MARKETING DEVELOPMENT FUNDS TERMS AND CONDITIONS

These Marketing Development Funds Terms and Conditions (the “Terms and Conditions”) govern the allocation of marketing development funds by Provider to AppSmart, Inc. (“AppSmart”). AppSmart and Provider are referred to collectively as “Parties” and individually as “Party”. All capitalized terms not defined in these Terms and Conditions have the meaning assigned to them in the MDF Form.

  1. MDF Amount. Provider will pay to AppSmart the MDF Amount in accordance with the Payment Terms set out in the MDF Form. If the Parties elect “Net 30” Payment Terms: (i) Provider will pay all invoices submitted by AppSmart in connection with the execution of the AppSmart Services and (ii) the total amount invoiced by AppSmart to Provider shall not exceed the MDF Amount unless otherwise agreed by the Parties. MDF Amount paid by Provider to AppSmart is nun-refundable.
  2. Services. AppSmart will use commercially reasonable efforts to execute the AppSmart Services, and Provider will use commercially reasonable efforts to execute the Provider Services. The Parties hereby acknowledge and agree that, as with all marketing activities, it is not possible to guarantee that the performance of the AppSmart Services and Provider Services will be successful within a specified time frame or at all.
  3. Intellectual Property. The Parties acknowledge and agree that each Party retains ownership rights in and to its intellectual property, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works, moral rights and all other rights, whether presently existing or later developed by it.
  4. Confidential Information
    1. Confidential Information. “Confidential Information” means any information disclosed or otherwise made available previously or in the future by either Party (in such capacity, a “Disclosing Party”) to the other Party (in such capacity, a “Receiving Party”), either directly or indirectly, on or after the date hereof, in writing or orally, which is designated as “confidential”, “proprietary”, “competition-sensitive” or some similar designation or which, under the circumstances surrounding disclosure, including oral disclosure or disclosure by demonstration, would be understood to be confidential, proprietary or competition-sensitive by a reasonable person; provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information or as provided in this Agreement.
    2. Non-Use and Limited Disclosure. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.
  5. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL APPSMART BE LIABLE FOR ANY DAMAGES SUFFERED BY PROVIDER, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. THIS LIMITATION OF LIABILITY SHALL BE IN FULL FORCE REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF APPSMART HAD PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  6. Independent Contractors. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, association or employment relationship between the Parties, nor shall either Party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
  7. Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of California without regard to its conflicts of law principles. The Parties agree that the state and federal courts located in San Francisco, California shall have sole and exclusive jurisdiction and venue over any matter arising out of this Agreement and each Party hereby submits to the venue and jurisdiction of such courts. Each Party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.