APPSPACE RESELLER AGREEMENT

1. GRANT.

• General.  Appspace grants to Reseller, including its Affiliates, the non-exclusive, non-transferable right to resell, promote, provide, install, distribute and otherwise market, maintain and support the Products (which, for the purposes of this Agreement, includes Third Party Products (as defined below), in a cloud-based or downloadable fashion, as applicable, and the Support and Maintenance Services, to End User Customers for the benefit of Appspace in accordance with this Agreement. “End User Customer” means, whether acquired through Reseller or directly through Appspace, any end-user person authorized to use Products or receive Support and Maintenance Services or Professional Services pursuant to this Agreement and other applicable Appspace agreements (including the End User Agreement and the Professional Services Agreement), and includes Reseller, if Reseller uses any Products, Support and Maintenance Services or Professional Services. “Affiliate” means any person that controls, is controlled by, or is under common control with, a Party, where “control” means ownership of more than 50% of the outstanding shares of a person, or the ability to direct the management of a person. Appspace may use its Affiliates provide Products or Support and Maintenance Services under this Agreement.
• Reservation. At Appspace’s reasonable request, Reseller will offer Support and Maintenance Services through Reseller’s authorized personnel to End User Customers who have obtained the Products directly from Appspace or an Affiliate.

2. RESELLER’S OBLIGATIONS.

• End User Agreement.  Reseller must ensure that each End User Customer accepts and agrees to Appspace’s then-current End User Agreement (located at: https://www.appspace.com/legal/user-agreement/) either through (i) Appspace’s click wrap agreement; (ii) facilitating direct negotiations between Appspace and the End User so that a separate agreement can be signed between Appspace and the End User; or (iii) on a legally enforceable pass-through basis. Reseller must provide evidence of such acceptance and agreement to the End User Agreement by any End User Customer to Appspace upon request. If Reseller accepts and/or agrees to the End User Agreement via a click wrap on behalf of an End User Customer, Reseller will be considered to be in material breach of this Agreement. Reseller may not modify or amend the End User Agreement without Appspace’s prior written approval. The English version of the End User Agreement will apply and control in all instances. In the event Reseller becomes aware that the applicable law in a territory renders or may render any provision of the End User Agreement to be invalid or unenforceable, Reseller agrees to timely notify Appspace and will reasonably assist Appspace, at Appspace’s direction and cost, in providing an updated, valid and enforceable agreement to Reseller’s End User Customers. If there is a conflict between the language of the End User Agreement and this Agreement, as between Appspace and Reseller, this Agreement will control
• Provision of Services. Reseller shall, in good faith and at its own expense, (i) market, advertise, promote, and resell the Products to End User Customers consistent with good business practice, using its commercially reasonable efforts to maximize the sales volume of the Products, (ii) have sufficient knowledge of the industry and products competitive with each Product (including specifications, features and benefits) so as to be able to explain in detail to the End User Customers (A) the differences between a Product and competing products; and (B) information on standard protocols and features of each Product, (iii) observe all reasonable directions and instructions given to it by Appspace in relation to the marketing, advertisement, and promotion of the Products to the extent that these marketing materials, advertisements, or promotions refer to the Products or otherwise use any Marks (as defined below), (iv) market, advertise, promote and resell Products and conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill, and reputation of Appspace, (v) promptly notify Appspace of and address and investigate any complaint or adverse claim about any Product or its use of which Reseller becomes aware. If Reseller has been trained to provide Support and Maintenance Services and Appspace approves Reseller’s provision of such services, then Reseller may provide Support and Maintenance Services directly to the End User Customer. Otherwise, Reseller shall refer any requests for Support and Maintenance Services to Appspace. Reseller will notify Appspace in advance and obtain Appspace’s approval before Reseller provides any End User Customer with any Support and Maintenance Services.  Reseller will promptly notify Appspace if an End User Customer requests that Appspace personnel directly provide any Support and Maintenance Services or Professional Services. With respect to Professional Services, Reseller will inform its End User Customers to execute the current Appspace Professional Services Agreement (located at https://www.appspace.com/legal/services-agreement) before Appspace will provide such services. 
• Sales Forecasts.  Reseller agrees to communicate regularly with Appspace, and in good faith work with Appspace to provide sales reports and forecast updates and any other information that might be pertinent to this Agreement or is requested by Appspace.
• Enforcement.  Reseller will use commercially reasonable efforts to enforce against all End User Customers and other third persons the provisions of any agreement that has been executed by or assigned to Reseller that affects Appspace’s proprietary, confidentiality or other rights in the Products.  If Reseller learns that any End User Customer has breached any such provision, Reseller will immediately notify Appspace.
• Third Party Vendor Products. From time to time, Appspace enters into agreements with various third parties permitting Appspace and its resellers to resell, promote, provide, install, distribute or otherwise market, maintain or support such third party’s products and services (the “Third Party Products”). These agreements may obligate Appspace to cause its resellers (including Reseller) to act in accordance with certain terms and conditions. Notwithstanding anything herein to the contrary, including Section 21, (i) Appspace shall notify Reseller of the applicable terms and conditions with respect to Third Party Product, if any, and (ii) upon receipt of such notification, Reseller shall act in accordance with the applicable terms and conditions with respect to such Third Party Product.

3. APPSPACE’S OBLIGATIONS.  

• Marketing. Appspace may periodically provide Reseller, at no additional charge, with promotional and technical materials to assist Reseller in providing Support and Maintenance Services for the Products.  
• Maintenance and Support.  Appspace will provide support to diagnose and resolve problems that End User Customers may encounter in using the Products.  Appspace will provide such support in accordance with the Appspace Service Level Agreement (located at https://www.appspace.com/legal/sla/). 

4. ORDERS AND DELIVERY.

• Order Placement and Acceptance.  Unless a distributor is involved, Reseller will place Orders for the Products, Support and Maintenance Services or Professional Services directly with Appspace.  All Orders must be in writing and in substantially the same form as Appspace’s standard order form.  Each Order will specify, at minimum: (i) the identity and location of the End User Customer,; (ii) the Term (if applicable), and the type and quantity of Product(s), Support and Maintenance Services or Professional Services ordered, including whether for cloud-based or downloadable Products and whether on-premises or not; and (iii) the configuration of the proposed installation, if applicable.  Reseller will provide the information listed above for every End User Customer.  All information provided by Reseller must be accurate and complete and must reflect legitimate orders received by Reseller from End User Customers.  All Appspace Orders automatically renew unless the Reseller or the End User Customer provides Appspace with at least sixty (60) days’ prior notice of its intent not to renew an Order. Any terms or conditions in Reseller’s Order that are in addition to, or different from, the terms and conditions set forth in this Agreement are null and void and will have no effect. Appspace will specify any discounts (“Discounts”), if applicable, in the Orders. Appspace may accept or reject any Order at its discretion. Upon receipt of a valid Order and acceptance by Appspace, Appspace will promptly invoice Reseller for any Products, Support and Maintenance Services and Professional Services ordered. All Orders for Subscription Services or other Products subject to renewal must be received by Appspace at least ten (10) business days prior to the beginning of the renewal Term for each End User Customer, or Appspace may invoice Reseller on or after the anniversary of the Invoice Date (defined below in Section 5(b)).
• Access to Products.  Appspace will provide the End User Customers with access to the licensed on-premises Products or to the cloud-based Products within seven (7) business days after Appspace’s receipt and acceptance of a valid Order, provided (1) Reseller has submitted in writing all required End User Customer information, and (2) if applicable, End User Customer has the proper equipment required for use of the Products. This delivery time frame is subject to delays beyond Appspace’s control. For licensed on-premises Products, Appspace will generate a license key, provide instructions and make the Products available to the End User Customer via the Internet or by similar means. For cloud-based Products, the End User Customer will gain access to the Products via its Appspace account.

5. PRICES AND PAYMENT.

General Payment Terms.  

• Other than as expressly set forth in this Agreement or in the End User Agreement, all payments for Orders are non-refundable, non-cancelable and non-creditable. In making payments, Reseller acknowledges that it is not relying on future availability of any Products beyond the current Term or any Product upgrades or feature enhancements. If Reseller, for itself or for its End User Customer, adds additional orders for Products or Support and Maintenance Services during the Term, Appspace will charge Reseller for the additional Products or Support and Maintenance Services pursuant to the then-current applicable rates in a new invoice. If Reseller pays by credit card, it agrees that Appspace may bill Reseller’s credit card for renewals, additional users, and unpaid fees, as applicable. Appspace may, at any time, provide Reseller’s End User Customers with any publicly available pricing or other information without liability to Reseller.  Reseller is responsible for all credit risks regarding, and for collecting payment for, all products (including Products) sold to third parties (including End User Customers), whether or not Reseller has made full payment to Appspace for the Products. The inability of Reseller to collect the purchase price for any Product does not affect Reseller’s obligation to pay Appspace for any Product.
• Reseller will pay all amounts due to Appspace in accordance with the terms of the Appspace invoice (where the date on the Appspace invoice is defined as the “Invoice Date”). In addition to any other remedies that Appspace may have at law or equity, any late payments of undisputed amounts will be subject to a service charge equal to 1.5% per month of the amount due, or if this is not legally permitted, then the maximum amount allowed by law. 
• If payment is not made to Appspace within ninety (90) days of the Invoice Date, whether Reseller has been paid by the End User Customer or not, then notwithstanding any language to the contrary in this Agreement or any other agreement which Reseller may have with its End User Customers or Appspace, Appspace will have the right to suspend, terminate or permanently disable all Products, or other Appspace programs or software and to discontinue any Support and Maintenance Services or Professional Services with no liability to Reseller or to Reseller’s End User Customer. Further, if Reseller has received an invoice from Appspace, but has not paid and the End User Customer has not downloaded or used any Products or Support and Maintenance Services within ninety (90) days of the Invoice Date, then Appspace will have the right to void the Order and re-price any Products, Support and Maintenance Services, Professional Services or other items on the Order with no liability to Reseller or its End User Customer.
• Overages and General Terms.  All overages, such as for storage space or bandwidth, will be billed the month after the overage was incurred. 
• Taxes.  Reseller will be responsible for all related bank charges, taxes, withholdings, duties and levies in connection with the Products, Professional Services, or Support and Maintenance Services charges (excluding taxes based on the net income of Appspace). Reseller’s payments under this Agreement exclude any taxes or duties payable in respect of the Products, Support and Maintenance Services and Professional Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Appspace, Reseller must pay to Appspace the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, Reseller may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, Reseller may provide to Appspace any such exemption information, and Appspace will use reasonable efforts to provide such invoicing documents as may enable Reseller to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
• Price Changes.  Appspace may change its pricing, including, but not limited to, those related to maintenance fees, upgrade fees and new version fees, in whole or in part, at any time upon thirty (30) days’ prior notice to Reseller.  In the event of any Appspace price increases, Appspace will honor the pricing contained in any valid, unexpired Orders being processed or pending.

6. WARRANTIES; DISCLAIMER OF WARRANTIES.

• Warranties.  Each party represents and warrants that it has validly entered into this Agreement and that it has the legal authority to do so. Reseller represents and warrants that it is authorized to sell or resell within any territory in which it sells or resells Products, Support and Maintenance Services or Professional Services. Reseller represents and warrants that its execution, delivery, and performance under this Agreement does not violate or conflict with any other agreement to which Reseller is, or becomes, a party or by which it is bound, and Reseller shall not enter into or subject itself to the terms of any such agreement as long as this Agreement is in effect.

• Disclaimer.  For the avoidance of doubt, all commitments, indemnities, and other terms and conditions offered by Appspace to the End User Customer in the End User Agreement do not extend to you as a Reseller (except to the extent Reseller is an End User Customer, or unless specifically set forth in this Agreement). APPSPACE MAKES NO WARRANTIES TO RESELLER (OTHER THAN AS SPECIFICALLY SET FORTH IN SECTION 6(a) ABOVE), AND DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT ALLOWED BY LAW, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT).  RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY APPSPACE, OR ANY OTHER PERSON ON ITS BEHALF, EXCEPT AS SPECIFICALLY DESCRIBED IN SECTION 6(a) OF THIS AGREEMENT.

7. INDEMNITY.

• IP Indemnity by Appspace.  Appspace agrees to indemnify, defend, and hold harmless Reseller and its Affiliates, directors, officers, managers, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers  (collectively, “Losses”), incurred by any of them arising out of any third-party claim alleging that the Products infringe on the intellectual property rights of such third party; provided, however, that Appspace will have no indemnity obligation to Reseller if the claim results from (i) Reseller’s marketing, advertising, promotion, or sale of a product purchased under this Agreement (including any Product) in any manner not otherwise authorized under this Agreement; (ii) a correction, alteration or modification of the Products that is not provided or performed by Appspace, (iii) the failure to promptly install an upgrade that would have eliminated the actual or alleged infringement, or (iv) the combination of the Products with other items not provided by Appspace, but only if the claim would not have arisen from use of the Products alone. Appspace’s sole obligations and Reseller’s sole rights with respect to indemnity are set forth in this Section 7(a).
• Indemnity by Reseller.  Reseller will indemnify, defend and hold harmless Appspace and its Affiliates, directors, officers, managers, employees, agents, successors and permitted assigns from and against all Losses, incurred by any of them arising out of any third-party claim relating to (i) any breach of this Agreement by Reseller or its employees or agents; (ii) any modification or amendment of the prescribed terms of the End User Agreement or any other agreement provided to an End User Customer that Appspace did not specifically approve in writing; (iii) any warranty, condition, representation, indemnity or guarantee granted by Reseller to any End User or any breach of the foregoing; (iv) any omission or inaccuracy in Reseller’s advertisements and promotional materials that relate to the Products, which were not provided or approved in advance by Appspace; (v) any modification of or addition to the Products not provided or approved by Appspace; or (vi) Reseller’s acceptance of Appspace’s click wrap to the required End User Agreement, or other contractual obligation, on behalf of any End User Customer.  This Section 7(b) will not be construed to limit or exclude any other claims or remedies which Appspace may assert under this Agreement by law or in equity. 
• Obligations of the Non-Indemnifying Party.  The non-indemnifying party will give the indemnifying party prompt written notice of all claims or other triggering events so that the indemnifying party’s ability to defend or settle on favorable terms is not compromised. The indemnifying party may assume sole control of the defense of any claims. The non-indemnifying party will provide reasonable assistance with the defense of such claims at the indemnifying party’s expense.  The non-indemnifying party, at its own expense, will have the right to participate in the defense of any claims through the non-indemnifying party’s own counsel. In the event the indemnifying party fails, after notice, to assume control of the defense of such claims, the non-indemnifying party will then have the right to prosecute and defend such action(s) and to collect such costs and expenses (including reasonable attorney’s fees) from the indemnifying party. 

8. LIMITATION OF LIABILITY.

• Incidental and Consequential Damages.  TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, BUSINESS INTERRUPTION, FAILURE OF SECURITY MECHANISMS, INCURRED BY RESELLER OR A THIRD PARTY, EVEN IF SUCH PARTY KNEW, SHOULD HAVE KNOWN OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• Aggregate Damages.  TO THE FULLEST EXTENT ALLOWED BY LAW, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY THEM FROM RESELLER IN THE 12-MONTH PERIOD PRECEDING THE CLAIM.
• Exclusions.  THE LIMITATIONS CONTAINED IN SECTIONS 8(a) AND 8 (b) ABOVE SHALL NOT APPLY TO ANY DAMAGES ARISING OUT OF EITHER PARTY’S (I) INDEMNIFICATION OBLIGATIONS HEREUNDER; (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (III) MISAPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; OR (IV) ANY OTHER DAMAGES THAT CANNOT BE LIMITED BY APPLICABLE LAW. 

9. CONFIDENTIALITY. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, customer, trade secret, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or if it is of such a nature that it would be considered as confidential by a reasonable person. Any Appspace Intellectual Property (as defined below) and any performance information relating to the Products shall be deemed Confidential Information of Appspace without any marking or further designation. Except as expressly authorized in this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice, if and as permitted by law, to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy; and therefore, that upon any such disclosure or threatened disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief (without posting a bond or other security), in addition to whatever other remedies the Disclosing Party might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.  The obligations set forth in this Section 9 will terminate three (3) years after the Termination Date (as defined below).

10. APPSPACE INTELLECTUAL PROPERTY.

• Ownership.  All patents, copyrights, trade secrets, trademarks, service marks, trade names, logos or other words or symbols identifying the Products, the Support and Maintenance Services, the Professional Services, or Appspace’s business, and other proprietary rights in or related to the Products, the Support and Maintenance Services, or the Professional Services (the “Appspace Intellectual Property”), including as may incorporate any Feedback (as defined below), are and will remain the exclusive property of Appspace, whether or not specifically recognized or perfected.  Unless otherwise agreed in writing, all Appspace trademarks, service marks, trade names, logos, company name or other words or symbols identifying the Products, the Support and Maintenance Services, the Professional Services, or Appspace’s business are defined as the “Marks.” Reseller will not acquire any right in the Appspace Intellectual Property, except the limited use rights specified in Section 10(b).  Further, unless otherwise agreed in writing, Appspace will own all rights in any copy, translation, modification, adaptation or derivation of the Products, the Support and Maintenance Services, or the Professional Services, promotional literature or other items of information, including any improvement or development thereof. Nothing in this Agreement will be construed to convey any title or ownership rights in the Products or the Appspace Intellectual Property to Reseller, its End User Customers or any other party. Reseller will not register, directly or indirectly, any Marks or other proprietary or commercial right that is identical or confusingly similar to the Marks or that constitutes translations of the Marks into the language(s) spoken within a territory.  
• Use of Appspace Intellectual Property and the Marks.  Reseller will use the Products and Appspace Intellectual Property solely to perform its marketing and service activities pursuant to this Agreement.  Reseller will not reverse engineer, decompile, disassemble or apply any process, technique or procedure or make any attempt to ascertain or derive the source code to the Products.  The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature. Reseller will use the Marks exclusively to advertise and promote the Products.  All advertisements and promotional materials will (i) clearly identify Appspace as the owner of the Marks, (ii) conform to Appspace’s then-current trademark and logo guidelines, and (iii) otherwise comply with any local notice or marking requirement contemplated.  Before publishing or disseminating any advertisement or promotional materials that have not been provided by Appspace and contain a Mark, Reseller will deliver a sample of the proposed material to Appspace for prior approval.  If Appspace notifies Reseller that the use of the Mark is inappropriate, then Reseller will not publish or otherwise disseminate the advertisement or promotional materials until modified to Appspace’s satisfaction.  All goodwill arising from Reseller’s use of the Marks will inure to the benefit of Appspace.
• Proprietary Notices.  Reseller will ensure that all copies of the Products will incorporate copyright and other proprietary notices in the same manner that Appspace incorporates such notices in the Products or in any manner reasonably requested by Appspace.  Reseller will not remove, or allow the removal of, any copyright or other proprietary notices incorporated or placed on or in the Products by Appspace. 
• Infringement.  Reseller will immediately notify Appspace if Reseller learns (i) of any potential infringement of the Appspace Intellectual Property by a third party or (ii) that the use of any Appspace Intellectual Property may infringe the proprietary rights of a third party.  
• Feedback.  If Reseller provides any feedback, comments, suggestions, ideas, description of processes, or other information to Appspace about or in connection with the Products or Appspace’s reseller program, including, without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then Reseller hereby grants to Appspace and its Affiliates a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to Reseller or any of its Affiliates or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Agreement (including without limitation Section 9) limits Appspace’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise. Appspace acknowledges that Feedback is provided “as is” without any warranties of any kind, whether express or implied.

11. TERM AND TERMINATION.

• Term.  Subject to Section 14, the terms and conditions of this Agreement will remain in force as long as there is an Order in place and you or your End User Customers continue using the Products, Support and Maintenance Services or Professional Services or until this Agreement has been terminated in accordance with its terms. “Termination Date” is defined as the date on which this Agreement terminates at the end of a required notice period, if any.
• Termination by Appspace.  Appspace may terminate this Agreement, without liability to Reseller, if (i) Reseller or any of its employees breach this Agreement and fail to cure such breach (if capable of cure) to Appspace’s reasonable satisfaction within thirty (30) days after Appspace delivers written demand for such cure, (ii) Reseller ceases to conduct business in the normal course, is declared insolvent, undergoes any procedure for the suspension of payment, makes a general assignment for the benefit of creditors or a petition for bankruptcy, reorganization, dissolution or liquidation is filed by or against it, or (iii) Reseller sells or otherwise assigns or disposes all or substantially all of its assets or the direct or indirect ownership or control of Reseller that exists upon the initial Order changes in a manner that (in Appspace’s sole, reasonable judgment) may adversely affect Appspace’s rights. Notwithstanding the foregoing, any breach related to late payment or non-payment by Reseller must be cured within ten (10) days after Appspace delivers written demand for payment, which may be in the form of an email or otherwise in writing to Reseller’s standard accounting contact or its department responsible for vendor payments.  No additional notice from Appspace is required for late payment or non-payment. If, in Appspace’s sole reasonable judgment, a breach is not capable of cure, then Appspace may terminate this Agreement immediately upon notice to Reseller.
• Termination by Reseller.  Reseller may terminate this Agreement, without liability to Appspace, if (i) Appspace or any of its employees breach this Agreement and fail to cure such breach (if capable of cure) to Reseller’s reasonable satisfaction within thirty (30) days after Reseller delivers written demand for such cure, or (ii) Appspace ceases to conduct business in the normal course, is declared insolvent, undergoes any procedure for the suspension of payment, makes a general assignment for the benefit of creditors or a petition for bankruptcy, reorganization, dissolution or liquidation is filed by or against it.  
• Termination for Convenience.  Either party may terminate this Agreement for convenience, at any time, without liability to the other party, by giving the other party at least ninety (90) days’ prior written notice of termination. In the event of a termination for convenience by Reseller, Appspace will not provide a refund for any prior payments, except as otherwise may be set forth in the End User Agreement.  For any termination for convenience by Reseller where a multi-year License Term is pending, if the End User Customer also terminates the applicable End User Agreement, then Reseller will remain responsible for all unpaid, future payments owed for the remainder of the multi-year License Term (“Early Termination Fee”).  The parties agree that the Early Termination Fee is a material inducement for Appspace to provide the Discounts to Reseller, and that without the Early Termination Fee, the Discounts would not have been offered. The parties agree that the Early Termination Fee is not a penalty, and that this Early Termination Fee represents a fair estimate of Appspace’s liquidated damages based on the costs of servers, labor, network, facilities, infrastructure and other costs assumed by Appspace in reliance on the Reseller committing to the Term and for receiving the Discount as agreed by the parties.

12. OBLIGATIONS AND CONSEQUENCES OF TERMINATION. From the time one party gives notice of termination until the Termination Date (the “Lame Duck Period”), the parties agree to work in good faith to resolve any payment and End User Customer issues. When the Lame Duck Period commences, Reseller will promptly begin complying with the termination obligations specified below and cooperate with Appspace to terminate relations in an orderly manner. On the Termination Date, all rights granted to Reseller under this Agreement will immediately cease.

• Payments.  Reseller will pay Appspace or its designee all due and outstanding amounts, as well as any amount that has accrued but has not yet become due, the due date of which will be automatically accelerated to no later than the Termination Date of this Agreement and become immediately due and payable. During the Lame Duck Period, Appspace in its sole discretion may assign any pending or unfulfilled Orders to another Appspace reseller or fulfill it directly. 
• Products and Materials.  Reseller will purge from its computer systems, storage media and other files and, at Appspace’s option, destroy or deliver to Appspace or its designee, all Products and all items that contain any Confidential Information of Appspace or that bears a Mark, in each case, within Reseller’s possession or control, and will provide a certified confirmation document from a VP-level employee or above stating that such purging or destruction has been completed. 
• Agreements.  For any of Reseller’s End User Customers who wish to continue using the Products after the termination of this Agreement, within ten (10) business days after the date on a party’s notice of termination, Reseller agrees to notify all End User Customers and will assign, or perfect the assignment to Appspace (or Appspace’s desginee) of any End User Agreement, or other such Appspace-specific agreements related to Reseller’s End User Customers. Reseller will notify its End User Customers of such assignment and reasonably assist Appspace in perfecting any such assignments and will also inform its End User Customers that Appspace or Appspace’s designee will provide Products and Support and Maintenance Services as of the Termination Date. If, however, the termination is due to lack of payment and/or is made pursuant to Section 11(b) or 11(d), Appspace (in its sole discretion) may provide or have its designee provide Products and Support and Maintenance Services during the Lame Duck Period. If Reseller refuses or does not notify its End User Customers of a termination of this Agreement within ten (10) days from the date on the notice of termination, then Appspace may contact and inform Reseller’s End User Customers, with no liability to Appspace. 
• End User Customer Information.  Upon notice of intent to terminate by either party, Reseller will promptly deliver details of its current and prospective End User Customer records, including, but not limited to, contact information, contracts, invoices, billing procedures, and other relevant or related documents or information applicable to Reseller’s activities under this Agreement. Each End User Customer Order will continue until terminated, but Appspace will have no obligation to make any payments to Reseller after this Agreement is terminated as between Appspace and Reseller. For clarity, Appspace will not owe Reseller any Discounts or payments for any Orders received after the Termination Date, and all End User Customer payments after the Termination Date will be made directly to Appspace or its designee.

13. SURVIVAL. The provisions of Sections 2(c), 2(d), 5(b), 5(c), 5(d), and 6-25 (inclusive) will survive the expiration or termination of this Agreement.

14. COMPLIANCE WITH LAWS. 

• Local Compliance.  

1. 1. Appspace will, at its expense, obtain, renew, and maintain the governmental authorizations, licenses, registrations, and filings that may be required under any applicable laws to execute or perform this Agreement.
   2. Reseller will, at its expense, (i) obtain, renew, and maintain the governmental authorizations, licenses, registrations, and filings that may be required under any applicable laws to execute or perform this Agreement, and (ii) comply with all applicable laws, regulations, and other legal requirements that apply to this Agreement, including tax and foreign exchange legislation, and the exportation restrictions set forth in Section 15(c) below.  Reseller will reasonably notify Appspace of any change in these laws, regulations or other legal requirements that may affect the importation or exportation of the Products or Reseller’s performance of this Agreement.

• Unlawful Payments.  Reseller will not violate the Foreign Corrupt Practices Act or any anti-bribery laws or regulations or use any payment or other benefit derived from Appspace to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement or the use of the Products, while knowing or having reason to know that any portion of such money, gift or thing will, directly or indirectly, be given, offered or promised to (i) an employee, officer or other person acting in an official capacity for any government or its instrumentalities or (ii) any political party, party official or candidate for political office.
• U.S. Export Restrictions.  The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and Reseller agrees to comply with all applicable export and import laws and regulations in the resale and/or use of the Products. Reseller will not (and will not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Reseller represents and warrants that (i) it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Reseller’s data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.  
• Assurances.  Reseller will provide Appspace with the assurances and official documents that Appspace may periodically and reasonably request to verify Reseller’s compliance with this Section 15.

15. INDEPENDENT PARTIES. Reseller and Appspace are independent contractors.  Nothing in this Agreement will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party.  Except as otherwise provided in this Agreement, neither party will have the authority to bind the other party or to act on the other party’s behalf.

16. NONSOLICITATION. During the term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, neither party, without the prior written consent of the other, will directly or indirectly solicit for employment any person who was employed by the other party and directly involved in the performance of this Agreement.  This will not prohibit one party from hiring any employee of the other party who responds to (i) routine employment solicitation efforts, including, but not limited to, newspaper or internet advertisements, employment agency solicitations, or open house or job fair events, or (ii) widely distributed announcements of job openings.

17. FORCE MAJEURE. Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, transportation stoppages or slowdowns or the inability to procure parts or materials.  These causes will not excuse Reseller from paying accrued amounts due to Appspace through any available lawful means acceptable to Appspace.  If any of these causes continue to prevent or delay performance for more than ninety (90) days, Appspace may terminate this Agreement, effective immediately upon notice to Reseller.

18. NOTICES.

Any notice, approval or other communication required or permitted under this Agreement will be sent in writing by overnight courier (with confirmation) or certified mail, return receipt requested, to the address specified below or to any other address that may be designated by prior notice.  Any notice or other communication delivered by certified mail, or overnight courier (with confirmation) is deemed received as of the date on the confirmation document. If no confirmation document is available, then for mail sent by overnight courier, it will be deemed received as of the first business day after it is sent and for mail sent by certified mail, it will be deemed received on the third day after its date of posting. Notices may be sent to the attention of the Legal and Accounting department at the U.S. Appspace address listed in the first paragraph of this Agreement. For Reseller, notices may be sent to the address that Appspace has on file, unless Appspace is otherwise notified in writing pursuant to this Section 19.

19. ASSIGNMENT. Reseller may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights or obligations without Appspace’s prior, written approval; provided, however, that (1) Reseller may upon written notice to Appspace assign this Agreement without Appspace’s prior consent to another successor company pursuant to a corporate merger or reorganization or the sale or transfer of all or substantially all of its stocks or assets as long as such successor company agrees to accept, as is, all of the terms and conditions (including all of Reseller’s obligations and liabilities) of this Agreement; and (2) Reseller is required to assign its rights and obligations under this Agreement in accordance with Section 12(c). Appspace may assign this Agreement or any of its rights or obligations upon notice to Reseller, as long as the assignee agrees to accept and be bound by any applicable rights and obligations under this Agreement.  Reseller acknowledges that the provisions of this Agreement are intended to inure to the benefit of Appspace’s Affiliates and its or their licensors as third party beneficiaries of this Agreement, that such legal entities accept their third party beneficiary rights and that such rights will be deemed irrevocable.

20. WAIVER, AMENDMENT, MODIFICATION. Except as otherwise provided in this Agreement, any waiver, amendment or other modification of this Agreement will not be effective unless in writing and signed by the party against whom enforcement is sought. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation).  No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. 

21. SEVERABILITY.  If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the remaining enforceable portion of the provision or any other provisions of this Agreement, but the parties will endeavor in good faith to substitute for such an unenforceable provision a lawful provision that most closely approximates its purpose, unless Appspace deems the unenforceable provision to be essential to this Agreement, in which case, Appspace may terminate this Agreement, effective immediately upon notice to Reseller. 

22. INTERPRETATION. The terms that are defined in this Agreement may be used in the singular or the plural, as the context requires.  The term “day(s)” means calendar days, unless otherwise specified.  The term “person(s)” means an individual, partnership, company, corporation or other legal entity, as the context requires. Headings are intended only for reference purposes.  This Agreement will be interpreted and performed in the English language.

23. DISPUTE RESOLUTION; ARBITRATION.

• General. In the event of any controversy or claim arising out of or relating to this Agreement, the parties to this Agreement shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the Arbitration Association of America (“AAA”). The parties shall seek to mutually appoint a neutral and impartial arbitrator. If the parties cannot agree on a single, neutral and impartial arbitrator, then there shall be three (3) neutral and impartial arbitrators: one selected by each party, and a third selected in accordance with the AAA rules. Arbitration will take place in a mutually agreeable location, including remotely if so agreed between the parties. All negotiations and arbitration proceedings pursuant to this Section 24 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdiction. The language of the arbitration shall be English and the parties will bear their own costs for the arbitration.
• Special Relief.  Nothing in this Section 24 will prevent Appspace from seeking interim injunctive relief against Reseller or filing an action against Reseller to collect unpaid and past due amounts or for breach of Section 9 in any court of competent jurisdiction.

24. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Delaware, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 24 must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in New Castle County, Delaware, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction and venue of the courts in New Castle County, Delaware, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

25. ENTIRE AGREEMENT. Except to the extent Reseller is an End User Customer, in which case the End User Agreement shall apply between Appspace and Reseller, this Agreement constitutes the complete and entire statement of all terms, conditions and representations of the agreement between Appspace and Reseller with respect to its subject matter and supersedes all prior writings or understandings.