Accept Terms and Conditions

AppDirect Billing Service Agreement

THIS SERVICE AGREEMENT FOR THE APPDIRECT CLOUD SERVICE COMMERCE PLATFORM (“APPDIRECT PLATFORM”) BILLING SERVICE THAT ENABLES YOU TO SELL, PROVISION, BILL AND COLLECT PAYMENTS FOR SALES OF PRODUCTS ON YOUR WEBSITE (“BILLING SERVICE”) 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 ("DEVELOPER", "You", "Your"), AND GOVERNS THE TERMS UNDER WHICH YOU MAY USE APPDIRECT’S PLATFORM AND BILLING SERVICE. APPDIRECT AND YOU MAY EACH BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”. 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 AND BILLING SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THE DEVELOPER’S COMPANY BEING BOUND BY THE FOLLOWING TERMS. APPDIRECT RESERVES THE RIGHT TO CHANGE THESE TERMS AT ANY TIME IN ITS SOLE DISCRETION.

1. MANAGEMENT OF APPDIRECT PLATFORM. As between the Parties, the maintenance and operation of the AppDirect Platform and Billing Service will be exclusively controlled by AppDirect, and the AppDirect Platform and Billing Service will be hosted by, or on behalf of AppDirect, on AppDirect designated hardware and equipment.

2. ACCOUNT SETUP.

2.1. Account Creation. To use the Billing Service to support sales of Your proprietary software as a service applications or other products or services that are owned by You (“Products”) to Your users (“End User”), You must first create an account on AppDirect’s password-protected online environment through which You can setup profiles and distribution options of Your Products, as well as manage End User bills, and adjust other account settings (“Billing Center”). Developer must choose a password on the Billing Center and is solely liable for maintaining the confidentiality of Developer’s password, changing the password at a reasonable interval, and for any and all activity on the Billing Center taking place under the password. Developer shall keep any and all required profile information on the Billing Center accurate and up to date including, without limitation, any contracting and payment information.

2.2. SaaS Product Hosting. You shall be solely responsible for hosting any Product that is a software as a service (SaaS) application and for all associated network connectivity, maintenance, backup, and other hardware, software, and support and other services required to provide the Product to End Users, and shall bear all costs and expenses associated therewith.

2.3. No Other Connections; Limited Use. You shall not use any robot, spider, or other automated process to scrape, crawl, or index any part of the AppDirect Platform or Billing Service.

3. USAGE AND RESTRICTIONS. Subject to the term and conditions of the Agreement You may, during the Term:

3.1. Access and use the Billing Service solely in order to bill its customers for sales of Products. The Billing Service includes the features and functionalities set forth in the standard (a) online help center content for the AppDirect Platform and Billing Service that AppDirect makes available to its customers and updates thereto, and (b) on premise infrastructure deployment documents, system specifications, hardware requirements, technical manuals, and tools and other instructions regarding the capabilities, operation, installation and use of the AppDirect Platform and Billing Service that AppDirect makes generally available to all of its customers that use the AppDirect Platform and Billing Service; and (c) generally available updates to (a) and (b) ((a) – (c) collectively, “Documentation”) and content for the Billing Service, in electronic format that AppDirect makes generally available to all of its Billing Service customers in a part of the AppDirect Platform that includes certain Documentation (“Documentation Center”).

3.2. Access and use the AppDirect APIs documented in the Documentation Center (“AppDirect APIs”) for the Billing Service in accordance with the Documentation solely in order to bill Your customers for Products.

3.3. For avoidance of doubt, Products do not include any third party product or service which is proprietary to a third party but which Developer white-labels and sells under its own trademarks or co-brands with its and a third party’s trademarks. Use of the Billing Service for the sale of any third party product or service constitutes a material breach of this Agreement, and, without limiting any other available remedies, AppDirect may immediately suspend Your access to all or any portion of the Billing Service if You violate this restriction.

3.4. Company is responsible for compliance with this Agreement by You and End Users. You shall use the Service 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 or Billing Service 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 and Billing Service 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 Billing Platform or the data contained therein; (vi) modify, copy or create derivative works based on the AppDirect Platform or Billing Platform, or any portion thereof; or (vii) access the AppDirect Platform or Billing 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 and Billing 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. Company shall receive notification of such suspension, to the extent and in the manner, that AppDirect provides a notification to all of its affected customers.

4. PERMISSION TO SELL. You acknowledge that You are not required to obtain pre-approval from AppDirect in order to sell Products using the Billing Service but that AppDirect, in its sole discretion, may elect to rescind or limit Your permission to use the Billing Service with any Product. Notwithstanding the foregoing, You are prohibited from using the Platform, Billing Service, or any other Developer Service to sell a product or service that supports or encourages violence, hatred, terrorism, or illegal acts.

THIRD PARTY RESOURCES. The Billing Service may provide access to, be integrated with, or link to third party resources, systems, services, and information (including, for example, a merchant account, payment gateway, and tax account) (collectively, “Third Party Resources”). AppDirect does not operate or control these Third Party Resources and You shall not hold or attempt to hold AppDirect liable for any act or omission made by these third parties. Your agreement or terms and conditions with each provider of a Third Party Resource governs Your use of those Third Party Resources (“External Terms”), not this Agreement.

5. SUPPORT. Support is via by email only and support hours are between 8 AM to 5 PM Pacific Time Monday through Friday excluding AppDirect holidays.

6. INTELLECTUAL PROPERTY RIGHTS.

6.1. Developer IPR. As between the Parties, You shall retain exclusive right, title and interest in and to the Products (including any modifications or enhancements made thereto during the Term) and the trademarks, trade names, logos, and service marks (“Trademarks”) owned by You as well as any other materials owned or licensed by You which is provided by You to AppDirect for use in connection with the AppDirect Platform and Billing Service (“Developer Content”) and any and all patents, copyrights, trademark rights, and analogous rights in works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, including applications and registrations for the foregoing, trade secret rights, and all other intellectual property or proprietary rights (whether registered or not) arising under the laws of any jurisdiction (“Intellectual Property Rights”) in any of the Products or Developer Content.

6.2. AppDirect IPR. As between the Parties, AppDirect shall retain exclusive right, title and interest in and to the (a) AppDirect Platform and Billing Service; (b) all visual interfaces, text graphics and other content included on the AppDirect Platform; (c) all AppDirect technology developed by or on behalf of AppDirect including without limitation, AppDirect API’s and all improvements and modifications thereto (“AppDirect Technology”); (d) all AppDirect Technology owned by AppDirect that was in existence prior to the Effective Date of Agreement, or is licensed or developed after the Effective Date of the Agreement; (e) any and all modifications and enhancements made to (a) through (c); and (f) any and all Intellectual Property Rights in or related to (a) through (e). For the avoidance of doubt, AppDirect shall own all AppDirect APIs and any other software or other technology (excluding each Product) that AppDirect, AppDirect’s employees or agents develop or integrate with the Platform in connection with integration of any Product or otherwise supporting interoperation of any Product and the Platform as well as all AppDirect Trademarks.

6.3. Developer Content License. You grant to AppDirect a limited, nonexclusive, worldwide, royalty-free, fully paid-up license to use, reproduce and distribute the Developer Content as reasonably required for AppDirect to perform its obligations under the Agreement. AppDirect’s use of the Developer’s Trademarks shall be in accordance with Your then current trademark usage and style guidelines or specific instructions

6.4. No Implied Licenses or Exclusivity. All rights not granted are expressly reserved. Except as expressly stated herein, nothing in this Agreement shall confer to either Party any license or right of ownership in material owned by the other Party, whether by implication, estoppel, or otherwise. The AppDirect Platform and any rights or privileges granted by AppDirect under this Agreement are each provided non-exclusively. AppDirect is free at any time to market, sell, and distribute any part of the AppDirect Platform and AppDirect’s or its affiliates other products and services to or through any other person, corporation, or entity other than Developer. AppDirect, in its sole discretion, reserves the right to make changes to the AppDirect Platform or any Developer Services.

7. TERMS OF SERVICE AND PRIVACY POLICY. All End User access to and use of the Billing Service and any website through which You collect information that is transmitted to the Billing Service using AppDirect APIs will be pursuant to Terms of Service (“Developer TOS”) and a Privacy Policy (“Developer Privacy Policy”) that shall be provided by You to each End User for review and agreement and shall be agreed to by each End User.

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

7.1.1. (i) the products and services listed on the AppDirect Platform and Billing Service are from third party providers (“Developers”) who are not affiliated with AppDirect; (ii) the End User agrees that AppDirect is not responsible for or a provider of Developer’s Products; (iii) purchases of Products made on third party websites to which an End User links from the AppDirect Platform are between the End User and the Developer not between AppDirect and the End User and, as such, are subject to those terms of use, if any, posted by the Developers,

7.1.2. Company shall make no warranties on behalf of AppDirect regarding the AppDirect Platform and Billing Service and shall specifically disclaim on behalf of AppDirect, all warranties, including implied warranties, with respect to the AppDirect Platform and Billing Service, and

7.1.3. Company 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 End Users.

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

7.2.1. (i) when an End User purchases a Product on the Billing Service he will submit personally identifiable information that can be reasonably used to identify an individual (“PII”); (ii) when an End User uses the Billing Service, it may send one or more session or persistent “cookies” to his computer; (iii) when an End User uses the Billing Service or opens an HTML email generated using the Billing Service, it may automatically record certain information from the End User’s web browser including for example standard log files, “clear gifs, Internet Protocol address (“IP Address”), another device address or ID, web browser type, device type, the pages he or she viewed on the Billing Service, and the dates and times that he or she visited; (iv) the Billing Service 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,

7.2.2. the operator of the Billing Service may use: (i) the information End Users provide or that it collects to operate, maintain, and enhance the Billing Service; (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 Billing Service 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 Billing Service, monitor and analyze the effectiveness of the Billing Service and monitor aggregate site usage metrics, and

7.2.3. 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 Billing Service. 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 Billing Service. AppDirect will continue to use the Payment Information to charge that End User on their billing cycle. Company may disclose End User information that it believes, 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 Billing Service.

8. USE OF END USER INFORMATION

8.1. End User Information. Subject to the remainder of this Section 9, You shall own all right, title, and interest in and to all data including information about End Users that is (a) collected from End Users when they register for, access and use an account on the AppDirect Platform and Billing Service, including PII, and (b) regarding use of the AppDirect Platform and Billing Service by End Users. (“User Information”).

8.2. Individually Identifiable User Information. You agree that You will only use User Information that is PII in accordance with the provisions of the Developer Privacy Policy and not in violation of applicable law or the rights of any third party.

8.3. Limited Use. AppDirect agrees that it will not sell, disclose, transfer, or rent any User Information to any unaffiliated third party or use data on behalf of itself or any unaffiliated third party or for any other purpose other than to fulfill its obligations under the Agreement and for the sole benefit of Developer (and End Users, as directed by You) without Your express permission and End Users or unless failure to disclose will cause AppDirect to be in violation of applicable law.

8.4. Aggregate Data; Independent Source. Notwithstanding the provisions of this Section 9, and provided that information is in an aggregate form which does not specifically identify the End Users or the fact that such End Users are related in any way to You, 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 Billing Service for any legitimate business purpose. This right shall survive any termination or expiration of the Agreement.

9. COMPLIANCE. You will, at Your sole cost and expense, obtain all permits and licenses necessary in connection with its performance under this Agreement, and will comply with all applicable international, national, federal, state, and local laws, rules and regulations (collectively “Laws”) in the performance under this Agreement and that are applicable to the business You transact. Without limiting the generality of the foregoing, You shall comply with (a) all Laws with respect to email, email abuse, and other forms of electronic communications in performance under the Agreement and Your use of the Platform, and You shall not use AppDirect’s name, trademarks or logos in connection with any such communication that may be sent in violation of such Laws; (b) all applicable privacy and security Laws for the collection, use and disclosure of financial and PII about individuals and shall obtain any required consents with respect to that collection, use, and disclosure thereof; and (c) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.

10. TERM AND TERMINATION.

10.1. Term. This Agreement will commence on the date You activate Your Billing Service account on AppDirect’s website (“Effective Date”) by completing and agreeing to the Billing Service registration and order terms included in the online order form (“Order Form”) and shall continue indefinitely unless terminated by either Party in accordance with the Agreement (“Term”).

10.2. Termination. Either Party may terminate this Agreement (a) immediately upon notice to the other Party in the event that the other Party breaches any of its material obligations under this Agreement that remains uncured for thirty (30) days after notice thereof; and (b) at any time for any reason by giving the other Party thirty (30) days prior written notice of its intent to terminate.

10.3. Effect of Termination. Upon termination of this Agreement for any reason whatsoever, all rights granted hereunder shall terminate immediately, all exercise of activities permitted under such rights shall cease, except for those set forth in Sections 7, 10, 11.3, 12 through 21 which will survive expiration or termination of this Agreement for any reason (“Survival Provisions”).

11. CONSIDERATION, INVOICING AND PAYMENT

11.1. Consideration. In consideration of AppDirect providing You with the Billing Service, during each calendar month You are utilizing the Billing Service, You shall pay AppDirect fees (“AppDirect Fees”) equal to one percent (1%) of the actual amounts paid by End Users for orders placed through the Billing Service whether they are billed using the Billing Service, by invoice, or otherwise, for the right to access or use any Product not including taxes. (“Gross Revenue”).

AppDirect may change the rates set forth herein on a going-forward basis, and AppDirect will provide notice of any such change. You shall use the features in the Billing Service to collect sales, VAT and other taxes to the extent they are due and payable on sales of Products and You shall be fully responsible for submitting those taxes to the appropriate governmental authorities. 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

11.2. Invoicing. AppDirect will invoice You for AppDirect Fees on monthly or quarterly intervals at AppDirect’s option. AppDirect, at its option, may either mail invoices to You or, when the applicable billing period is over, an invoice will appear on the manage accounts area of the Billing Center. Each invoice shall be sent to Your email address or physical address as specified by You when You create a Billing Service account. Unless specified otherwise herein, You shall pay all AppDirect invoices in full within thirty (30) days of the date of invoice. 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 a 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 access, in whole or in part, to the AppDirect Platform and Billing Service until such amounts are paid in full.

11.3. Taxes. Amounts payable under this Agreement are payable in full without offset or deduction for taxes (including any withholding tax) or customs duties. The paying Party 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 this Agreement. Neither Party will be responsible for paying any federal, state, local or other taxes based on the other Party’s net income.

12. REPRESENTATIONS AND WARRANTIES

12.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered.

12.2. Developer Representations and Warranties. You represent and warrant that:

12.2.1. Any interaction with, access to, or use of, the Products and Developer Content as permitted hereunder does not and will not: (a) infringe, violate, or misappropriate any third party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity, or contain false or misleading information; or (c) violate any laws including, without limitation, laws related to the collection, storage, processing, use, and disclosure of PII;

12.2.2. The Products and Developer Content do not and will not contain any viruses, adware, spyware, back door, time bomb, drop dead device, worms, or other malicious code or any content or file or system that provides a method to circumvent any security features of the AppDirect Platform and Billing Service (including without limitation any End User privacy settings, such as settings prohibiting direct solicitation and sales contact from Developers), or obtain unauthorized access to any End User device or computer;

12.2.3. As between AppDirect and You, You are solely responsible for providing, maintaining and supporting the Product;;

12.2.4. (a) Transactions processed using the Billing Service are bona fide transactions for Products made in the ordinary course of business; (b) each Product has been accurately described by Developer to AppDirect and each End User; (c) You will provide the Product to each End User in accordance with the Developer TOS, Developer Privacy Policy and other terms and conditions under which such Product is provided and Developer will be fully responsible for resolving any disputes or complaints raised by any End User using a Product; and (d) Developer will not use the Billing Service in a manner intended to conceal the identity, source, or destination of illicitly-obtained money or in any manner, directly or indirectly, in a manner that violates any legal requirement or right of any person. and

12.2.5. Each Product is lawfully distributable to all countries except Cuba, Iran, North Korea, Sudan and Syria. You will comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. You agree to indemnify AppDirect, to the fullest extent permitted by Law, from and against any fines or penalties that may arise as a result of Your breach of this provision.

12.3. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN INCLUDING IN ANY SERVICE EXHIBIT, NEITHER PARTY MAKES ANY EXPRESS, IMPLIED OR STATUTORY REPRESENTATION OR WARRANTY, AND THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND NEITHER PARTY WARRANTS THAT ANY PARTICLUAR RESULTS WILL BE DERIVED FROM THE USE OF THE PLATFORM OR THE PRODUCTS, OR ANY MATERIALS, DELIVERABLES, OR SERVICES PROVIDED UNDER THIS AGREEMENT. SPECIFICALLY, EXCEPT AS EXPRESSLY STATED OTHERWISE HEREIN, THE PLATFORM AND THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY.

13. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL APPDIRECT BE LIABLE TO DEVELOPER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT APPDIRECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL APPDIRECT’S TOTAL AGGREGATE LIABILITY TO DEVELOPER EXCEED THE TOTAL FEES COLLECTED AND RETAINED BY APPDIRECT IN CONNECTION WITH DEVELOPER’S USE OF THE DEVELOPER SERVICES HEREUNDER IN THE TWELVE MONTHS PRECEDING ANY CLAIM GIVING RISE TO LIABILITY. THE FOREGOING CAP IS IN AGGREGATE FOR ALL CLAIMS AND SHALL NOT BE INCREASED BY MULTIPLE CLAIMS SUBJECT TO THE SAME, OVERLAPPING, OR ENTIRELY SEPARATE LOOKBACK PERIODS.

14. INDEMNIFICATION.

14.1. By Developer. You shall indemnify, defend and hold harmless AppDirect and its parent, affiliates, and subsidiaries, and each of their respective directors, officers, shareholders, agents and employees (“AppDirect Parties”) from and against any and all suits, actions, damages, costs, losses, expenses (including reasonable outside attorneys’ fees) and other liabilities (each, a “Claim”) arising from or in connection with any breach or alleged breach of any of Your representations, warranties or obligations set forth in this Agreement as well as any Claims arising out of or relating to (a) You or Your End User’s use or misuse of the Billing Service; (b) any breach or violation of External Terms; and (c) any failure by Developer to ensure that each End User of the Billing Service has agreed to the Developer TOS and Developer Privacy Policy, in accordance with Section 8. You shall solely conduct the defense of any such Claim and all negotiations for Your settlement or compromise; provided, however, that (i) no settlement or compromise of such a Claim shall be entered into or agreed to without AppDirect’s prior approval (not to be unreasonably withheld or delayed); and (ii) AppDirect shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.

14.2. By AppDirect. AppDirect shall indemnify, defend and hold You harmless, and Your directors, officers, shareholders, agents and employees from and against any and all claims from End Users arising as a result of any representation, warranty, or other obligation made by AppDirect to such End User on behalf of You beyond the scope of the representations, warranties, and obligations You make to End Users generally. AppDirect shall solely conduct the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise of any such Claim shall be entered into or agreed to without Your prior approval (not to be unreasonably withheld or delayed); and (b) You shall have the right to participate, at Your own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect Your own interests.

15. CONFIDENTIALITY. In connection with this Agreement, AppDirect and You each may be exposed to and will be furnished with certain proprietary or non-public information, material or data relating to the other’s businesses, technologies, products, productions, or services, or plans therefor, which are confidential and not otherwise available or known to the public (“Confidential Information”). Each Party shall keep confidential and not reveal or disclose any Confidential Information to any third party; provided, however, that each Party may disclose Confidential Information to its employees and independent contractors with a need to know such information in order for them to perform such Party’s obligations under this Agreement, and to counsel, advisors and accountants so long as all such third party disclosures are made pursuant to written obligations of confidentiality no less protective than those in this Section 16. Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by or at the direction of the receiving Party; (b) is or becomes available to the receiving Party on a non-confidential basis from a source that is entitled to disclose it to such Party; (c) was known to the receiving Party prior to receipt from the disclosing Party without any restriction on its use or disclosure; or (d) is developed by the receiving Party without the benefit of the Confidential Information. Notwithstanding any of the foregoing, a Party may disclose Confidential Information if and solely to the extent that such disclosure is required by law, court order, judicial process, subpoena, or similar process, or applicable rule or regulation, provided that such Party shall use commercially reasonable efforts to seek confidential treatment for any such disclosed Confidential Information, and to the extent legally permissible, promptly notify the disclosing Party of such disclosure. If You provide any suggestions, feedback, or other input to AppDirect concerning the functionality or performance of the AppDirect Platform, Billing Service or any AppDirect technology, including identifying potential errors and improvements (“Feedback”), then You hereby grant to AppDirect and its parent, subsidiaries, and affiliates a limited, worldwide, non-exclusive, royalty-free, fully transferable and sublicenseable, full paid up 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.

16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. Unless expressly agreed to by the Parties in an amendment or addendum to this Agreement, there are no third party beneficiaries to this Agreement. No modification to, amendment to or waiver of any provision in this Agreement shall be binding unless executed in writing by the Party to be bound thereby.

17. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed under the laws of the State of California, without regard for choice of law or conflict of law provisions. The Parties agree to limit all legal action or proceeding relating to this Agreement to the exclusive jurisdiction of the state courts in Santa Clara County, California and the Federal courts of the Northern District of California, and both Parties agree to submit and do hereby submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

18. ASSIGNMENT. Developer may not assign its rights or delegate its obligations hereunder, including by operation of law, without the express prior written approval of AppDirect, except that prior written approval shall not be required for You to assign this Agreement, along with all its rights, licenses, and obligations, to an entity that succeeds to all or substantially all of Your assets related to this Agreement in the event of a merger (irrespective of which party to such merger is the surviving party), change of control, acquisition, or other corporate reorganization. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

19. ORDER OF INTERPRETATION. If there is an inconsistency between the terms and conditions of this Agreement and any terms included in the Order Form, the terms of this Agreement shall control.

20. MISCELLANEOUS. The failure by a Party to take action by reason of any default by the other Party, whether in a single instance or repeatedly shall not constitute a waiver of any such default or of the performance required of the defaulting Party. The express waiver by a Party of any provision of this Agreement or a default by the other Party in any one instance shall not be construed as a waiver of the same provision or default in any subsequent instance. Any notice required or permitted by this Agreement shall be deemed given if delivered by registered mail, postage prepaid, addressed to the other Party at the address set forth in the Billing Service Activation Terms, in the case of Developer, or 650 California Street, 25^th Floor, San Francisco, California, USA 94108 in the case of AppDirect, or at such other address for which such Party gives notice under this Agreement. Delivery shall be deemed effective three (3) days after deposit with postal authorities. Notices regarding formal contractual issues shall be sent to the attention: General Counsel and administrative issues to the attention of AppDirect Accounting. AppDirect shall have the right to list Developer as a customer in written, oral and electronic materials that include the names of AppDirect’s customers. You agree to act as a customer reference for AppDirect. You shall also in good faith consider participating in a video testimonial regarding Your use of the AppDirect Platform and Billing Service. 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. The headings and captions used in this Agreement are for convenience of reference only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. If any provision of this Agreement as applied to either Party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, it shall be revised so as to effectuate the intent of the parties to the maximum extent possible, of if not capable of such revision will be deemed severed from this Agreement, and the remaining provisions of this Agreement will remain in force and unaffected. Except with respect to obligations to make payments under this Agreement, neither Party shall be deemed in default under this Agreement, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations under this 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. Except as otherwise expressly provided herein, no single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise of any other right or remedy in this Agreement or as provided at law or in equity. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. Each Party’s performance of its duties and obligations under this Agreement shall be that of an independent contractor and nothing herein shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties.