Agent Agreement

This Agent Agreement (the “Agreement”) governs the relationship between AppDirect Agent Services, Inc. (“AppDirect”) and Technology Advisor (as identified in the Technology Advisor Registration Form or the AppDirect marketplace). AppDirect and Technology Advisor are referred to collectively as “Parties” and individually as “Party”.

Notwithstanding anything to the contrary and unless AppDirect otherwise notifies Technology Advisor, if Technology Advisor has entered into a prior agent agreement or its equivalent with AppDirect or acquired companies or businesses, then such prior agreement shall control and remain in full force and effect; provided however, that for any providers and any classes of services or products that are not specified in such prior agreement, the commission rates shall be determined by AppDirect in its sole discretion. For purposes of clarity, if Technology Advisor has entered into such prior agreement and AppDirect has not otherwise notified Technology Advisor, this Agent Agreement shall not apply and shall not be effective.

1. Services

1.1 Scope. AppDirect hereby grants Technology Advisor non-exclusive access to AppDirect’s integrated technology marketplace platform (the “Marketplace”) to enable Technology Advisor to market, promote and refer (collectively, “Market”) products and services (collectively, “Services”) offered by AppDirect affiliates, providers or vendors (collectively, “Providers”) through the Marketplace. Technology Advisor acknowledges and agrees that the Providers and Services made available to Technology Advisor through the Marketplace may change from time to time. AppDirect expressly reserves the right to Market the Services itself, and to contract with others to Market the Services. AppDirect acknowledges that Technology Advisor retains the right to Market, on behalf of itself or other Providers, agents, carriers, or vendors, services which are the same or substantially similar to the Services. AppDirect acknowledges and agrees that Technology Advisor may enter into an agreement directly with any Provider at any time, in Technology Advisor’s sole discretion, and any such arrangement between Technology Advisor and a Provider shall not have any effect on this Agreement nor on the Parties’ respective obligations hereunder.

1.2 Service Terms. The Referral Service Terms, the Dispute Resolution Policy, the AppDirect Marketplace Terms and Conditions and the AppDirect Marketplace Privacy Policy, each set forth at www.appdirect.com/legal, are incorporated by reference in this Agreement (collectively, the “Service Terms”). The Service Terms may be amended or supplemented from time to time by AppDirect.

1.3 Sub-Advisors. Technology Advisor may, at Technology Advisor’s expense, retain sub technology advisors, sales agents and direct sales representatives (collectively, “Sub-Advisors”) as Technology Advisor deems necessary or advisable to perform the services required of Technology Advisor under this Agreement. Technology Advisor shall be solely responsible for compliance by Sub-Advisors with the terms and conditions of this Agreement.

1.4 No Direction. Technology Advisor will determine in its sole discretion the time and resources it dedicates to Marketing the Services, with no minimum requirement and no requirement to “accept” any specific opportunities. AppDirect does not have nor exercise any direction over the methods by which Technology Advisor or the Sub-Advisors Market the Services.

1.5 Non-Disassociation. AppDirect will not intentionally dissociate or attempt to dissociate Technology Advisor from the end-users sourced by Technology Advisor for the purposes of avoiding payments under this Agreement to Technology Advisor. Notwithstanding the foregoing, Technology Advisor acknowledges and agrees that AppDirect’s agents and technology advisors do not operate at the direction of AppDirect.

1.6 Provider Trademarks and Trade Names. AppDirect has entered into agreements with Providers and, pursuant to such agreements, Technology Advisor is required to comply with the standards of usage for a Provider’s name, symbols, trademarks and trade names issued or to be issued by a Provider from time to time.

2. Compensation

Technology Advisor acknowledges and agrees that AppDirect will retain a share of the commissions generated by Technology Advisor’s Orders (as defined in the Service Terms). AppDirect may set-off any amounts owed by Technology Advisor to AppDirect against any compensation and other amounts owed by AppDirect to Technology Advisor. AppDirect does not provide or guarantee a regular or minimum payment.

3. Term and Termination

3.1 Term. This Agreement shall remain in effect for an initial term of six (6) months, beginning on the date hereof and shall automatically renew for successive six (6) month terms (the “Term”) unless and until either Party gives written notice of non-renewal at least thirty (30) days in advance of the end of the then current Term.

3.2 Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) day written notice to the other Party.

3.3 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 ten (10) days’ written notice specifying the basis for the breach.

3.4 Immediate Termination. Either Party may terminate this Agreement immediately upon written notice if a 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. Intellectual Property

The Parties acknowledge and agree that each Party retains ownership rights in and to its 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 it (collectively “Intellectual Property”).

5. Confidential Information

5.1 Confidential Information. “Confidential Information” means any information disclosed or otherwise made available previously or in the future by AppDirect to Technology Advisor, 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, and includes all customer and end-user information exchanged between the Parties from time to time; 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 Technology Advisor’s breach of this Section; (b) is or becomes available to Technology Advisor 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 Technology Advisor’s possession prior to AppDirect’s disclosure hereunder; or (d) was or is independently developed by Technology Advisor without using any Confidential Information or as provided in this Agreement.

5.2 Non-Use and Limited Disclosure. Technology Advisor shall: (a) protect and safeguard the confidentiality of AppDirect’s Confidential Information with at least the same degree of care as Technology Advisor would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the AppDirect’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 Technology Advisor’s Representatives who need to know the Confidential Information to assist Technology Advisor, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If Technology Advisor 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 AppDirect of such requirements to afford AppDirect the opportunity to seek, at AppDirect’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.

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 (INTELLECTUAL PROPERTY) 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.

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 the 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 Technology Advisor 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).

9.2 Code of Conduct. Technology Advisor is aware of and acknowledges AppDirect’s Code of Conduct as made available by AppDirect from time to time or upon demand. AppDirect may impose accuracy, quality, and professionalism standards, but may not direct and control Technology Advisor’s schedule or provision of Services.

9.3 Business-to-Business Relationship. Technology Advisor and AppDirect operate independent businesses and wish to form a business-to-business relationship. Technology Advisor does not desire to be an employee of AppDirect. AppDirect shall not exercise direction and control over the manner and means in which Technology Advisor operates their independent business. AppDirect will not withhold federal and state income tax from payments to Technology Advisor. Each Party is responsible for its own reporting and payment of taxes. This Agreement is non-exclusive, meaning either party may provide similar services to other entities or individuals. Technology Advisor expects to provide services to other parties. 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. As part of this business-to-business relationship, Technology Advisor acknowledges and agrees that it will receive communications from AppDirect and Providers (whether or not Technology Advisor has an existing business relationship with Providers) and that these communications are inherent and necessary to the conduct of business under this Agreement. Technology Advisor expressly consents to use of contact information and other personal information for such communications.

9.4 No Right to Benefits. Technology Advisor acknowledges it is not an employee of AppDirect and therefore are not entitled to any fringe benefits, pension plans, health or disability plan, paid leave or other employee benefits from AppDirect. Technology Advisor acknowledges it is not entitled to unemployment insurance and worker’s compensation from AppDirect, and that to the extent Technology Advisor wishes to be covered for the same, it must obtain its own insurance.

9.5 Assignment. Technology Advisor 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.

9.6 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.

9.7 Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the state in which the Technology Advisor primarily conducts Marketing (or, if not primarily within the United States, then with the laws of California) without regard to its conflicts of law principles. The Parties agree to jurisdiction and venue in the applicable choice of law jurisdiction over any matter arising out of this Agreement, unless otherwise agreed to by the Parties, and each Party hereby submits to the venue and jurisdiction thereto. 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.

9.8 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.

9.9 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): 1.2 (Service Terms), 2 (Compensation), 4 (Intellectual Property), 5 (Confidential Information), 7 (Indemnification), 8 (Limitation of Liability) and 9 (Miscellaneous).

9.10 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.

9.11 Conflicts and Amendment. 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 Referral Service Terms, (b) the Privacy Policy, (c) the Marketplace Terms and Conditions and (d) this Agreement. 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.