JetApps Partner NOC Agreement

This JetApps Partnership NOC  Agreement (this “Agreement”) is made as of _______________, (“Effective Date”), by and between Control Panel Solutions, Inc., a California corporation, having its offices at 940 Calle Negocio #150, San Clemente, CA 92673 doing business as JetApps (hereinafter “JetApps”) and ________________________________ a _____________________ corporation, having its registered office at _______________________________________(the “Partner”).

Witnesseth

WHEREAS, JetApps is engaged in (among other things) the business of providing certain hosting software packages and technical support services in connection therewith;

WHEREAS, JetApps is the owner of the Software and all Intellectual Property Rights thereto;

WHEREAS, the Partner desires to obtain licenses to install and use the Software on its own servers or virtual private servers that are located within its own data center or facilities and/or the right to sublicense the Software to its customers; and

WHEREAS, the parties hereto desire to enter into this Agreement in order to set forth
the terms and conditions upon which the Partner may obtain such additional licenses and sublicensing rights.

NOW THEREFORE, in consideration of mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

Article 1

Definitions

The following definitions apply to capitalized terms throughout this Agreement, unless such terms are otherwise expressly defined in the body of the Agreement. All references to “days,” “months” and “quarters” are to U.S. calendar days, months and quarters unless otherwise expressly stated in this Agreement. All monetary amounts are in U.S. dollars.

SECTION 1.1 “Activation” means the date each Purchased License is Activated (as such term is defined in the applicable EULA).

SECTION 1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.

SECTION 1.3 “Application” means the JetApps Partner NOC application or JetApps Partner application prepared and submitted by the Partner to JetApps in connection with this Agreement.

SECTION 1.4 “JetApps Trademarks” means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of JetApps including without limitation JetBackup, JetClone and JetMigrate.  JetApps reserves the right to register its trademarks, create and add to the foregoing nonexclusive list of JetApps Trademarks by updating the JetApps Trademark Usage Policy which is located at http://www.JetApps.com/legal/trademark-policy  (or such other URL as may be designated by JetApps from time to time) and which may be updated by JetApps in its sole discretion from time to time (also referred to as “Exhibit 5” herein).

SECTION 1.5 “JetBackup” means JetApps’s proprietary software application currently known as “JetBackup” for the Linux operating system.

SECTION 1.6 “JetClone” means JetApps’s proprietary software application currently known as “JetClone” for the Linux operating system.

SECTION 1.7 “JetMigrate” means JetApps’s proprietary software application currently known as “JetMigrate” for the Linux operating system.

SECTION 1.8 “EULA” means the applicable End-User License Agreement for the Software, including without limitation the JetBackup, JetClone, and/or JetMigrate EULA(s) (also referred to as “Exhibit 3” herein), copies of which are located at http://www.JetApps.com/legal/jetbackup-eula  ;  http://www.JetApps.com/legal/jetmigrate-eula ; http://www.JetApps.com/legal/jetclone-eula (or such other URL as may be designated by JetApps from time to time) and hereby incorporated into this Agreement by reference.

SECTION 1.9 “Event of Default” means any breach of this Agreement designated an Event of Default under this Agreement. Each event designated an Event of Default under this Agreement constitutes a material breach of this Agreement. The list of events designated as Events of Default is a nonexclusive list of material breaches under this Agreement.

SECTION 1.10 “External Servers” means servers other than Internal Servers.

SECTION 1.11 “Incident” has the meaning given in the Technical Support Agreement.

SECTION 1.12 “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.

SECTION 1.13 “Internal Servers” means JetApps-approved servers owned or leased and operated by the Partner located within a JetApps-approved facility owned and operated by the Partner.

SECTION 1.14 “Licensed Server” or “Licensed Servers” has the meaning given in the EULAs.

SECTION 1.15 “Minimum NOC Commitment” has the meaning given in JetApps’s Partner Minimum Requirements information which is located at http://www.JetApps.com/legal/partner-minimums (or such other URL as may be designated by JetApps from time to time) and hereby incorporated into this Agreement by reference (also referred to as “Exhibit 1” herein). The Partner understands and agrees that JetApps may unilaterally change the Minimum NOC Commitment from time to time in its sole discretion; provided, however, that JetApps shall make commercially reasonable efforts to notify the Partner of any changes to the Minimum NOC Commitment

SECTION 1.16 “Monthly Licenses” means a license to install and use the Software on a Licensed Server on a month-to-month basis subject to and in accordance with the EULAs. The term of each Monthly License is one month from the date of Activation with automatic one month renewals until such license is terminated or either party elects not to renew the license.

SECTION 1.17 “Partner Minimum Requirements” means the requirements which the Partner must meet and continuously satisfy in order to achieve or maintain Partner status. The Partner Minimum Requirements are available at http://www.JetApps.com/legal/partner-minimums (or such other URL as may be designated by JetApps from time to time) and hereby incorporated into this Agreement by reference (also referred to as “Exhibit 1” herein). Pursuant to Section 4.3 below, JetApps may amend the Partner Minimum Requirements from time to time in its sole discretion.

SECTION 1.18 “Purchased Licenses” means all Server Licenses, and JetBackup, JetClone or JetMigrate licenses purchased by the Partner from JetApps in accordance with the terms and conditions of this Agreement.

SECTION 1.19 “Resell” has the meaning given in Section 3.2.

SECTION 1.20 “Server” means a physical server that does not contain any virtual servers, and any virtualized environment in which the physical hardware of the machine is emulated, including, without limitation, any set of virtual hardware created through virtualization software, a jailed or chrooted environment, or any other setup that allows multiple operating systems to be run concurrently on the same physical hardware.

SECTION 1.21 “Server License” means any Monthly License to install and use the Software on a Server subject to and in accordance with the applicable EULA.

SECTION 1.22 “Services” means the technical support services related to the Software provided by JetApps in connection with this Agreement whether such services are provided via email, telephone support, the JetApps website or by any other means.

SECTION 1.23 “Software” means the JetApps software program(s) supplied by JetApps in connection with this Agreement, including JetApps, JetBackup, JetClone and JetMigrate and all corresponding documentation, source code, object code, updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components.

SECTION 1.24 “Technical Support Agreement” means the agreement which is located at http://www.JetApps.com/legal/support-terms-of-service (or such other URL as may be designated by JetApps from time to time) and hereby incorporated into this Agreement by reference (also referred to as “Exhibit 4” herein).

SECTION 1.25 “Term” has the meaning given in Section 11.1.

Article 2

Purchases and Licenses of the Software

SECTION 2.1 Licenses. During the Term, subject to the terms and conditions of this Agreement and provided that the Partner continues to satisfy and meet all of the Partner Minimum Requirements as determined from time to time by JetApps in its sole discretion, the Partner shall be entitled to purchase from JetApps: Server Licenses for installation and use of the Software on Servers.  The Partner shall not install or use any Software on any External Servers. A breach of this Section 2.1 shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4

SECTION 2.2 EULAs and Technical Support Agreement. Notwithstanding anything to the contrary in this Agreement, (a) each Purchased License shall be subject to the terms and conditions of the EULAs; and (b) all Services shall be provided by JetApps subject to the terms and conditions of the Technical Support Agreement. The Partner hereby agrees to the terms and conditions of the EULAs and the Technical Support Agreement.

SECTION 2.3 Non-exclusivity. The Partner hereby acknowledges and agrees that all rights granted to the Partner are non-exclusive. JetApps reserves the right to grant such license, sublicensing and Resale rights to other Partners, as well as to appoint sales representatives, value added Partners, systems integrators or distributors for any JetApps product or service, including without limitation the Software and the Service. Nothing contained in this Agreement shall prohibit or otherwise restrict JetApps’s right to sell or license the Software, provide the Services or provide or offer any other product or service (including without limitation through the Software or Service) directly or indirectly at any time without incurring in each case any commission or other obligation to the Partner. In the event of the termination or expiration of this Agreement or any Purchased License, JetApps reserves the right to offer products and services, including without limitation the Software and Services, to any third party affected by such termination or expiration (or to refer such third parties to other JetApps licensees or affiliates).

SECTION 2.4 JetApps News and Updates. JetApps may from time to time email information to the Partner concerning JetApps products and services and other important Partner NOC information. This information may also be displayed in other designated interfaces.

Article 3

Sublicense and Resale

SECTION 3.1 Right to Sublicense Purchased Licenses. With respect to each Purchased License and solely during the term of such Purchased License, the Partner’s right to sublicense to its customers the right to use (but not the right to install or make a backup copy of) the Software is set forth in, and subject to the terms and conditions of, the EULAs. Notwithstanding anything to the contrary in the EULAs, the Partner’s right to sublicense the use of the Software shall be limited to (a) Internal Servers; and (b) solely during such time as the Partner qualifies for Distributor status, External Servers.

SECTION 3.2 Right to Resell Purchased Licenses. During the term of each Purchased License and subject to the terms and conditions of this Agreement, JetApps grants to the Partner the right to Resell any Purchased Licenses to its customers for the use and installation of the Software (a) on Internal Servers; and (b) solely during such time as the Partner qualifies for Distributor status, on External Servers. For purposes of this Agreement, “Resell” means to grant to a third party the right to enjoy all of the rights granted by JetApps in connection with a Purchased License provided that such third party agrees to the terms and conditions of the EULAs and the Technical Support Agreement. The Partner shall not Resell or offer for Resale a Purchased License (a) for a term greater than the term of such Purchased License; or (b) on terms that grant the Resale customer any rights greater than those granted by JetApps under the Purchased License. The Partner shall require all third parties who purchase Purchased Licenses on a Resale basis from the Partner to agree to the terms of the applicable EULA as a condition of the use or installation of the Software. Any Services provided by JetApps in connection with the Resale of a Purchased License shall be subject to the terms and conditions of the Technical Support Agreement.

SECTION 3.3 Right to Terminate. In the event that the Partner sublicenses or Resells (or attempts to sublicense or Resell) any Purchased Licenses in breach of this Agreement or the terms and conditions of such Purchased Licenses, the EULAs or the Technical Support Agreement, such conduct shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4.

SECTION 3.4 Suggested Resale Prices. Notwithstanding any suggested sublicense or Resale price provided by JetApps but subject to the terms conditions of this Agreement, the Partner may sublicense or Resell the Purchased Licenses at such prices and on such terms as determined by the Partner.

Article 4

Pricing and Payment Terms

SECTION 4.1 Fees. The Partner shall pay all fees due to JetApps under this Agreement in a timely manner in accordance with this Agreement. FOR THE AVOIDANCE OF DOUBT, ANY AND ALL LICENSE FEES OWED TO JETAPPS BY THE PARTNER SHALL NOT BE CONTINGENT UPON THE PARTNER’S ABILITY TO COLLECT SUBLICENSING FEES FROM ITS CUSTOMERS.

SECTION 4.2 Minimum NOC Commitment. The Partner shall purchase and at all times maintain a number of licenses equal to or greater than the Minimum NOC Commitment dollar amount set forth in Exhibit 1. If the Partner does not meet or exceed the Minimum NOC Commitment at the time an invoice is issued under this Agreement, (a) this Agreement shall automatically terminate without notice if the Partner does not within ninety days from the date of such invoice purchase and maintain sufficient licenses to meet or exceed the Minimum NOC Commitment; (b) the Partner’s failure to meet the Minimum NOC Commitment shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4; and (c) JetApps may invoice the Partner and the Partner agrees to pay for the deficit between the number of Purchased Licensed maintained by the Partner and the Minimum NOC Commitment. The Partner shall have the right to use the additional licenses invoiced pursuant to subsection 4.2(b) by JetApps subject to the terms and conditions of this Agreement.

SECTION 4.3 Partner Pricing Levels. The price for each license of the Software as of the Effective Date is set forth in Exhibit 2. JetApps reserves the right to unilaterally change all levels, discounts and prices in its sole discretion; provided, however, that JetApps shall make commercially reasonable efforts to notify the Partner of any changes to the levels, discounts and prices by sending an e-mail to the Partner pursuant to Section 14.5. JetApps shall provide updated pricing information from time to time at http://www.JetApps.com/legal/partner-pricing-terms or such other URL as JetApps may designate from time to time. Monthly pricing levels will be updated in the Partner Agreement. All pricing changes shall be effective 30 days from the date they are posted to JetApps’s website and Partner Agreement or 30 days from the date JetApps provides notice to the Partner pursuant to Section 14.5, whichever is earlier. The Partner may terminate this Agreement for convenience Pursuant to Section 11.1 in the event the Partner does not agree to the most recent change in pricing by JetApps.

SECTION 4.4 Payment Provisions.

(a) Due Date. All purchases of Monthly Licenses shall have net 5 terms. For Monthly Licenses, JetApps shall send the Partner invoices on the 15th of every month by e-mail pursuant to Section 14.5. Any Purchased Licenses added or removed before the 15th of each month will be reflected on the invoice for that month. Any Purchased Licenses added or removed after the 15th of each month will be reflected on the following month’s invoice. The Partner agrees that invoices are due and payable upon receipt of invoice. Additionally, the Partner agrees to pay JetApps in full no later than five days after the date the invoice is sent (the “Due Date”), unless otherwise agreed upon in writing by both parties.

(b) Payment Method. The Partner may make payment to JetApps by check, wire transfer, PayPal, credit card, or ACH. To pay by check, the Partner must make the check payable to “JetApps” and send the check to the address listed in Section 4.5 below. For wire transfer instructions, please contact customer service at [email protected]. The Partner must pay for any and all fees associated with its payment by wire transfer. All payments made by the Partner hereunder must be received by JetApps in immediately available funds by the Due Date. If the Partner uses any payment methods that require clearance before such funds are made available to JetApps, including, without limitation, by sending a check, then the Partner shall be responsible for making such payment in advance in order to ensure that the funds are cleared and made available to JetApps by the Due Date. In the event that any payments made by the Partner are not immediately made available to JetApps by the Due Date, then the Partner shall be obligated to pay all late fees charged pursuant to Section 4.6.

(c) Charge Backs and Returned Payments. The Partner will be charged $30.00 for any payments which are charged back, returned or dishonored for any reason. Any charge back, returned payment or dishonored payment shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4.

(d) Invoice Notices. JetApps may send the Partner reminders by e-mail from time to time regarding past due accounts. Notwithstanding such reminders, the Partner shall be solely responsible for payment of all fees on or prior to the Due Date. Late payment or nonpayment of fees by the Partner shall not be excused because the Partner did not receive a given reminder from JetApps.

SECTION 4.5 Invoice Disputes. Any dispute by the Partner of the charges reflected on any invoice must be made in writing to [email protected] or to ATTN: Legal Department at the address below:

JetApps
P.O. Box 772
San Clemente, California 92674

and received by JetApps within five (5) days of the date of the invoice. Any dispute raised by the Partner after five (5) days of the invoice’s date shall be deemed waived and forever barred. The Partner agrees to pay the full amount of any invoice pending resolution of any dispute.

SECTION 4.6 Late Fees. JetApps will assess and charge service and late fees for any and all invoices that the Partner fails to pay in full by the Due Date (each an “Overdue Invoice”). Such service and late fees shall be charged to the Partner as follows:

(a) for the first thirty day period after the Due Date, a service fee equal to one and half percent (1.5%) interest late fee on the total amount invoiced under the Overdue Invoice (and regardless of any partial payments thereon);

(b) for each thirty day period thereafter, an additional late fee of one and half  percent (1.5%) interest on the total amount invoiced under the Overdue Invoice (and regardless of any partial payments thereon) and accrued service and late fees; and

(c) are limited to 18% per annum.

By way of example only, if the amount owed under an Overdue Invoice is $5,000, and the Partner does not pay such amount in full until forty-five days after the Due Date, then the Partner shall be obligated to pay the sum of $5,151.12 calculated as follows: $5,000 for the original amount invoiced plus $75 for the service and late fee charged for the first thirty (30) day period after the Due Date (i.e., [1.5% x $5,000]) plus $76.12 for the late fee charged for the thirty (30) day period after the first late fee (i.e.,1.5% x [$5,000+$75]) for a total of $5,151.12. Service and late fees shall be charged to the Partner until JetApps receives full payment of the Overdue Invoice (and regardless of any partial payments thereon). All fees, including without limitation late fees, shall survive the termination of this Agreement and be applied to any judgment. Each Overdue Invoice constitutes an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4.

SECTION 4.7 Right to Terminate or Suspend. In the event that Partner fails to pay any amounts due under any invoice (including without limitation the first invoice) under this Agreement, such conduct shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4.

SECTION 4.8 Security Deposit. Any security deposit made by the Partner to JetApps in connection with the Application or this Agreement shall not prevent JetApps from suspending or terminating the Partner’s account for non-payment. Such deposit shall not be deemed a payment (including the Partner’s first monthly payment) owed by the Partner to JetApps; nor shall JetApps be obligated to apply such deposit to any outstanding amount. Rather, any such deposit shall be deemed a security deposit allowing the Partner to set up its account. Under no circumstances shall JetApps be required to segregate the Partner’s deposit or to pay interest on such deposit. JetApps may retain the deposit until JetApps determines in its sole discretion that the Partner’s account has remained in good standing and current for twelve consecutive months. At the conclusion of such period, JetApps may elect to apply the deposit to the Partner’s account balance. Any payment made by Partner after the Due Date, or any failure to pay an invoice will result in the forfeit of the security deposit.

Article 5

Distributor

This Section is reserved for future use.  JetApps does not have nor does it currently seek any Distributors.

Article 6

Covenants and Operations

SECTION 6.1 Conduct of Partner Operations. Any operations of the Partner in connection with this Agreement shall be subject to the sole control and management of the Partner. The Partner shall be responsible for all its own expenses and employees, and shall provide, at its own expense, such office space and facilities, and hire and train such personnel, as may be required to carry out its obligations hereunder. The Partner agrees that it shall incur no expenses chargeable to JetApps. The Partner shall, at all times, conduct its business in a manner that will reflect favorably upon JetApps and any JetApps products or services. The Partner shall not make any false or misleading representations concerning JetApps and any JetApps products or services. The Partner shall not make any representations concerning the specifications, features, capabilities and warranties applicable to any JetApps products or services inconsistent with those set forth in the EULAs, product descriptions or promotional materials provided by JetApps.

SECTION 6.2 Compliance With Applicable Law. The Partner shall, at its sole expense, obtain all registrations, licenses and permits required to perform its obligations hereunder, pay all taxes and fees due in connection with the purchase, sale, Resale or licensing hereunder and comply with any and all Applicable Laws.

SECTION 6.3 Export Controls. Without limiting Section 6.2 above and notwithstanding anything to the contrary in this Agreement, the Partner agrees that it shall not, directly or indirectly, use, install, sublicense or Resell any Purchased Licenses in or to any country or any person where such use, installation, sublicense or Resale of the Software would be prohibited by virtue of any Applicable Law.

SECTION 6.4 Partner Contact Information. The Partner shall promptly notify JetApps in accordance with Section 14.5 of all changes in Partner’s name, e-mail addresses, billing addresses, telephone numbers, contact information and other information provided in the Application.

SECTION 6.5 Sublicensee Contact Information. In connection with the Partner’s sublicensing or Resale of the Software (as the case may be), the Partner shall provide JetApps with all necessary information regarding the Partner’s customer in order for JetApps to activate the sublicense and monitor the use thereof, including, without limitation, the name and e-mail address of the customer, the Internet Protocol Address of the customer’s server and the customer’s contact information. The Partner shall obtain all necessary consents, permissions and licenses from such customer and provide all necessary notices to such customer to lawfully provide the foregoing information to JetApps.

SECTION 6.6 Software Updates. The Partner shall be responsible for updating the Software within one major release of the most current version of the Software. For example, if the most current version of the Software is 11.8.0, the Partner must update the Software to at least version 10.8.0. This will ensure proper software fixes and JetApps’s ability to provide the Services. Notwithstanding the foregoing obligation in this Section 6.6, JetApps may elect to have the Software automatically download and install updates from time to time from JetApps. These updates shall be designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the Software. The Partner agrees to receive such updates and permit JetApps to deliver these to the Partner and the Partner’s customers.

SECTION 6.7 Marketing and Publicity. Partner shall: (a) on a reasonable basis, serve as a product reference for the Software and other JetApps products and services and to work with JetApps to develop a written “informative source story” concerning the Software and other JetApps products and services for public distribution; (b) issue a mutually approved press-release concerning the parties’ business dealings on the Partner’s website and via other mutually approved means of distribution, such press release to include information about the nature of the parties’ business arrangement; and (c) subject to Section 8.2 and in a manner approved by JetApps, feature the JetApps logo and other JetApps Trademarks prominently on the Partner’s web site in relation with Software and other JetApps products and services featured by Partner on its web site.

Article 7

Technical Support

SECTION 7.1 Provision of Services to Partner Subject to the terms and conditions of the Technical Support Agreement, JetApps shall use commercially reasonable efforts to provide the Services to the Partner through the Customer Billing Interface. With respect to each of Partner’s Purchased Licenses, JetApps shall provide the Services solely during the term of license. The Partner shall be entitled to submit a commercially reasonable number of Incidents as determined by JetApps in its sole discretion. The excessive and unreasonable submission of Incidents by the Partner (as determined by JetApps in its sole discretion) shall constitute an Event of Default and give rise to JetApps’s termination and suspension rights under Section 11.4. Subject to the terms and conditions of the Technical Support Agreement, JetApps will use commercially reasonable efforts to prioritize all Incidents submitted by the Partner through the Customer Billing Interface above any support requests submitted by other means. The Partner may purchase Telephone Support (as that term is defined in the Technical Support Agreement) independently of this Agreement.

SECTION 7.2 Provision of Services to Partner Customers. The Partner shall provide technical support services concerning the Software to its customers. In the event the Partner is unable to resolve a customer’s Software-related technical support issue, the Partner may on behalf of the customer submit an Incident to JetApps and JetApps shall use commercially reasonable efforts to provide the Services to the Partner’s customer subject to the terms and conditions of the Technical Support Agreement. Such Partner-submitted Incidents may only be related to Internal Servers.

SECTION 7.3 Service-Related Documents. The Partner shall provide to its customers and post on its website such information and documents provided by JetApps relating to the Software, such as installation guides and support forums. The Partner hereby acknowledges that JetApps owns and will retain all Intellectual Property Rights to such information and documents.

SECTION 7.4 Scope of Services. As set forth in greater detail in the Technical Support Agreement, JetApps shall have no obligation whatsoever to provide technical support for any issue unrelated to the Software, including, but not limited to, operating system issues.

Article 8

Intellectual Property

SECTION 8.1 Partner Trademarks. In the event that the Partner’s account remains in good standing and current for at least thirty days, the Partner may request that JetApps place the Partner Trademarks (as defined below) on JetApps’s website, which JetApps may approve, condition or deny in JetApps’s sole discretion. The Partner hereby grants to JetApps a worldwide, nonexclusive, nontransferable (except by operation of law), royalty-free license to place the Partner’s trademarks, service marks, logos, trade names, trade dress or other brand feature (“Partner Trademarks”) on JetApps’s website and otherwise use the Partner Trademarks in connection with the advertising, promotion, marketing, sale or offer for sale, licensing or offer for licensing of the Software and any JetApps products and services offered by or through the Partner. The Partner shall execute and deliver all documents and agreements required by JetApps in connection with the foregoing license. The Partner hereby represents and warrants that it is the lawful owner of any Partner Trademarks provided to JetApps for use on the JetApps website and that has the authority to grant the license as provided thereunder and in this Section 8.1. The Partner shall indemnify, defend and hold JetApps harmless from any and all claims arising from JetApps’s use of such Partner Trademarks.

SECTION 8.2 JetApps IP Rights.

(a) Ownership. JetApps owns all right, title and interest, including all Intellectual Property Rights, in and to, the Software and the JetApps Trademarks (collectively, “JetApps IP Rights”).

(b) License to JetApps Trademarks. Subject to the terms and conditions of this Agreement, JetApps may grant to the Partner a nonexclusive, nontransferable, non-sublicensable license to use the JetApps Trademarks, solely for the purpose of advertising the JetApps products offered by JetApps hereunder; provided, however, that prior to using such JetApps Trademarks, the Partner and JetApps shall enter into a Trademark License Agreement substantially in form and substance as the agreement located at http://www.JetApps.com/legal/trademark-policy (or such other URL as may be designated by JetApps from time to time). Any use of the JetApps Trademarks shall be subject to, and be in accordance with, JetApps’s Trademark Usage Policy which is available at http://www.JetApps.com/legal/trademark-policy, and which JetApps may revise, amend and/or supplement from time to time in its sole discretion. The Partner shall review JetApps’s Trademark Usage Policy from time to time for changes. All uses of the JetApps Trademarks shall inure to the benefit of JetApps and the Partner shall acquire no rights as a result of such uses.

(c) Restrictions of Use. In the absence of an executed trademark license agreement between JetApps and the Partner as provided in Section 8.2(b), this Agreement does not authorize the Partner to use the JetApps Trademarks. Additionally, the Partner will not (a) assert any Intellectual Property Right in the JetApps Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest JetApps’s ownership of any of the JetApps Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name (unless expressly granted permission to do so by JetApps in writing), any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the JetApps Trademarks.

(d) No Contest of JetApps IP Rights. The Partner acknowledges and agrees that the JetApps IP Rights are and shall remain the sole and exclusive property of JetApps. The Partner agrees that it shall never oppose, seek to cancel, or otherwise contest JetApps’s ownership of the JetApps IP Rights or act in any manner that would or might conflict with or compromise JetApps’s ownership of the JetApps IP Rights, or similarly affect the value of the JetApps IP Rights. Whenever requested by JetApps, the Partner shall execute such documents as JetApps may deem necessary or appropriate to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights. In the event JetApps is unable, after reasonable effort, to secure the Partner’s signature on any document or documents needed to apply for or to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights for any other reason whatsoever, the Partner does hereby irrevocably designate and appoint JetApps as the Partner’s duly authorized attorney-in-fact, to act for and on the Partner’s behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights with the same legal force and effect as if executed by the Partner.

(e) Infringement of JetApps IP Rights. In the event the Partner becomes aware that any third party is, or may be, infringing the JetApps IP Rights, the Partner agrees to notify JetApps of such fact pursuant to Section 14.5.

Article 9

Representations and Warranties

SECTION 9.1 Mutual Representations and Warranties. Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions.

SECTION 9.2 Partner’s Representations and Warranties. The Partner hereby represents and warrants to JetApps as follows:

(a) All information provided by the Partner in the Application is true and correct and does not omit any statement of a material fact required to be stated or necessary in order to make the statements contained therein not misleading;

(b) All accounts which Partner has with any Partner are current with no outstanding amounts overdue;

(c) The Partner has not relied upon any statement, representation, warranty, or agreement of JetApps except for those expressly contained in this Agreement; and

(d) The Partner will comply with all Applicable Laws related to the Software, the Services, the performance of its obligations under this Agreement and with respect to the Partner’s business operations and practices.

SECTION 9.3 Other Representations and Warranties. Any and all representations and warranties (a) relating to the Software shall be as set forth in the EULAs; and (b) relating to the Services shall be set forth in the Technical Support Agreement.

Article 10

Indemnification

SECTION 10.1 Indemnification by the Partner The Partner shall indemnify, defend and hold harmless JetApps and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and JetApps affiliates (and their directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “JetApps Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the JetApps Parties or any one of them in connection with any third-party claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of the Partner’s representations, warranties or obligations under this Agreement; (b) an allegation that the Partner made any false, misleading, or incorrect representations or warranties with respect to any JetApps product or service, including without limitation the Software and Services; (c) JetApps’s exercise of its termination and suspension rights under Section 11.4 upon the occurrence of an Event of Default; or (d) any Claim relating to or arising in connection with the purchase, license or sublicense of any JetApps product or service by a Partner customer from the Partner, including, but not limited to, claims relating to the failure of the Software; provided, however, that in any such case JetApps or its affiliates, as applicable, (i) provide the Partner with prompt notice of any such claim; (ii) permit the Partner to assume and control the defense of such action upon the Partner’s written notice to JetApps of the Partner’s intention to indemnify; and (iii) upon the Partner’s written request, and at no expense to JetApps or its affiliates, provides to the Partner all available information and assistance reasonably necessary for the Partner to defend such claim. The Partner will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the JetApps Parties without JetApps’s prior written consent, which will not unreasonably be withheld. The Partner will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by JetApps or its affiliates in connection with or arising from any such claim.

SECTION 10.2 Indemnification by JetApps. JetApps shall indemnify, defend and hold harmless the Partner and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns (collectively, the “Partner Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Partner Parties or any one of them in connection with any third-party Claims related directly or indirectly to or arising out of an allegation that the Software, or its use or sublicense as permitted in this Agreement, constitutes an infringement in the United States of any patent or copyright issued in the United States; provided, however, that in any such case the Partner (i) provides JetApps with prompt notice of any such claim; (ii) permit JetApps to assume and control the defense of such action upon JetApps’s written notice to the Partner of JetApps’s intention to indemnify; and (iii) upon JetApps’s written request, and at  no expense to the Partner, provides to JetApps all available information and assistance reasonably necessary for JetApps to defend such claim. JetApps will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Partner without the Partner’s prior written consent, which will not unreasonably be withheld. JetApps will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Partner in connection with or arising from any such claim.

Article 11

Term and Termination

SECTION 11.1 Term. The term of this Agreement shall commence on the Effective Date and continue year after year until either party gives notice of termination for convenience pursuant to Section 11.2 or either party terminates this agreement for cause. “Term” means the Initial Term and any Renewal Terms.

SECTION 11.2 Termination for Convenience. Either party may give notice during the Term of its intent to terminate this Agreement for convenience. Such termination of this Agreement shall be effective (a) if given by JetApps, upon the expiration of all Monthly Licenses maintained by the Partner still in effect 30 days after JetApps’s notice of termination for convenience; or (b) if given by the Partner, 60 days after the Partner’s notice of termination for convenience. In the event that either party gives notice of its intent to terminate for convenience, the Partner shall as of the date of the notice lose the right to purchase  new Monthly Licenses pursuant to Article 2 or to renew any Monthly Licenses.

SECTION 11.3 Termination by a Party for Cause. Either party may terminate this Agreement in the event that the other party breaches this Agreement. In the event of a breach that is incapable of cure, the non-breaching party may terminate this Agreement immediately by giving written notice of termination to the breaching party. In the event of a breach that is capable of cure, the non-breaching party may terminate this Agreement by giving written notice of termination if the breaching party fails to cure its breach, to the satisfaction of the non-breaching party, within thirty (30) days of receiving written notice of the breach.

SECTION 11.4 Termination by JetApps for Cause. Notwithstanding anything to the contrary in this Agreement, upon the occurrence of an Event of Default, JetApps may in its sole discretion elect to immediately with or without notice (i) terminate this Agreement; (ii) terminate any Purchased Licenses associated with an Event of Default; or (iii) exercise its suspension rights pursuant to Section 11.6. In addition to the other Events of Default designated in throughout this Agreement, each of the following events constitute an Event of Default:

(a) the Partner breaches any material representation, warranty or the terms and conditions of this Agreement or any other agreement between the Partner and JetApps, including without limitation: JetApps’s Trademark Usage Policy, the EULAs, the Technical Support Agreement or any trademark license agreement between the parties (if applicable);

(b) engaging in any conduct disparaging to JetApps, including any conduct inconsistent with JetApps’s rights, title and interest in and to the JetApps IP Rights;

(c) the Partner distributes Internal Licenses as External Licenses; or

(d) the Partner fails to make any timely payments owed to any Partner or Distributor.

SECTION 11.5 Effect of Termination.

(a) Effect of Termination for Convenience. Upon the termination of this Agreement pursuant to Section 11.1, (i) all of the Partner’s rights under this Agreement shall immediately cease (except with respect to the right to sublicense and Resell then-existing Monthly Licenses which shall continue until the expiration of their respective terms); (ii) any Monthly Licenses then-existing shall continue until the expiration of their respective terms subject to the terms and conditions of the EULAs; and (iii) JetApps shall provide the Services with respect to each Monthly Licenses thenexisting (x) subject to the terms and conditions of the Technical Support Agreement; and (y) solely during the term of each respective Monthly License.

(b) Effect of Termination for Cause. Upon the termination of this Agreement for any reason other than for convenience, (i) all of the Partner’s rights under this Agreement shall cease; (ii) all licenses granted in connection with this Agreement, including without limitation all Purchased Licenses, sublicenses granted by the Partner, sublicenses granted by the Partner’s customers to third party sublicensees and Resold licenses shall immediately terminate; (iii) JetApps shall not be obligated to provide the Services; and (iv) JetApps may terminate any other agreement between the Partner and JetApps, including without limitation the JetApps EULAs, Technical Support Agreement and any trademark license between the parties (if applicable); provided, however, that the provisions of such terminated agreements shall survive termination according to the terms of each respective agreement.

(c) Survival. The following Articles and Sections shall survive the termination or expiration of this Agreement for any reason: Article 1, Section 2.2, Section 2.4, Article 4 and Articles 8, 10, 11, 12, 13 and 14.

SECTION 11.6 JetApps Suspension Rights. In the event of (a) an Event of Default; (b) any breach by the Partner of this Agreement, JetApps’s Trademark Usage Policy, the EULAs, the Technical Support Agreement or any trademark license agreement between the parties (if applicable); or (c) any breach of the foregoing agreements or of any Third Party Agreement or Third Party Support Agreement (as such terms are defined in the EULAs and Technical Support Agreement, respectively) by a customer or sublicensee of the Partner, JetApps shall have the option (but not the obligation) to, until such time as the Partner has cured the breach to JetApps’s satisfaction, (i) suspend or disable the Partner’s use of or access to the Software; (ii) suspend or disable the access or use of the Software by the Partner’s customers or any third party sublicensees; (iii) suspend provision of the Services to the Partner or the Partner’s customers or any third party sublicensees; and (iv) suspend or terminate the Partner’s status as a Partner. Such election by JetApps shall not be deemed a waiver of any applicable termination right under this Agreement, which JetApps may exercise at any time in its sole discretion.

SECTION 11.7 Suspension of Software Access. In exercising any suspension or termination right under this Agreement, JetApps may in its sole discretion exercise its suspension or termination with respect to the Software by any technological means at JetApps’s disposal, including, without limitation, the Authentication System referenced in the EULAs.

Article 12

Disclaimer

SECTION 12.1 THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND JETAPPS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, SERVICES AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. JETAPPS DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, SERVICES OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, THE PARTNER MUST ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF JETAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.

SECTION 12.2 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.

Article 13

Limitation of Liability

SECTION 13.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETAPPS WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF JETAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SECTION 13.2 Total Cumulative Liability. EXCEPT FOR AMOUNTS OWED BY THE PARTNER TO JETAPPS UNDER ARTICLE 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETAPPS’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY JETAPPS UNDER THIS AGREEMENT.

Article 14

Miscellaneous

SECTION 14.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.

SECTION 14.2 Independent Contractors. Nothing in this Agreement shall be construed to create an agency relationship between the Partner and JetApps, and the Partner hereby agrees that it shall not represent or otherwise convey to any third party that it is an agent, legal representative or employee of JetApps. Neither the Partner nor any director, officer, agent or employee of Partner, shall be, or be considered, an employee, legal representative or agent of JetApps for any purpose whatsoever. The Partner is not granted, and shall not exercise, any right or authority to assume or create any obligation or responsibility on behalf of or in the name of JetApps, including without limitation, contractual obligations and obligations based on warranties or guarantees.

SECTION 14.3 Choice of Law; Venue; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts sitting in the County of Los Angeles, California. For purposes of this Agreement, the parties hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in the County of Los Angeles, California.

SECTION 14.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written. Any prior versions of the Exhibits agreed to by the Partner shall be superseded by the information contained at the respective Exhibits’ URLs. The provisions of this Agreement and its Exhibits may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. The Partner agrees that any provision in the Partner’s purchase orders, billing statements, acknowledgment forms, written or oral order, offer communication, or any other document incidental hereto, which is inconsistent with, conflicts with, or deletes or adds to this Agreement and its Exhibits, shall be of no force or effect, and this Agreement shall apply and control in all cases.

SECTION 14.5 Notices.

(a) Electronic Notices. Any electronic notice required or permitted to be given under this Agreement shall be deemed properly given (i) by JetApps if e-mailed to the Administrative/Billing or Emergency Contact e-mail address provided by the Partner in the Application; and (ii) by the Partner if submitted via JetApps’s ticketing system.

(b) Written Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and personally delivered or mailed by certified U.S. mail, postage prepaid with return receipt requested, at the addresses set forth below:

(c) Effect of Written Notices. The date of personal delivery or mailing of any written notice shall be deemed the date of service of such notice. The Partner hereby consents that it shall be deemed personally served in connection with any legal proceedings filed by JetApps upon service by certified mail of the appropriate pleading or order to the address set forth in this Section 14.5; provided, however, that the Partner may also be deemed properly served by any other means permitted by Applicable Law.

(d) Authorized Representatives. Only the contacts listed on the Partner’s account may contact JetApps directly to request sensitive account information or change company information.

(e) Updates to Contact Information. Any party hereto may by written notice change the physical or electronic address to which notice or other communications to such party are to be delivered or mailed. For the avoidance of doubt, it shall be the Partner’s duty and obligation to notify JetApps in writing pursuant to this Section 14.5 of any changes to the address and other contact information. Any failure by the Partner to provide JetApps with notice of its updated contact information shall not diminish the effectiveness of notices sent by JetApps to the Partner’s last-known contact information under this Agreement.

SECTION 14.6 Attorneys’ Fees. In the event of a dispute between the parties, the prevailing party to such dispute shall be entitled to be reimbursed by the other party its reasonable attorneys’ fees and costs incurred in connection with the dispute.

SECTION 14.7 Time-Limited Claims. Regardless of any Applicable Law to the contrary, the Partner agrees that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or it will be forever barred.

SECTION 14.8 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.

SECTION 14.9 Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.

SECTION 14.10 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 14.10. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by JetApps in its sole discretion; or (b) by the Partner with the prior written consent of JetApps. In addition, JetApps may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that JetApps will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 14.10, including without limitation by operation of law, is null and void.

SECTION 14.11 Amendment or Modification. JetApps may amend this Agreement at any time by sending written or electronic notice of such amendment to the Partner pursuant to Section 14.5; provided, however, that the Partner may terminate this Agreement for convenience pursuant to Section 11.1 in the event that the Partner does not agree to any material change to the terms and conditions of this Agreement. The Partner shall be obligated and responsible for checking for any additional or updated information posted on JetApps’s website at http://www.JetApps.com relating this Agreement and/or the Partner, including, without limitation, those matters referred to in this Agreement, which for purposes of this Agreement shall be considered and deemed due notice thereof to the Partner. THE PARTNER SHALL BE RESPONSIBLE FOR REVIEWING ALL COMMUNICATIONS FROM JETAPPS TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. THE PARTNER SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE OR SUBLICENSE JETAPPS PRODUCTS AFTER INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO THE PARTNER.

SECTION 14.12 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not effect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

SECTION 14.13 Confidentiality. The parties agree that the terms and conditions of this Agreement are and shall remain confidential and shall not disclose the same absent legal compulsion to do so. In the event that the Partner is required to disclose any of these terms and conditions under any Applicable Law, the Partner shall promptly notify JetApps in writing of such requirement prior to disclosure in order to afford JetApps an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.

SECTION 14.14 Construction. Section headings are for convenience of reference only and shall not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement.

SECTION 14.15 Counterparts. This Agreement may be executed in several counterparts or with counterpart signature pages, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same Agreement.

IN WITNESS WHEREOF, intending to be legally bound thereby, the parties have executed this Agreement as of the Effective Date.

Exhibits