compliance with applicable law and shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the AppDirect Platform in any way; (ii) send or store any data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) use the AppDirect Platform to store or transmit libelous, infringing, obscene, threatening or otherwise unlawful or tortious material, or to store or transmit material harmful to children or in violation of third-party privacy or confidentiality rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the AppDirect Platform or the data contained therein; (vi) modify, copy or create derivative works based on the AppDirect Platform, or any portion thereof; or (vii) access the AppDirect Platform for the purpose of building a competitive product or service or copying its features or user interface. AppDirect may, without liability, suspend Your access to the AppDirect Platform to the extent necessary: (a) following a possible or actual security breach or cyber-attack on AppDirect, (b) in order to protect AppDirect’s systems; or (c) if required by a governmental entity or law enforcement agency. You shall receive notification of such suspension to the extent and in the manner that AppDirect provides a notification to all of its affected customers.

2. OWNERSHIP

2.1 AppDirect. As between the Parties, AppDirect shall own and obtain, all right, title and interest in and to (a) the AppDirect Technology and (b) all Intellectual Property Rights therein. Other than as expressly set forth in the Agreement, AppDirect is not transferring or granting You any right, title, or interest in or to or granting to You any license or other permission in or to any or all of items (a) and (b).

2.2 Company. As between the Parties, You own and shall retain, all right, title and interest in and to (a) the Company Content, (b) the Company Core Products, and all Intellectual Property Rights in (a) or (b).

2.3 Data. Provided that information is in an aggregate form which does not specifically identify the Customers or End Users or the fact that such Customers or End Users are related in any way to Company, either Party shall have the unrestricted right to collect, retain, use, transfer, or disclose aggregate data regarding End Users and their use of and access to the AppDirect Platform for any legitimate business purpose.

3. CONSIDERATION

3.1 Fees. After the Free Trial period You shall pay AppDirect the fees specified in the Order for access and use of the AppDirect Platform. Any monthly fees shall be due in advance each month during the Term (“Monthly Service Fees”), and beginning on the Order Effective Date, AppDirect shall have the right to invoice You upfront for the Monthly Service Fees.

3.2 Invoicing and Payment. AppDirect shall invoice You for all fees and You shall pay all AppDirect invoices within thirty (30) days of the date the invoice unless otherwise specified herein. Each invoice shall be sent to Company’s address as specified on the Order. All amounts owed hereunder 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. If AppDirect permits You to make payments by credit card or other form of electronic money transfer, You agree to provide valid and keep updated account information as needed for AppDirect to process payments; such payments will be chargeable by AppDirect on the date of AppDirect’s invoice and You hereby authorize AppDirect to charge all future invoices (in AppDirect’s election) to such credit card or other form of electronic money transfer. If any fee due hereunder is not paid by the date such payment is due, (a) You shall pay interest to AppDirect on such unpaid amount upon written reminder and notice of delay, calculated at a rate equal to the lesser of one and half percent (1½%) per month or the highest level of interest legally permitted until the date actually paid; and (b) AppDirect may, without limiting any other remedies available to AppDirect, suspend all access to the AppDirect Platform until such amounts are paid in full.

3.3 Taxes. Amounts payable under the Agreement are payable by You in full without offset or deduction for taxes (including any withholding tax) or customs duties. You shall be responsible for and shall pay any sales, use, value-added and similar transaction taxes and customs duties paid or payable, however designated, levied, or based on amounts payable by such Party under the Agreement. Neither Party will be responsible for paying any federal, state, local or other taxes based on the other Party’s net income.

4. TERM AND TERMINATION

4.1 Term. The term of the Agreement shall commence on the date you place a Free Trial Order on the AppDirect Platform (“Order Effective Date”) and continue for the initial Free Trial period identified in the Order (the “Free Trial Term”) unless (a) terminated earlier as allowed for under this Agreement, or (b) You convert Your Free Trial account to a paid account prior to the end of the Free Trial Term. In the event that You wish to continue to use the AppDirect Platform after the Free Trial Term ends, You may convert Your Free Trial account to a paid account by placing a new Order on the AppDirect Platform for a term with a duration identified in the applicable Order (the “Initial Term”). Thereafter, the Initial Term shall automatically renew for additional renewal terms each with a duration equal to the Initial Term (each a “Renewal Term”) unless either party notifies the other party, at least five (5) Business Days before the end of the Initial Term or then-current Renewal Term, of its intent to terminate the Agreement at the end of the Initial Term or then-current Renewal Term. The Free Trial Term, Initial Term and any Renewal Term are collectively referred to herein as the “Term”.

4.2 Termination for Cause. Without prejudice to any other rights or remedies at law, equity, or otherwise of the Party so terminating, either You or AppDirect (the “Terminating Party”) may terminate the Agreement: (a) by giving a notice to the other Party (the “Defaulting Party”) if at any time, the Defaulting Party commits a material breach of the Agreement and fails to remedy such breach to the Terminating Party’s reasonable satisfaction within thirty (30) days after delivery of notice by Terminating Party of the occurrence or existence of such breach (“Cause”); or (b) if Company files a voluntary petition in bankruptcy or an involuntary petition is filed against it; is adjudged bankrupt; a court assumes jurisdiction of the assets of Company under a federal reorganization act, or other statute; a trustee or receiver is appointed by a court for all or a substantial portion of the assets of Company. You shall give AppDirect prompt written notice of any such event relating to it.

4.3 Effect of Termination. The following provisions of this Agreement shall survive any expiration or termination of the Agreement for any reason: Sections 2, 3, 4.3, 5, 6.2, 9 and 11 as well as those which are indicated to survive in any supplemental terms or Schedules to the Agreement. Upon termination or expiration, AppDirect shall have the right to immediately stop You, Your Customers and Your End Users from accessing the AppDirect Platform and AppDirect shall immediately cease all use of the Company Content and You shall immediately cease use of all AppDirect Confidential Information and Documentation. Within thirty (30) days after such expiration or termination each Party shall (a) return to other Party or destroy all Confidential Information and all other material received from such other Party; and (b) provide the other Party with a signed written statement certifying that it has complied with the foregoing obligations. Notwithstanding the foregoing, AppDirect shall have the right to continue to retain any of Your Confidential Information or any other Company information stored in historical archived backups of AppDirect’s databases for the AppDirect Platform to be used solely for legal archival and disaster recovery purposes and provided the confidentiality and non-use obligations set forth in this Agreement shall remain in effect.

5. CONFIDENTIAL INFORMATION

5.1 Confidential Information. Each Party (the “Receiving Party”) acknowledges that by reason of its relationship to the other Party (the “Disclosing Party”) under the Agreement, the Receiving Party will have access to certain information and material concerning the Disclosing Party’s business, plans, technology, products and services that are confidential and of substantial value to the Disclosing Party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). All AppDirect Technology shall be deemed Confidential Information. The Receiving Party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by the Disclosing Party, except as expressly permitted in the Agreement. The Receiving Party shall treat the Disclosing Party’s Confidential Information in confidence and protect it with the same degree of care as the Receiving Party uses to protect its own confidential or proprietary information, but with no less than reasonable care. In the event of expiration or termination of the Agreement, there shall be no use or disclosure by the Receiving Party of any Confidential Information of the Disclosing Party. Confidential Information does not include any information that: (a) was known to the Receiving Party prior to its disclosure by the Disclosing Party, (b) is independently developed by the Receiving Party, (c) is or becomes publicly known through no wrongful act of the Receiving Party, (d) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction, (e) has been approved for public release by the Disclosing Party’s prior written authorization, or (f) must be produced or disclosed pursuant to applicable law, regulation or court order, or upon request by an examiner, auditor or regulator provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In addition, either Party may disclose the existence and terms of the Agreement in connection with a potential acquisition of substantially all of or the entire business of such Party or a private or public offering of such Party’s securities.

5.2 Feedback. You hereby grant AppDirect and its affiliates a limited, worldwide, non-exclusive, royalty-free, fully paid-up sublicensable, right and license to all Feedback and all Intellectual Property Rights therein (except patent rights and trademark and branding rights) to use, perform, display, reproduce, create derivative works, make, have made, use, sell (directly or indirectly), offer for sale or disposition, import, dispose and otherwise exploit such Feedback for any purpose.

6. LIMITED WARRANTIES AND DISCLAIMER

6.1 Company Representations and Warranties. You represent and warrant to AppDirect that (a) you have the full power and authority to enter into and fulfill the terms of the Agreement and to grant the rights granted by AppDirect herein, and (b) You have not entered and will not enter into any agreements or activities that will or might interfere or conflict with the terms hereof.

6.2 Warranty, Disclaimer. During the Term AppDirect warrants that the AppDirect Platform will perform in accordance with the Documentation in all material respects, with such warranty beginning on the Effective Date and continuing to the extent You are current on payment of Service Fees. If the AppDirect Platform does not comply with the warranty in this Section Your sole remedy and AppDirect’s exclusive liabilities shall be the provision of Support Services as set forth in this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE APPDIRECT PLATFORM IS PROVIDED “AS IS” AND APPDIRECT MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE APPDIRECT PLATFORM AND APPDIRECT’S SERVICES HEREUNDER, AND APPDIRECT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APPDIRECT DOES NOT WARRANT THAT THE OPERATION OF THE APPDIRECT PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT APPDIRECT WILL IMPLEMENT ANY FUTURE FUNCTIONALITY OR FEATURES NOTWITHSTANDING ANY ORAL OR WRITTEN STATEMENTS MADE BY APPDIRECT WITH REGARD TO SUCH FUNCTIONALITY OR FEATURES. FURTHERMORE, EXCEPT AS EXPRESSLY PROVIDED HEREIN, APPDIRECT DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APPDIRECT PLATFORM IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THE APPDIRECT PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS FOR TRIAL DURING THE FREE TRIAL PERIOD.

7. FORCE MAJEURE.

Except with respect to obligations to make payments under the Agreement, neither Party shall be deemed in default under the Agreement, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations under the Agreement due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.

8. DATA PROTECTION; EXPORT.

AppDirect shall act as a data processor of the data (1) collected from Customers and End Users when they register for, access and use an account on the AppDirect Platform, including PII; and (2) regarding use of the AppDirect Platform by Customers and End Users, (collectively, “End User Information”) and shall only process such data in either of the following scenarios: (a) in accordance with Your instructions; or (b) in accordance with this Agreement. You agree that You will only use PII for the purpose of fulfilling Your obligations under the Agreement and will not disclose or transfer any PII to any third party or use data on behalf of any third party without the express permission of the End User or in violation of applicable law or the rights of any third party. AppDirect shall at all times during the Term have in place technical and operational measures to protect the End User Information including all PII therein against unauthorized or unlawful processing of PII and against accidental loss or destruction or damage to such data. AppDirect shall upon Your reasonable request provide You with details that AppDirect is reasonably able to disclose regarding such measures and its privacy policy, and You shall treat such details as AppDirect's Confidential Information. You represent and warrant that You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom AppDirect is legally prohibited to provide the AppDirect Platform. The Company may not use the AppDirect Platform for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, or as otherwise prohibited by any law, nor may You provide administrative access to the AppDirect Platform to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.

9. LIMITATIONS OF LIABILITY.

EXCEPT FOR BREACH BY COMPANY OF ITS OBLIGATIONS UNDER SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR (A) FEES EXPRESSLY DUE AND PAYABLE UNDER THE AGREEMENT, AND (B) BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 5, IN NO EVENT SHALL APPDIRECT BE LIABLE FOR DAMAGES IN EXCESS OF THE TOTAL OF AMOUNTS PAID BY THE PARTIES UNDER THE AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. HOSTING AND SUPPORT SERVICES.

10.1 Hosting. The AppDirect Platform will be available in all material respects (i.e. capable of displaying information and conducting transactions as contemplated in the Documentation) 99.9% of the time during any thirty (30) consecutive day period, excluding (a) outages for scheduled maintenance; (b) outages as a result of emergency maintenance which could not have been reasonably foreseen and is necessary in order to prevent the likely outage; (c) a Force Majeure event under Section 7 of the General Terms of the Agreement; (d) failure or deficiency of web site availability caused by or associated with outages elsewhere on the Internet (excluding AppDirect's Internet access) that hinder Customers and End Users access to their accounts.

10.2 Launch. Access to a self-service launch support toolkit. Additional launch assistance is available per the terms of a mutually agreed upon and executed agreement at a specified hourly rate.

10.3 Support. You are responsible for providing first level support (“Level 1 Support”) to Customers and End Users through your help desk as well as through community forums and FAQ online on the AppDirect Platform. You shall maintain internal procedures for escalating support issues internally in order to ensure that only issues not capable of resolution at Level 1 are escalated to second level support (“Level 2 Support “) which is provided by the AppDirect help desk. Issues are escalated to Level 2 if You are unable to resolve them at Level 1. If AppDirect Level 2 Support cannot resolve an issue the matter is escalated to Level 3 Support which involves AppDirect’s engineering team and is for resolution of technical issues. Only Company help desk staff may contact AppDirect help desk for support assistance. In no event shall (i) Customers or End Users contact AppDirect directly for support, or (ii) Company help desk support contact AppDirect engineering personnel directly. Technical support will be provided by AppDirect between the hours of 8am-5pm PT on Business Days by email or phone with no specific service level agreement. The AppDirect Platform fees include up to 2 hours of technical support per month (with each additional hour or increment thereof billed at a rate to be established by AppDirect). AppDirect will use commercially reasonable efforts to correct any error reported by Company. AppDirect is not responsible for providing support services with respect to failures or problems that are the result of (a) use of the AppDirect Platform not in accordance with the Documentation or in a manner not permitted under this Agreement; or (b) any problems caused by or arising out of the operation of software or software systems or other resources that are contributed by Company. AppDirect has the right to install Updates and Upgrades to the AppDirect Platform.

11. MISCELLANEOUS.

AppDirect shall have the right to use Company’s logo and list Company as a customer in written, oral and electronic materials that include the names of AppDirect’s customers. Except as expressly permitted in the Agreement, AppDirect shall not use any of Your Trademarks in any advertising or publicity and shall not issue any public statement concerning the Agreement or the services rendered hereunder without Your prior written consent. You may not assign or delegate the Agreement, or any of Your rights or duties under the Agreement, directly, indirectly, by operation of law or otherwise, without the written consent of AppDirect, and any such purported assignment or delegation shall be void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Any attempted assignment in violation of this section shall be null and void. No modification, amendment or waiver of any provision of the Agreement shall be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under the Agreement shall operate as a waiver of any such right, power or remedy. Unless otherwise specified herein, there are no third party beneficiaries to this Agreement. The Agreement shall be governed by the laws of the State of California, without regard to its provisions on conflicts of law. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California in connection with any dispute under the Agreement or the enforcement of any right or obligation under the Agreement. The Agreement, including the supplemental terms for other products or programs available to You provided herein and hereby incorporated by reference, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral. The parties are independent contractors with respect to each other. Each Party is not and shall not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other. If any provision of the Agreement shall be held by a court of competent jurisdiction to be 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 and the remaining provisions of the Agreement shall remain in full force and effect. Except as otherwise expressly provided herein, no single or partial exercise of any right or remedy under the Agreement shall preclude any other or further exercise of any other right or remedy in the Agreement or as provided at law or in equity. Rights and remedies provided in the Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity. Any notice required or permitted by the Agreement shall be deemed given if delivered by registered mail, postage prepaid, addressed to the other Party at the address shown on the Order or at such other address for which such Party gives notice under the Agreement. Delivery shall be deemed effective three (3) days after deposit with postal authorities. All such notices and other communications shall be deemed to have been given and received as follows: (a) if sent by personal delivery or business courier service, on the date of delivery; (b) if sent by mail at any time other than during a strike, lockout or other postal interruption, on the fifth Business Day following the date of its mailing