Partner Program Agreement

By clicking on “I agree” (or a similar box or button) when you sign up for a Partner Account, using the Partner Platform or participating in any Partner Program activities, you agree to be bound by the applicable sections of the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.), ApyApp Pty Ltd. (“ApyApp Pty Ltd.” or “ApyApp Entity”). Each of Partner and ApyApp a “Party”, and together the “Parties”. You can review the current version of the Agreement at any time at ApyApp.com/partners/terms. ApyApp reserves the right to update and change the Agreement by posting updates and changes here: ApyApp.com/partners/terms. If a significant change is made, we will provide reasonable notice by email, posting a notice on the ApyApp Partner Blog or in the Partner Dashboard. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement addresses different types of Partner activities. Part A applies to all Partners.

You must read, agree with and accept all of the terms and conditions contained in this Agreement, including ApyApp’s Privacy Policy and ApyApp’s Acceptable Use Policy, before you may become a Partner. For the avoidance of doubt, ApyApp’s Privacy Policy and ApyApp’s Acceptable Use Policy form part of this Agreement and are incorporated by reference. For the purposes of the Partner Program and this Agreement, all references to “Account” and “Services” in ApyApp’s Acceptable Use Policy will be deemed to refer to “Partner Account” and “Services or Partner’s participation in the Partner Program”, respectively. Some types of ApyApp Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Everyday language summaries are provided for convenience only and are not legally binding. Please read the entire Agreement for the complete picture of your legal requirements. This Agreement governs your activities as a Partner, including access to the Partner Dashboard and participation in the activities described on the Partner Program website. Be sure to occasionally check back for updates.

Part A – Terms Applicable to All Partners

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Ads” means advertisements created by Developer and placed in the ApyApp App Store through the features set forth in the Partner Dashboard.

“Application” or “App” is defined in the ApyApp API Terms.

“Channel Program” means ApyApp’s sales channel program that allows Channel Developers to build a Channel Application using the Sales Channel SDK.

“Customer” means any individual that visits or transacts via the Merchant Store.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

“Development Store” means a store created in the Partner Dashboard that is used by a Partner for (a) testing purposes, or (b) for the development and transfer of a Merchant Store to a Merchant.

“Experts Marketplace” means ApyApp’s program for Experts that matches enrolled Experts with Merchants seeking assistance with their business.

“Merchant” means an individual or business that uses the Service to sell products or services.

“Merchant Agreement” means the agreement entered into between a Partner and the Merchant governing the Merchant’s use of the Partner’s services, including, if applicable, the installation and use of an Application.

“Merchant Data” means information (including personal information) relating to a Merchant, including but not limited to business, financial and product information and any Customer Data. Where Partner uses the ApyApp API, Merchant Data may be delivered in the form of an API response.

“Merchant Store” means the Merchant’s commerce presence hosted by ApyApp, including their online store and Point of Sale (POS). For clarity, a Merchant may have more than one Merchant Store.

“Partner” or “You” means an individual or entity that has agreed to the terms of this Agreement and participates in the ApyApp Partner Program. The different types of Partners are listed below:

A “Referral Partner” is a Partner who has registered for a Partner Account via the ApyApp partner program page and who promotes the service by:

a. registering, and being approved by ApyApp, for a unique referral link (an “Affiliate Link”) to refer Merchants to ApyApp via such Affiliate Link or

b. acting as a value added partner or “VAP” working directly with Merchants as a designer, developer, or other consultant through a Development Store.

A “Developer” is a Partner who has registered for a Partner Account via the ApyApp Developer program page and develops Applications or Themes to integrate with the Service or places Ads in the ApyApp App Store. The different types of Developers are listed below:

a. a “Theme Developer”, develops a Theme for Merchant use, either as a custom Theme or for general distribution to Merchants through the ApyApp Theme Store;

b. an “App Developer” develops a Public Application (as defined in the ApyApp API Terms) using the ApyApp API;

c. a “Channel Developer” develops an Application using the ApyApp API to enable Merchants to display, promote and sell Merchant’s products to Customers through Channel Developer’s web or mobile platform (“Channel Platform”) via an integration with the Service. An Application developed by a Channel Developer is a “Channel Application”; and

d. a “Payment Gateway Developer” develops an Application using the ApyApp API to enable a payment system for Merchants to use with the Service. An Application developed by a Payment Gateway Developer is a “Payment Gateway Application”.

An “Expert” is a VAP who has been accepted by ApyApp into the ApyApp Experts program, and is listed in the ApyApp Experts Directory.

A “Plus Partner” is a Partner who has met the ApyApp Plus Partner criteria and has been accepted by ApyApp into the ApyApp Plus Partner Program, has signed a Plus Partner Program addendum, and is listed on the ApyApp.com/plus/partners.

“Partner Account” means a ApyApp Partner Program account.

“Partner Dashboard” means the internal administrative page available at: partners.ApyApp.com/organizations that allows Partners to manage their Partner Account.

“Partner Manager” means the ApyApp employee designated by ApyApp from time to time as the Partner’s primary ApyApp contact.

“Payment Period” has the meaning as set out in Section 3.2.

“Partner Program” means the resources made available by ApyApp to Partners. For the avoidance of doubt, the Partner Program includes the Channel Program, Experts Marketplace Program and Plus Partner Program, to the extent that Partner is invited to participate in those programs.

“Plus Partner Program” means the ApyApp program where Partners are selected by ApyApp to participate in ApyApp Plus opportunities.

“Public Application” is defined in the ApyApp API Terms.

“Referred Merchant” means any unique Merchant that: (a) has registered for a paid ApyApp account; and (b) was introduced by a Referral Partner that actively promoted the Service.

“Revenue Generating Activity” means a revenue generating activity carried out by Partner, as determined by ApyApp, including the following:

transfer to Merchant by Partner of a Development Store created by Partner and the registration by such Merchant for a paid ApyApp account; and

introduction of a Referred Merchant to ApyApp via Partner’s Affiliate Link.

A Revenue Generating Activity will be attributed to Partner on the date the Merchant makes the initial payment of subscription fees for the relevant Merchant Store. For more information regarding Revenue Generating Activities, please refer to https://help.ApyApp.com/partners/getting-started/how-to-earn.

“Service” means the ApyApp hosted commerce platform available via www.ApyApp.com and any associated websites, products or services offered by ApyApp.

“Sales Channel SDK” means the ApyApp APIs that are required by Channel Developer to develop the Channel Application. For the avoidance of doubt, the Sales Channel SDK is deemed to be part of the ApyApp API, and access to and use of the Sales Channel SDK is subject to the ApyApp API Terms.

“ApyApp API” is defined in the ApyApp API Terms. “ApyApp API Terms” means the ApyApp API License and Terms of Use available at ApyApp.com/legal/api-terms.

“ApyApp App Store” is where Merchants can view and install Apps on their Merchant Store, and is available through: apps.ApyApp.com.

“ApyApp Billing API” means the application programming interface that allows Developers to create and issue charges to Merchants as well as remit payment to ApyApp. For the avoidance of doubt, the ApyApp Billing API is deemed to be part of the ApyApp API, as defined in the ApyApp API Terms.

“ApyApp Creative” means any marketing or promotional materials relating to ApyApp or ApyApp brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the ApyApp Trademarks.

“ApyApp Plus” or “Plus” means the enterprise level of the Service, described in more detail at ApyApp.com/plus.

“ApyApp Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, ApyApp; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“ApyApp Trademarks” means the trademarks, logos, service marks and trade names of ApyApp Pty Ltd. and any ApyApp Related Entities, whether registered or unregistered, including but not limited to the word mark ApyApp and the “S” and shopping bag design.

“ApyApp Theme Store” means the ApyApp website where Merchants can select and install Themes on their Merchant Store, available at: themes.ApyApp.com.

“Taxes” means all taxes, federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.

“Theme” means the templates for website layout and design that Merchants may install, use and customize for their Merchant Store.

“Websites” means any websites that are owned, operated or managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

2. Partner Responsibilities

2.1. Marketing Activities

Partner will bear all costs and expenses related to Partner’s marketing or promotion of ApyApp or any ApyApp Related Entity, and, as applicable, Partner’s Applications, Themes, Websites, Channel Platform, or Partner’s other products or services associated with Partner’s participation in the Partner Program (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by ApyApp in its sole discretion.

In no event will Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to ApyApp to send emails regarding the offering of ApyApp and ApyApp Related Entities to the individuals on the Opt-in List (and ApyApp may, in its sole discretion, allow Partner to send such emails). In conducting all Partner Marketing Activities, Partner will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”. Unless Partner has secured the applicable Merchant’s consent first, Partner will not email any Merchant whose email address they have received via ApyApp.

Without limiting the generality of Section 2.1.2, Partner will (i) not send any email regarding ApyApp or ApyApp Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information in any email regarding ApyApp, ApyApp Related Entities, the Service or the ApyApp platform; and (iii) not imply that such emails are being sent on behalf of ApyApp or ApyApp Related Entities.

A Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to ApyApp or ApyApp Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to ApyApp or ApyApp Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to ApyApp or ApyApp Related Entities; (iv) solicit Merchants to leave the ApyApp Service; (v) copy, resemble or mirror the look and feel of ApyApp’s websites, ApyApp Trademarks or Services or otherwise misrepresent Partner’s affiliation with ApyApp or ApyApp Related Entities; or (vi) engage in any other practices which may adversely affect the credibility or reputation of ApyApp or ApyApp Related Entities, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to ApyApp or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates the Acceptable Use Policy.

2.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

2.3. Partner Duty to Inform

Partner will promptly inform ApyApp of any information known to Partner that could reasonably lead to a claim, demand or liability of or against ApyApp or the ApyApp Related Entities by any third party.

2.4. Partner Duty to Disclose

If Partner is acting as an agent on behalf of a Merchant, then Partner will disclose to the Merchant any Fees that Partner is entitled to receive from ApyApp in accordance with this Agreement that are associated with such Merchant.

2.5. Other Partner Terms

If the Partner is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Partner activities.

You confirm that you are becoming a Partner for the purposes of carrying on a business activity and not for any personal, household or family purpose.

To become a Partner, Partner must create a Partner Account by providing all information indicated as required. ApyApp may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that ApyApp will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. ApyApp cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.

If you sign up for a Partner Account on behalf of your employer, your employer will be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by Partner’s employees, agents or subcontractors.

Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.

Partner acknowledges and agrees that ApyApp may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on ApyApp’s website, available at ApyApp.com/partners/terms and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, ApyApp will provide reasonable notice by email, posting a notice on the ApyApp Partner Blog or in the Partner Dashboard. Partner’s continued participation in the ApyApp Partner Program after the amended Partner Program Agreement is posted to ApyApp’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the ApyApp Partner Program.

Partner acknowledges and agrees that Partner’s participation in the ApyApp Partner Program, including information transmitted to or stored by ApyApp, is governed by the ApyApp Privacy Policy found at ApyApp.com/legal/privacy.

3. Fees and Payments

3.1. Revenue Sharing Plans

Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner will be entitled to receive certain fees from ApyApp (the “Fees”). The revenue sharing plans applicable to the different types of Referral Partners are set out in Part B. The revenue sharing plans applicable to the different types of Developers are set out in Part C. The revenue sharing plans applicable to Experts and the Plus Partner Program are set out in Part D.

3.2. Payment

Fees due to Partner under the Reference Plan will be calculated by ApyApp once per month upon receipt of payment from the Merchant, for each month that the Referred Merchant Store is active, provided that Partner has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period (as set out in Part B, Section 3.1). Fees due to Partner under the App Plan (where the App Developer uses the ApyApp Billing API) or the Theme Plan will be calculated by ApyApp upon receipt of payment from the Merchant for the applicable App or Theme. Fees for Apps with recurring billing will be calculated by ApyApp upon receipt of payment for each month that the App is installed on the Merchant Store. Fees due to Partner under the Bounty Plan will be calculated by ApyApp once per month upon receipt of subscription revenue from the Merchant for two consecutive months.

ApyApp distributes Fees owing to its Partners twice per calendar month (each such period, a “Payment Period”). The first Payment Period occurs during the first half of the month, and the second Payment Period occurs during the second half of the month. The Fees described in Section 3.2.1 will be paid in either the first Payment Period or the second Payment Period, depending on the date that the Fee was calculated by ApyApp. Where the Fees owing to Partner are greater than USD $25 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than USD $25 at the end of any Payment Period, ApyApp will be entitled to withhold payment of Fees until the end of the next Payment Period in which the balance of unpaid Fees owing to Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period are USD $25 or more.

Partners are responsible for all applicable Taxes that arise from or as a result of any activities under this Agreement or with respect to Partners dealings with a Merchant. If Taxes are not collected by ApyApp in respect of a Partner transaction with a Merchant facilitated by ApyApp, Partner is responsible for determining if Taxes are payable on such transaction, and if so, self-remitting Taxes to the appropriate tax authorities.

[ApyApp will issue you an invoice for any commission fees ApyApp is charging you for activities like app sales, theme sales, and service sales. ApyApp will prepare an invoice, on your behalf, to ApyApp for any commission fees that ApyApp pays to you for referral activities. Fee and commission invoices are generated when a payout is processed. You can't view invoices for pending transactions.][This Section 3.2(4) to be effective as of June 1, 2020.]

For App Developers who obtain ApyApp’s express written permission to forego use of the ApyApp Billing API, the App Developer will submit payments due under the App Plan to ApyApp monthly by way of wire transfer or Automated Clearing House (ACH). The App Developer is responsible for contacting app-commissions@ApyApp.com to obtain the necessary banking information to execute the transfer. If the balance owed to ApyApp is less than USD $1,000, App Developer may defer payment until the outstanding balance at the end of a payment period is USD $1,000 or more. If Developer owes ApyApp any amounts for Ads pursuant to Part E, Section 1 below, then ApyApp may reduce the Fees paid to Developer by offsetting amounts due from Developer to ApyApp for Ads against Fees due from ApyApp to Developer under this Agreement.

3.3. Additional Payment Information

All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld by ApyApp during the period of investigation.

Notwithstanding anything to the contrary in this Agreement, ApyApp will not be responsible to pay any Fees:

a. related to amounts that have been refunded to Merchants by ApyApp; b. for a Referred Merchant created or owned in whole or in part by a Partner; c. related to fraudulent sales; d. related to revenues that have been subject to chargebacks; e. to Partners who are employed by ApyApp (whether full-time, part-time, term or any other employment-type relationship); or f. to Partners who are employed by the Merchant to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).

If any Fees paid by ApyApp are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.2, or to have been paid in error, ApyApp will have the right, at its sole discretion, to: (A) reclaim any Fees paid to Partner in error; or (B) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to ApyApp, Partner will pay to ApyApp the remaining balance within thirty (30) days of the effective date of termination of the Agreement.

ApyApp reserves the right to modify the Fees or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on the ApyApp blog or in the Partner Dashboard. In the event of any disputes over Fees, ApyApp’s determination will be final and binding.

4. Termination

4.1. Termination

Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.

Fraudulent or other unacceptable behaviour by Partner, including breach of the Acceptable Use Policy, as determined by ApyApp in its sole discretion, may result in one or more of the following actions being taken by ApyApp: (a) termination of Partner’s affiliation with Merchants within the Partner Account; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Account entirely without notice to, or recourse for, Partner.

ApyApp reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, ApyApp will provide reasonable notice by email, posting a notice on the ApyApp blog or in the Partner Dashboard.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party will return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all ApyApp Creative and all Confidential Information (as defined below)); (b) Partner will immediately cease displaying any ApyApp Creative or any ApyApp Trademarks on any Website or otherwise; and (c) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, ApyApp API, or to receive any payments of Fees under this Agreement, unless otherwise determined by ApyApp in its sole discretion.

This Section 4.2 and the following Sections will survive any termination or expiration of this Agreement:

PART A: Section 1 (Definitions), Section 5.4 (Proprietary Rights of ApyApp), Section 6 (Confidentiality), Section 7 (Disclaimer of Warranty), Section 8 (Limitation of Liability and Indemnification), and Section 9 (General Provisions)

PART B: Section 6 (Relationship between VAP and Merchant);

PART C.2: Section 4 (Reporting and Audit); and

PART D: Section 3.3 (Relationship), Section 3.5 (Taxes), Section 3.6 (Audits).

In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.

5. Intellectual Property Rights

5.1. ApyApp Creative

All ApyApp Creative will be solely created and provided by ApyApp unless otherwise agreed to by ApyApp in writing in advance. ApyApp will provide Partner with copies of or access to ApyApp Creative. The ApyApp Creative may also be accessible from the Partner Program website and the ApyApp brand guidelines (“ApyApp Trademark Usage Guidelines”). By using the ApyApp Creative, you indicate your acceptance of our ApyApp Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license or permission to use the ApyApp Creative. The ApyApp Creative is provided “as is” and without warranty of any kind.

Partner may display ApyApp Creative on the Websites solely for the purpose of marketing and promoting the Service and any ApyApp brands permitted by ApyApp and by ApyApp Related Entities during the term of this Agreement, or until such time as ApyApp may, upon reasonable prior notice, instruct Partner to cease displaying the ApyApp Creative. Partner may not alter, amend, adapt or translate the ApyApp Creative without ApyApp’s prior written consent. Nothing contained in any ApyApp Creative will in any way be deemed a representation or warranty of ApyApp or of any of ApyApp Related Entity. The ApyApp Creative will at all times be the sole and exclusive property of ApyApp and no rights of ownership will at any time vest with Partner even in such instances where Partner has been authorized by ApyApp to make changes or modifications to the ApyApp Creative.

5.2. ApyApp Trademarks

During the term of this Agreement, ApyApp hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the ApyApp Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use ApyApp’s Trademarks only as permitted under this Agreement; (b) it will use the ApyApp Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by ApyApp in writing from time to time, including but not limited to the ApyApp Trademark Usage Guidelines; (c) the ApyApp Trademarks are and will remain the sole property of ApyApp; (d) nothing in this Agreement will confer in Partner any right of ownership in the ApyApp Trademarks and all use thereof by Partner will inure to the benefit of ApyApp; (e) Partner will not, now or in the future, apply for or contest the validity of any ApyApp Trademarks; and (f) Partner will not, now or in the future, apply for or use any term or mark confusingly similar to any ApyApp Trademarks.

5.3. Restrictions on Partner’s Use of the ApyApp Trademarks

Notwithstanding Section 5.2, Partners will not:

use the ApyApp Trademarks or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services (including without limitation, in the name or design of any Application or Theme), unless granted express written permission by ApyApp in advance of each use; or

purchase or register search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses or domain names that use the ApyApp Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the ApyApp Trademarks.

5.4. Proprietary Rights of ApyApp

As between Partner and ApyApp, the ApyApp Creative, ApyApp Trademarks, all demographic and other information relating to Merchants including Referred Merchants, prospective Partners and Partners, the Services, the ApyApp API, Merchant Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of ApyApp or ApyApp Related Entities or otherwise related to the Service, ApyApp Partner Program, ApyApp or ApyApp Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “ApyApp Property”) will be and remain the sole and exclusive property of ApyApp. To the extent, if any, that ownership of any ApyApp Property does not automatically vest in ApyApp by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to ApyApp, upon the creation thereof, all rights, title and interest Partner may have in and to such ApyApp Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

6. Confidentiality

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between ApyApp and Partner, Merchant Data and Customer Data is the Confidential Information of ApyApp.

Each Party agrees to use the other Party’s/ies’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 6. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

7. Disclaimer of warranty

The ApyApp Partner Program, the Service, the ApyApp Trademarks, the ApyApp Creative, Ads (including delivery and related reporting) and the ApyApp API (including without limitation the Sales Channel SDK and the ApyApp Billing API) are provided “as-is”. ApyApp makes no warranties under this Agreement, and ApyApp expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, ApyApp further disclaims all representations and warranties, express or implied, that the Service, the ApyApp API, the ApyApp Trademarks, the ApyApp Creative, or the ApyApp API (including without limitation the Sales Channel SDK and the ApyApp Billing API) satisfy all of Partner’s or Merchant’s requirements and or will be uninterrupted, error-free or free from harmful components.

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

ApyApp, and the ApyApp Related Entities, will have no liability with respect to the ApyApp Partner Program, the Service, the ApyApp API, the ApyApp Trademarks, the ApyApp Creative or ApyApp’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the ApyApp API, the ApyApp Trademarks, the ApyApp Creative, or Partner’s participation or inability to participate in the ApyApp Partner Program, even if ApyApp has been advised of the possibility of such damages. In any event, ApyApp’s, and the ApyApp Related Entities’, liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by ApyApp during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and a Partner is strictly between the Merchant and the Partner, and neither ApyApp or the ApyApp Related Entities are obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances will ApyApp, or the ApyApp Related Entities, be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Merchant. These limitations will apply even if ApyApp or the ApyApp Related Entities have been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless ApyApp and any ApyApp Related Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to ApyApp and ApyApp Related Entities granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s use of the ApyApp API, (including without limitation the Sales Channel SDK and ApyApp Billing API); (e) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant Agreement; (f) any third party claim that Partner’s products or services, including without limitation any Application, Theme, or Channel Platform infringes the intellectual property or other rights of a third party; [(g) Partner Taxes, including any audits or penalties related thereto, ][This Section 8.2(g) to be effective as of April 3, 2020.] (h) the performance, non-performance or improper performance of the Partner’s products or services, including without limitation, any Application or Theme or Channel Platform; and (i) Partner’s relationship with any Merchant.

8.3. Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 3.2.4, 5 or 6 above, in addition to all other rights and remedies available to ApyApp under this Agreement and under applicable law, ApyApp will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s access to the Partner Program, (c) receive a prompt refund of all amounts paid to Partner under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by ApyApp in connection with such violation, in accordance with the provisions of this Section 8.

9. General provisions

9.1. Force Majeure

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Except with respect to the collection and transfer of payments, credits or refunds between Merchants and Partner, or as otherwise expressly stated in this Agreement, neither ApyApp or any ApyApp Related Entity is an agent, representative or related entity of the Partner. Neither ApyApp nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party, except where the Partner expressly authorizes ApyApp to act on its behalf in this Agreement. For the avoidance of doubt, Partner expressly authorizes ApyApp to act on its behalf for the purposes of collecting and remitting payment, credits or refunds between Merchant and Partner. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

9.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to legal@ApyApp.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice will be sent to the Partner at the address provided in the Partner Account, and to ApyApp at 150 Elgin Street, Suite 800, Ottawa, Ontario, Canada K2P 1L4, Attention: Legal Department.

9.5. No Waiver

The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.

9.6. Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither ApyApp nor the Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

9.7. Assignment

All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. ApyApp will be permitted to assign this agreement without notice to or consent from Partner. Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without ApyApp’s prior written consent, to be given or withheld in ApyApp’s sole discretion.

9.8. Applicable Laws

This Agreement will be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with this Agreement.

9.9. Patent Non-Assertion

Partner and its affiliates covenant not to assert patent infringement claims against ApyApp, ApyApp Related Entities, or ApyApp products and services including the ApyApp API.

9.10. Competitive or Similar Materials

ApyApp is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, including without limitation any Application or Theme, regardless of their similarity to Partner’s products or services, provided that ApyApp does not use Partner’s Confidential Information in so doing.

9.11. Feedback

If Partner provides any feedback (including identifying potential errors and improvements) to ApyApp concerning the Partner Program, the ApyApp API, the ApyApp Creative or any aspects of the Service (“Feedback”), Partner hereby assigns to ApyApp all right, title, and interest in and to the Feedback, and ApyApp is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, ApyApp API, the ApyApp Creative or the Service and to create other products and services. ApyApp will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.

9.12. Beta Services

From time to time, ApyApp may, in its sole discretion, invite Partner to use, on a trial basis, potential new services or features that are in development and not yet available to all Partners or Merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which ApyApp will provide to Partner prior to Partner’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of ApyApp and subject to the confidentiality provisions of this Agreement. ApyApp makes no representations or warranties that the Beta Services will function. ApyApp may discontinue the Beta Services at any time in its sole discretion. ApyApp will have no liability for any harm or damage arising out of or in connection with a Beta Service.

9.13. Service Providers

Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that Partner is responsible for all of its service providers’ acts or omissions in relation to Partner’s performance of the Agreement, and any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.

9.14. Industry Standards

Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Partner System”) must be properly configured to Internet industry standards so as to securely operate Partner’s Website, Applications and Themes, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency and disconnect immediately any known or suspected intrusions or intruder.

In addition, if Partner has access to Merchant Data, Partner: (i) will only use or store such information for the purpose of providing the Partner’s services to the Merchant to whom the Merchant Data relates, and will not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) will not communicate with Customers directly or indirectly, provided however that Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) will only store such information for as long as reasonably necessary to provide the Partner’s services to the Merchant to whom the Merchant Data relates; (iv) will use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) will comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) will notify ApyApp of any actual or suspected breach or compromise of Merchant Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (A) promptly remedy the Data Breach to prevent any further loss of Merchant Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to ApyApp, the ApyApp Related Entities, Merchants or Customers; and (D) regularly communicate the progress of its investigation to ApyApp and cooperate to provide ApyApp with any additional requested information in a timely manner.

9.15. Severability

If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.

9.16. A Description of ApyApp Entities

In all respects, ApyApp Pty Ltd. will perform this Agreement on its own behalf. The liability of each ApyApp Entity will be several for the purposes of this Agreement.

ApyApp Pty Ltd. is a corporation formed under the laws of Australia, with offices located at Level 3, Suite 305, 66 Hunter st, Sydney NSW 2000 Australia.

This document was last updated on 18 September 2020.