White Label Partner (“WLP”) Services Agreement

1. SERVICES

1.1 Services. All services provided by AppDirect to WLP under this Agreement (the “Services”) shall be mutually agreed upon and documented in Statements of Work (“SOW”) executed from time to time by the Parties. AppDirect’s obligation to provide the Services may be fulfilled by AppDirect directly or through its Affiliates and/or subcontractors. AppDirect shall remain responsible for the provision of Services under this Agreement.

1.2 Order of Precedence. If there is a conflict between or among the documents referenced in this Agreement, the order of precedence is:

1.2.1.1 Order / Statement of Work
1.2.1.2 Services Agreement

1.3 Reselling Services. WLP is purchasing Services under this Agreement for resale to its End Users. Notwithstanding any other provision of this Agreement, WLP is fully responsible for all use of the Services by any End User of WLP, and for ensuring that all such End User usage of the Services is in full compliance with the terms and conditions of this Agreement.

1.4 White Label Portal. If applicable to services provided to WLP, AppDirect will provide a White Label Portal (Portal) for the use of WLP and their End Users. The Portal is not transferable. The Portal shall remain active if the WLP remains current with its financial obligations. AppDirect reserves the right to restrict access to the Portal by WLP and their respective End Users if WLP falls 45 days in arrears. If the WLP remains in arrears beyond 45 days, AppDirect reserves the right to make necessary arrangements to secure the continuation of Services to End User(s) and redirect billing directly to AppDirect for services. AppDirect’s decision to provide direct support for WLP End Users based on non-payment by WLP does not relieve the WLP from its financial obligations to pay past-due invoices.

1.5 Services Suspension. In addition to its rights and remedies under this Agreement and applicable law, AppDirect may suspend the performance of its obligations without liability if:

1.5.1 WLP fails to make payments when due for undisputed amounts.

1.5.2 AppDirect terminates this Agreement according to the termination provisions under this Agreement; or

1.5.3 AppDirect is required to suspend the performance as necessary to comply with any law or a request by any governmental authority with jurisdiction.

2. MINIMUM COMMITMENT

Any applicable Minimum Term Commitment (MTC) for Services, including any Minimum Monthly Commitment (MMC), will be in the Exhibit(s), or the applicable Order(s), or the applicable Statement of Work(s).

3. PAYMENT TERMS

3.1 Payment Obligation. Unless otherwise set forth in the SOW: (a) all Fees are in U.S. dollars (USD), (b) AppDirect will invoice WLP as provided in the SOW, (c) WLP shall pay all Fees in full within 30 days of the date of AppDirect’s invoice, (d) each Party will be responsible for payment of its own employment/payroll taxes, and (e) payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by AppDirect.

3.1.1. Collection from End Users. WLP is responsible for amounts it cannot collect from End Users, including, but not limited to, fraudulent charges, billing adjustments or credits it grants End Users, including adjustments for fraudulent charges, and WLP’s inability to charge or collect for Services used by End Users. AppDirect expects full payment from WLP regardless of End User states related to their payment terms with the WLP. WLP is solely responsible for End User solicitation, service requests, creditworthiness, WLP service, billing, and collection.

3.2 Late Payments. Except for Disputed Amounts (defined below), any failure to make a payment of any fees or taxes in strict conformity with the requirements of this Section 3 entitles AppDirect (in addition to all other rights and remedies available to it) to: terminate the relevant SOW for breach, or suspend, in whole or in part, the provision of any or all Services until such payment is received. Additionally, AppDirect shall have the right to assess and WLP shall pay a charge, compounded monthly, of the lesser of (a) 1.5% per month or (b) the highest amount allowed by law on all past due amounts (excluding Disputed Amounts). Furthermore, upon any such failure all outstanding amounts shall become due and payable without further delay.

3.3 Billing Dispute. If WLP, in good faith, disputes any portion of a AppDirect invoice, WLP will notify AppDirect of its intention to withhold payment of such disputed portion by providing a dispute notice to AppDirect with written documentation identifying and substantiating the disputed amount (“Disputed Amount”) within 15 days from receipt of the applicable invoice. If WLP does not report or does not provide such substantiating documentation within such period, WLP shall be deemed to have waived its right to dispute any portion of that invoice. AppDirect and WLP agree to use their respective reasonable efforts to resolve Disputed Amounts within 10 days after AppDirect receives the dispute notice from WLP. To the extent WLP abandons a dispute, the WLP shall immediately pay all Disputed Amounts, including interest from the invoice due date, if applicable. Any Disputed Amounts resolved in favor of WLP shall be credited to WLP’s account on the next invoice following resolution of the dispute. Any Disputed Amounts determined to be payable to AppDirect shall be due within 10 days of the resolution of the dispute.

3.4 Taxes. If a payment by WLP is subject to any withholding, excise, sales, value added, or any other taxes in accordance with applicable laws, WLP shall be liable for all such taxes. As applicable, WLP shall increase the Fees payable to AppDirect by an amount sufficient to fully offset the impact of such withholding tax or other taxes, such that AppDirect will receive the full amounts due under the SOW.

3.5 Termination for Cause. Either Party may terminate a SOW for cause if the other Party commits a material breach of the applicable SOW or this Agreement that remains uncured after the expiration of ten (10) days’ written notice specifying the basis for the breach.

3.6 Immediate Termination. Either Party may terminate a SOW 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. Credit. AppDirect may request Credit Approval and establish a credit line with the WLP if deemed necessary.

4.1 AppDirect may require security (or additional security, if previously provided) if:

4.1.1.1. During the Term, WLP's financial or business circumstances or payment history are unacceptable to AppDirect in its good faith determination. In the case that AppDirect reasonably believes that a material change in WLP’s financial or business circumstances are unacceptable,AppDirect will provide WLP with a written explanation of what has caused such view of WLP’s financial or business circumstances and will work with WLP in good faith to address its concerns;

4.1.1.2. WLP fails to make payment(s) when due and AppDirect has reason to believe that WLP is or may become insolvent.

4.1.1.3. WLP exceeds its credit line or limit if credit line or limit is stated in the Agreement;

5. Equipment and Software

5.1 Service Changes. If any changes in Service cause hardware or software not provided by AppDirect to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software WLP, not AppDirect, is responsible.

5.2 WLP-Provided Equipment. If WLP provides its own equipment to interface witAppDirect, WLP is responsible for the installation, maintenance, and configuration of the equipment. AppDirect must approve in advance the make, model or software revision of WLP-provided equipment. AppDirect has the right, in cooperation with WLP, to set the initial configuration for the equipment interface into the Service.

6. Acceptable Use Policy (“AUP”)

This Acceptable Use Policy is an integral part of your Agreement.

If you or your users engage in any of the activities prohibited by this AUP document, the AppDirect may suspend or terminate your account.

AppDirect’s Acceptable Use Policy (the “Policy”) is designed to help protect AppDirect, WLP’s End Users, and the Internet community in general from irresponsible or, in some cases, illegal activities. The Policy is a non-exclusive list of the actions prohibited by AppDirect.

6.1 Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

6.2 Sending Unsolicited Bulk Email (“UBE”, “spam”). The sending of any form of Unsolicited Bulk Email through AppDirect’s partner network is prohibited. AppDirect accounts or services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.

6.3 Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by WLP End Users must be Closed-loop (“Confirmed Opt-in”).

6.4 The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list.

6.5 Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other underlying Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mailbombing, denial of service attacks.

6.6 Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org/rokso.

6.7 Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (e.g., “cracking”)

6.8 Obtaining or attempting to obtain service by any means or device with intent to avoid payment.

6.9 Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any AppDirect customers or end-users by any means or device.

6.10 Knowingly engage in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the AppDirect’s network or on another provider’s network.

6.11 Using AppDirect Services to interfere with the use of the AppDirect network by other customers or authorized users.

6.12 AppDirect takes no responsibility for any material created or accessible on or through the AppDirect-provided Network and Services.

6.13 AppDirect is not obligated to monitor such material, but reserves the right to do so.

6.14 AppDirect will not exercise any editorial control over such material.

6.15 If AppDirect becomes aware that any such material may violate this AUP and/or expose AppDirect to civil or criminal liability, AppDirect reserves the right to block access to such material and suspend or terminate any User creating, storing or disseminating such material. AppDirect further reserves the right to cooperate with legal authorities and third parties in the investigation of alleged wrongdoing, including disclosing the identity of the User AppDirect deems responsible for the wrongdoing.

7. Trade Secret Protection. Portal features and services are valuable trade secrets of AppDirect. WLP will protect any software it uses that is provided with or included in Services if such software is provided by AppDirect and will make no attempt to examine, copy, alter, reverse engineer, tamper with, or otherwise misuse the software.

8. 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. 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.

9. 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”).

10. 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.

11. 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.

12. Warranties

12.1 AppDirect Warranty. AppDirect represents and warrants that the Services will be performed in a good workman like manner in accordance with normal industry standards.

12.2 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.

12.3 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.

13. Indemnification

13.1 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.

14. Limitation of Liability

14.1 EXCEPT FOR A PARTY’S BREACH OF (NON-SOLICITATION), (INTELLECTUAL PROPERTY) OR (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

15. Miscellaneous

15.1 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 SOW (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).

15.2 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.

15.3 Assignment. Neither Party may assign or otherwise transfer this Agreement or a SOW or any rights or obligations hereunder or thereunder, 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 or a SOW in whole without the other Party’s consent (a) to an affiliate, or (b) in connection with a merger, corporate reorganization, acquisition, transfer, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement and the SOW 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.

15.4 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.

15.5 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.

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

15.7 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): (Non-Solicitation), (Intellectual Property), (Confidential Information), (Indemnification), (Limitation of Liability) and (Miscellaneous).

15.8 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.

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