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Welcome to our super-boring (but according to our lawyer, totally-important) Partner Terms. Please read them carefully!

AppSumo Team <3

Effective Date: January 9, 2025

Partner Terms

This set of Partner Terms (this “Agreement”) is entered into effective as of the Effective Date (as defined herein) between Sumo Group, Inc., a Delaware corporation (the “Company”), and the entity that is providing Product(s) (as defined herein) to Company for inclusion on the Marketplace (as defined herein), whether it be yourself or the business entity that you legally represent (“Partner”). Each Company and Partner may be referred to herein as a “Party” and collectively as the “Parties.”

By submitting a Product for inclusion on the Marketplace or executing a Promotion Agreement (as defined herein) incorporating this Agreement, Partner hereby agrees to be legally bound by this Agreement, applicable Promotion Agreements, and Company’s “Terms of Use,” as available at www.appsumo.com/terms-of-use, which incorporates Company’s “Privacy Policy,” as available at www.appsumo.com/privacy, the other agreements listed in Company’s Terms of Use, and AppSumo’s Partner Policies, including our Community Policy, as available at https://appsumo.com/partner-terms/community-policy, our Listing & Updates Policy, as available at https://appsumo.com/partner-terms/listing-policy, and our Payments Policy, as available at https://appsumo.com/partner-terms/payment-policy. In the event of a conflict among the terms of this Agreement and any of the foregoing agreements and policies, incorporated by reference hereunder, and unless otherwise agreed in writing by both Parties via an amendment hereto, the order of precedence shall be: (a) the Promotion Agreement, (b) this Agreement, (c) the Terms of Use, and (d) the foregoing policies.

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO BE BOUND BY THIS AGREEMENT, PARTNER AGREES TO RESOLVE ALL DISPUTES WITH COMPANY THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT PARTNER WAIVES ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT PARTNER WAIVES ITS RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.

Recitals

WHEREAS, Company owns and manages the Marketplace by providing Product(s) to AppSumo Customers (as defined herein);
WHEREAS, Partner develops, manufactures, licenses, and/or markets digital offerings, software as a service offerings, and/or other services that it desires to offer to AppSumo Customers through the Marketplace (the “Product(s)”); and
WHEREAS, Company desires to grant to Partner a limited license to offer the Product(s) to AppSumo Customers through the Marketplace pursuant to the terms and conditions contained herein.
NOW THEREFORE, in consideration of the promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

Agreement

1. Payment, Promotion Agreement, Security, and Liquidated Damages

a. Fees

Subject to the terms and conditions contained herein, Partner shall provide the Product(s) to be made available to AppSumo Customers on the Marketplace in exchange for a listed purchase price that AppSumo Customers shall pay to Company, and Company shall then remit to Partner a portion of the purchase prices paid by AppSumo Customers to Company (the “Fees”). “AppSumo Customer” means an entity or individual that accesses, uses, licenses, purchases, downloads, rents, and/or leases access rights to any Product through the Marketplace. The “Marketplace” means the platform through which Company allows Partner to list its Product(s) pursuant to the terms and conditions contained in this Agreement such that AppSumo Customers can purchase, lease, rent, and/or acquire a license to use Partner’s Product(s).

b. Payment; Promotion Agreement

Company shall pay the Fees to Partner in accordance with the applicable executed Promotion Agreement between Company and Partner. “Promotion Agreement” means the separately executed agreement between Company and Partner that Partner may execute in connection with the listing, marketing, and sale of Partner’s Product(s) as made available through the Marketplace. To the extent that any terms or conditions contained in a Promotion Agreement conflict with the terms and conditions of this Agreement, the applicable Promotion Agreement shall control.

c. Taxes

Company may be required to charge value-added-tax or sales tax on any Fees and remit such to the relevant tax authority. Company may also be required to report tax information to local tax authorities in certain countries. To comply with these reporting obligations, Partner agrees to provide Company with Partner’s taxpayer name, taxpayer-identification number, and any other reasonably requested information by Company, and ensure such information remains accurate by updating Partner’s account information. If Partner fails to provide any of the foregoing, and/or if any of the foregoing is inaccurate then: (i) Company’s payment of the Fees to Partner may be suspended; (ii) the listing of any Product(s) through the Marketplace may be suspended; and/or (iii) Company may immediately terminate this Agreement upon written notice of such termination to Partner.

d. Clawback

Subject to the terms and conditions contained herein, all amounts paid or payable to Partner by Company shall be subject to reduction, offset, and recovery from Partner (each, a “Clawback”) in the event Partner breaches this Agreement, and/or any other written agreement between the Parties. If Company reasonably determines that a Clawback is warranted, then Company shall provide Partner with written notice detailing the amount of the Fees subject to Clawback, the reasons for the Clawback, and any supporting documentation (the “Clawback Notice”). Partner agrees to pay to Company the amount identified in such Clawback Notice, along with all costs and expenses incurred by Company in connection with the event triggering such Clawback, within fourteen (14) days of receiving the Clawback Notice.

e. Limited Collection Agent

Partner hereby appoints Company as its agent for the limited purpose of receiving, holding, and settling payments for the Product(s) to Partner. Company shall in accordance with Sections 1(a)-(d) settle payments that are actually received by Company and provide to Partner the necessary Fees calculated therefrom, less any amounts owed to Company. Partner agrees that an AppSumo Customer’s payment received by Company, on behalf of Partner, satisfies such AppSumo Customer’s obligation to make payment to Partner, regardless of whether Company actually settles such payment to Partner. If Company does not settle any such payments as described herein to Partner, then Partner’s sole recourse to recover any Fees shall only be to bring a Dispute (as defined herein) against Company. Partner hereby expressly and irrevocably waives and abandons any and all claims to any amounts owed to Partner by an AppSumo Customer in exchange for the Product(s) as part of the bargain between Company and Partner.

f. Security Interest in Products and Intellectual Property Rights

i. Partner hereby grants to Company, as security for all of Partner’s obligations under this Agreement, including, without limitation, any Clawback due and payable to Company and any amounts outlined in Section 1(g) herein (collectively, the “Secured Obligations”), a security interest in and to the following, whether now owned, or hereafter acquired by Partner, and whether now or hereafter existing (the “Collateral”):

A. all copyrightable works embodied in the Products, and all Intellectual Property Rights, including all original works of authorship fixed in a tangible medium, published or unpublished, and any copyrights, and (subject in all respects to the terms and provisions of this Section 1(f)) all registrations thereof and applications therefor, including all renewals and extensions thereof, of Partner, including all copyright registrations and applications on file with the Register of Copyrights in the Library of Congress and, to the extent applicable, any similar office or agency of any state, territory or possession of the United States or any similar office or agency of any other countries or used by Partner in the United States, any state, territory or possession thereof or any other country (together, “Copyrights,” and any such filing offices or agencies, collectively, the “Copyright Filing Offices”);
B. any renewals or extensions of any copyright registration related to or otherwise arising out of the copyrightable works contained in or embodied by any Product(s);
C. all income, royalties, damages and payments now and hereafter due or payable with respect to the Copyrights (including payments received under any licenses entered into in connection with the Copyrights and damages and payments for past or future infringements of the Copyrights);
D. all right, title, and interest in all physical materials embodying works with respect to which Partner owns or holds rights in any Copyrights;
E. the right to sue for past, present, and future infringements of the Copyrights;
F. all rights corresponding to the Copyrights throughout the world;
G. any written agreement naming Partner as licensor or licensee, granting any right in or to any Copyright or copyright registration in the United States or any foreign country;
H. any and all present and future agreements, whether written or oral (including assignments and consents), as any such agreements may from time to time be amended or supplemented, pursuant to which Partner now has or hereafter acquires any direct or beneficial interest in any Copyright, or is a grantor of rights to any third-party with respect to any Copyright, whether as a party to any such agreement or as an assignee of any rights under any such agreement; and
I. all products and proceeds of the foregoing.

ii. In connection with the grant of the security interest set forth in clause (i) above, Partner represents and warrants to Company as follows:

A. none of the Copyrights are subject to any copyright application registration with any Copyright Filing Office;
B. Partner owns all Copyrights and has the legal and valid right to use, and to grant security interests with respect to, all of its Copyrights;
C. all Copyrights are free from any liens or encumbrances and are free of any restrictions which could reasonably be expected to have a material adverse effect on Partner;
D. Partner has not granted any license, release, covenant not to sue, or non-assertion assurance to any person with respect to any of the Copyrights;
E. no Copyright has been or is now involved in any proceeding challenging its validity; and none of the Copyrights are infringed or have been challenged or threatened in any way; and
F. no consent of any person and no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other person is required: (1) for the grant by Partner of the security interest granted hereby, for the pledge by Partner of the Collateral pursuant hereto, or for the execution, delivery or performance of this Agreement by Partner; (2) for the perfection or maintenance of the pledge and security interest created hereby (including the first and only priority nature of such pledge and security interest), except for the filing of financing and continuation statements under the Uniform Commercial Code, and the filing and recording of this Agreement in the United States Copyright Office against each United States copyright registration and application among the Copyrights that may, following the date hereof, be registered or subject to an application for registration; or (3) for the exercise by Company of its rights provided for in this Agreement or the remedies in respect of the Collateral pursuant to this Agreement.

iii. In connection with the grant of the security interest set forth in clause (i) above, Partner hereby covenants and agrees in favor of Company as follows:

A. Partner agrees that it will not register or file an application to register any Copyright with any Copyright Filing Office without, in each case, providing Company with not less than thirty (30) days prior written notice and in each such case, Partner agrees that it will execute and deliver to Company at least ten (10) days prior to filing any such application or registration, a copyright security agreement in form and content acceptable to Company in recordable form in each such Copyright Filing Office. In such event, Partner consents to the filing by Company, at Partner’s expense, of such copyright security agreements in each such Copyright Filing Office;
B. without in any way limiting Partner’s obligations set forth in Section 1(f)(iii)(A) herein, Partner agrees that from time to time, to promptly execute and deliver all further instruments and documents, and take all further action, that Company reasonably believes may be necessary or desirable, in order to perfect and protect any pledge or security interest granted or purported to be granted hereby or to enable the Company to exercise and enforce its rights and remedies hereunder with respect to any part of the Collateral;
C. Partner will furnish to Company from time-to-time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Company may reasonably request, all in reasonable detail;
D. Partner agrees that, should it obtain an ownership interest in any new Collateral, including any copyright registration or application, any such copyright registration or application will automatically become part of the Collateral;
E. Partner agrees to notify Company promptly and in writing if it learns: (1) that any material item of the Collateral has been determined to have become abandoned, or dedicated to the public; (2) of the institution of any proceeding regarding any material Copyright; or (3) of any adverse determination with respect to the validity or enforceability of any material Copyright;
F. In the event that Partner makes a determination that any material Copyright has been infringed or misappropriated by a third-party, Partner shall promptly notify Company and will take such actions to protect such Collateral, including suing for infringement and for an injunction against such infringement. Any expense in connection with such activities will be borne by Partner;
G. Partner shall take all steps to preserve and protect the Collateral; and
H. Partner shall not: (1) sell, assign (by operation of law or otherwise) or otherwise dispose of or grant any option with respect to any Collateral; or (2) create or suffer to exist any lien upon or with respect to any Collateral except for the pledge and security interest created by this Agreement.

iv. If Partner breaches or defaults with respect to any of its obligations under this Agreement, including, without limitation, the failure to pay any portion of the Secured Obligations as and when due, then fails to pay to Company, or if any of the representations or warranties set forth in this Agreement are untrue or misleading in any material respect, or if Partner files or becomes subject to any insolvency proceeding (each a “Default”), Company shall have all rights and remedies of a secured party under the Uniform Commercial Code and other applicable law and all the rights and remedies set forth in this Agreement. Partner waives notice of intent to accelerate, and of acceleration of, the Secured Obligations. After the occurrence and during the continuance of a Default, Company may enter any premises of Partner, with or without process of law, without force, to search for, take possession of, and remove the Collateral, or any part thereof. If Company requests after the occurrence and during the continuance of a Default, Partner shall assemble the Collateral and make it available to Company, at Partner’s expense, at a convenient place or places designated by Company. After the occurrence and during the continuance of a Default, Company may take possession of the Collateral or any part thereof on Partner’s premises and cause it to remain there at Partner’s expense, pending sale or other disposition. Any notice of a disposition shall be deemed reasonably and properly given if given to Partner at least ten (10) days before such disposition. If Partner fails to perform any of its obligations under this Agreement, Company may perform the same in any form or manner Company in its discretion deems necessary or desirable, and all monies paid by Company in connection therewith shall be additional Secured Obligations and shall be immediately due and payable without notice together with interest at the statutory rate. All of Company’s rights and remedies shall be cumulative.

g. Liquidated Damages

“Severe Breach Sections” means Sections 2(c), 2(d), 2(f), 2(i), 2(k), 3(a), 3(b), 12(d), 12 (h), 12(k), and 12(l) herein and further includes all sections of any Promotion Agreements executed by the Parties that are expressly identified therein as a Severe Breach Section with reference to this Section 1(g); provided that, the applicability and scope of the Severe Breach Sections set forth in this set of Partner Terms shall not be limited notwithstanding anything to the contrary. Upon the date that Company provides written notice that Partner breached the terms and conditions contained in any of the Severe Breach Sections (the “Severe Breach Date”), Partner will be liable to, and shall pay to Company within thirty (30) days, as liquidated damages and not as a penalty, an amount equal to one and five tenths (1.5) of the amount of total Fees paid or payable to Partner pursuant to this Agreement minus the multiple of twenty percent (20%) of such total Fees multiplied by the number of complete calendar years between the Effective Date of this Agreement and the Severe Breach Date (the “Standard Liquidated Damages”); provided, however, that such liquidated damages shall be increased by an amount equal to total Fees paid or payable by Company to Partner in the event Partner offers for sale a Substantially Similar Product (as defined herein) within twenty-four (24) months of the date of Company’s last sale of Partner’s Product(s) (the “Similarity Liquidated Damages”). By way of examples and not limitation, a Partner, who had received one hundred thousand dollars (100,000.00 USD) in total Fees, and breached any of the Severe Breach Sections after three (3) years of maintaining the Product on the Marketplace, would pay Standard Liquidated Damages to Company in the amount of ninety thousand dollars (90,000.00 USD). If such Partner were to offer for sale a Substantially Similar Product within twenty-four (24) months of the date of Company’s last sale of the Product, then Partner would pay to Company an additional one hundred thousand dollars (100,000.00 USD) in Similarity Liquidated Damages. Partner and Company acknowledge that the damages resulting from Partner’s breach of any of the Severe Breach Sections, and/or Partner’s sale of a Substantially Similar Product within twenty-four (24) months of the date of Company’s last sale of Partner’s Product(s), are impossible to calculate in advance with any specificity and that the Parties have agreed that the application of the formulas provided for herein provide a reasonable approximation of the substantial actual damages to be incurred by Company as a result of Partner’s breach of this Agreement, including harm to Company’s brand reputation and goodwill, operational costs and expenses incurred by Company relating to the Product’s unavailability, restoring customer relationships as between Company and AppSumo Customers, and any legal costs and expenses. Partner hereby waives any defense to Company’s right to obtain Standard Liquidated Damages and/or Similarity Liquidated Damages on the basis that actual damages are calculable or that the liquidated damages calculated in accordance with the formulas provided herein do not represent a reasonable determination of damages or otherwise constitute a penalty.

For purposes of this Section, a “Substantially Similar Product” means a digital offering that provides features and/or functionalities that Company, in its sole but reasonable discretion, considers to be related to the Product(s) offered by Partner on the Marketplace pursuant to this Agreement. Partner acknowledges and agrees that Company shall have the authority to determine, in its sole but reasonable discretion, whether a product offered for sale or advertised constitutes a Substantially Similar Product (the “SSP Determination”). Company acknowledges and agrees that it shall make such SSP Determinations in good faith and based on factors including: (A) a comparison of the advertised features and capabilities of the alleged Substantially Similar Product to those described in the applicable Product Listing; (B) a comparison of the customers addressed by the alleged Substantially Similar Product to AppSumo Customers; and (C) a comparison of the source code, object code, and executable code of the alleged Substantially Similar Product to the source code, object code, and executable code of the Product, both of which Partner hereby agrees to provide to Company, upon its request, for the sole purpose of comparing such source code, object code, and executable code.

2. Partner Obligations and Rights

a. Requested Information

To Company’s satisfaction and at any time during the Term (as defined herein), Partner shall complete and deliver to Company any questionnaires, agreements, terms, tasks, or other obligations imposed by Company on Partner in order to determine the quality and continued availability of the Product(s) that Partner desires to offer through the Marketplace, including by providing any information reasonably requested by Company. Such information may include financial statements, tax returns, current balance sheets, cash statements, and/or any other documents requested by Company. Company may, in its sole discretion, decide whether to offer any Product(s) on the Marketplace. Nothing contained in this Agreement shall be construed to restrict Company to making any such decision based solely on Partner’s provision of information in accordance with this Section, and Company may consider any information available to Company, whether or not provided by Partner, including results of any background checks in connection to Partner, to which Partner hereby consents. Company may remove any Product(s) from the Marketplace upon provision of ten (10) days’ written notice to Partner; provided, however, that if Company has any reason to believe that the Product(s) infringe, impede upon, violate, or otherwise misappropriate the Intellectual Property Rights (as defined herein), privacy right(s), or other proprietary rights of any third-party, then Company may immediately remove the Product(s) from the Marketplace upon Company’s transmission of written notice of such removal to Partner, and take any further actions that Company deems necessary to protect the interests of Company and any AppSumo Customers, including by issuing a Clawback Notice.

b. Promotional Materials

Partner shall provide Company with certain text, graphics, images, music, audio, video, information, videos, brand assets, and other materials (collectively “Promotional Materials”). Partner hereby grants to Company an unlimited, royalty free, fully paid up, and worldwide license to use, display, copy, publish, publicly perform, or otherwise make available the Promotional Materials to market, sell, offer for sale, distribute, offer subscriptions to and/or for, or otherwise alienate any of Partner’s Product(s) on the Marketplace. Provider assumes full responsibility for the accuracy and content of the Promotional Materials, which specifically includes all descriptions related to any Product(s), including but not limited to any purchase terms and conditions, features, capabilities, and benefits (collectively, the “Product Listing”).

c. Support and Maintenance

Partner shall provide online support and maintenance services to AppSumo Customers, including by providing responses to, and resolving, any and all support requests made by an AppSumo Customer through Partner’s online system or email (each, a “Support Request”). Partner shall respond to every Support Request within four (4) days of Partner’s receipt of such Support Request. Partner shall resolve each Support Request within fourteen (14) days of Partner’s receipt of such Support Request to the extent required to provide such AppSumo Customer with access to, and use of, the Product as described in the Product Listing and/or any applicable Promotional Materials. Partner shall provide all such resolutions to Company’s reasonable satisfaction. In the event of a violation of this Section, Partner hereby authorizes Company to refund any impacted AppSumo Customers and offset any such amounts from the Fees otherwise payable to Partner hereunder, or Clawback any such amounts from Partner, as the case may be. In addition, if the Partner discontinues support and maintenance services to AppSumo Customers, or the Product is chronically unavailable, then Company may enforce any and all of its rights under this Agreement.

d. Conformance

Partner shall ensure that the Product(s) offered through the Marketplace, at all times, materially conforms with the applicable Product Listing and any Promotional Materials and/or other statements that Partner has made, in whatever medium, about the Product(s) that an AppSumo Customer would reasonably interpret to be associated with a specific Product.

e. Duty to Inform

Partner shall inform Company of any communications from any AppSumo Customers that Partner receives that inform Partner of any: (i) non-conformance of any Product(s) with an applicable Product Listing and/or any Promotional Materials that an AppSumo Customer would reasonably interpret to be associated with the foregoing Product(s); (ii) changes to the Promotional Materials; (iii) changes to any Product Listing; (iv) allegations that any Product(s) infringe, impede upon, violate, or otherwise misappropriate the Intellectual Property Rights, privacy right(s), or other proprietary rights of any third-party; (v) changes in the availability of any Product(s) and/or any features offered therewith; and/or (vi) any dissatisfaction with the Product(s) and/or any online support services associated therewith as reported by an AppSumo Customer to Partner.

f. Material Business Changes

Partner shall provide at least thirty (30) days’ advance written notice to Company of any material changes to Partner’s business that may impact Company or AppSumo Customers. If Partner cannot provide such thirty (30) days’ advanced written notice for reasons beyond Partner’s control, then Partner shall, as soon as practicable, provide such notice to Company of any such material changes via email to support@appsumo.com. Such material changes include: (i) any price or feature changes to any of Partner’s Product(s) offered through the Marketplace; (ii) insolvency, liquidation, bankruptcy or dissolution of Partner; and/or (iii) a merger, acquisition, or transfer of all or substantially all of Partner’s assets or employees to another person or entity (a “Successor Entity”) (each of the foregoing events in this Section 2(f)(iii), a “Corporate Transaction Event”).

g. Response to Company

Partner shall provide a written response to any communications or inquiries from Company to Partner regarding any Product(s), Promotional Materials, Product Listing(s), and/or this Agreement, within fourteen (14) days of Partner’s receipt or any such communication or inquiry. If Partner fails to comply with the communication, approval, and/or cooperation requirements set forth herein, then Company may, in Company’s sole discretion: (i) remove or otherwise suspend the offering of any of Partner’s Product(s) from the Marketplace; (ii) withhold the payment of any Fees to Partner; (iii) Clawback any Fees from Partner; or (iv) take any other remedial actions deemed reasonable by Company.

h. Product Copies

Partner shall provide to Company a functional instance of the source and object code for any Product(s) offered through the Marketplace, in each case in the format and condition that such Product(s) appear and are made available through the Marketplace (the “Product Copies”). Partner hereby grants to Company an irrevocable license to publish, sell, offer for sale, alter, create derivative works from, modify, upgrade, market, publicly perform, copy, and/or otherwise alienate the Product Copies, Promotional Materials, and Product Listing(s) if, and only if, a Release Condition (as defined herein) occurs.

“Release Condition” means: (A) the dissolution or liquidation of Partner; (B) Partner’s seeking protection under bankruptcy laws or becoming the subject of an involuntary bankruptcy or an assignment for the benefit of creditors; (C) Partner’s communication to Company that Partner has or will become insolvent, plans to conclude its business affairs, or may become unable to meet its obligations under this Agreement; (D) Partner’s failure to perform its obligations under this Section; and/or (E) Partner’s breach of any representations or warranties under this Agreement.

i. Upgrades

Partner shall provide AppSumo Customers, at no charge, any upgrades, modifications, bug-fixes, and/or enhancements to the Product(s) that Partner provides to customers that are not AppSumo Customers, inclusive of any support and maintenance services related thereto.

j. Terms Imposed on AppSumo Customers

Upon written request, Partner shall provide Company with any terms to be imposed on AppSumo Customers in exchange for such AppSumo Customers’ use of any Product(s). Partner shall, at all times, ensure that the terms and conditions imposed on any AppSumo Customers by or on behalf of Partner substantially conform to the applicable terms and conditions herein and Company’s privacy policy as related to AppSumo Customers, the Product(s), Partner’s obligations and restrictions herein, and the availability of the Product(s). Partner shall ensure that its terms and conditions imposed on any AppSumo Customers conform with all applicable laws, rules, and regulations. The terms and conditions contained in this Section 2(j) shall survive the termination or expiration of this Agreement for any reason.

k. Improper Acts

If Company suspects, in its sole discretion, that Partner, or any third-parties related to or acting on behalf of Partner, have engaged in fraud, deceptive practices, or other improper acts, then Company, in its sole discretion and by providing written notice to Partner, may immediately: (i) remove or otherwise suspend the offering of any of Partner’s Product(s) from the Marketplace; (ii) withhold the payment of any Fees to Partner; (iii) Clawback any Fees from Partner; or (iv) take any other remedial actions deemed reasonable by Company.

3. Partner Restrictions

During the Term, Partner hereby agrees that it shall not:

a. Fail to offer any features or functionality of the Product that were described in any Promotional Materials and/or Product Listings and that any AppSumo Customer may have relied on in purchasing the Product on the Marketplace.
b. Revoke, limit, stall, or otherwise restrict any AppSumo Customer’s access to any Product(s) without Company’s prior written consent.
c. Charge any amounts directly or indirectly to any AppSumo Customer in exchange for use of, the ability to download, a license to, the rental of, or other manner of access to the Product(s), including by charging an AppSumo Customer for any so-called “in-app” and/or “in-application” purchases.
d. Charge any amounts directly or indirectly to any AppSumo Customer in exchange for the maintenance and support services offered by Partner pursuant to the terms and conditions of this Agreement.
e. Affect any changes, modifications, upgrades, or other differentiations to the Product(s) (“Product Changes”) without first providing Company with fourteen (14) days’ advance written notice detailing the nature of any such Product Change(s). Company reserves the right to review, request additional information related to, and/or reject any such Product Change. If Company rejects any such Product Change(s), then Partner shall continue to offer the Product(s) as such Product(s) then-currently exist on the Marketplace.
f. Disclose, publish, disseminate, or otherwise use any Customer Data for unsolicited commercial messages or unauthorized transactions.
g. Upload, post, email, or otherwise transmit any text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, information, data, and/or computer code (collectively, “Content”) that is, in Company’s sole discretion, unlawful, harmful, threatening, abusive, inciteful, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
h. Upload, post, email, or otherwise transmit any Content that, in Company’s sole discretion, harms minors in any way.
i. Impersonate any person or entity, including but not limited to, a Company agent or employee, or falsely state or otherwise misrepresent your affiliation with any person or entity.
j. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Marketplace.
k. Upload, post, email, or otherwise transmit any Content that Partner does not have a right to transmit under any law or under any contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships and/or under any nondisclosure agreements).
l. Upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of such solicitation.
m. Interfere with, or otherwise disrupt, the Marketplace, or any servers or networks connected to the Marketplace, or disobey any requirements, procedures, policies, or regulations of networks connected to, or otherwise affiliated with, the Marketplace.
n. Intentionally or unintentionally violate any applicable local, state, national, or international law, rule, or regulation, including but not limited to, regulations promulgated by the United States Securities and Exchange Commission, any rules of any national, or other, securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange, and/or the NASDAQ.
o. “Stalk” or, in Company’s sole discretion, otherwise harass any individual or entity in a manner that is, in any way, related to Company and/or the Marketplace.
p. Harvest, or otherwise collect, information about others, including email addresses, without their consent.
q. Use, or otherwise attempt to use, any “deep-link,” “page-scrape,” “robot,” “spider,” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Marketplace or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Marketplace or any Content, to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Marketplace, and Company reserves the right to bar any such activity.
r. Gain, or otherwise attempt to gain, unauthorized access to any portion or feature of the Marketplace, or any other systems or networks connected to the Marketplace or to any Company server, or to any of the services offered on or through the Marketplace, by hacking, password “mining” or any other means that, in Company’s sole discretion, are illegitimate.
s. Probe, scan, or test the vulnerability of the Marketplace or any network connected to the Marketplace.
t. Breach, or attempt to breach, the security or authentication measures on the Marketplace or any network connected to the Marketplace.
u. Reverse look-up, trace, or seek to trace any information relating to any other user of, or visitor to, the Marketplace, to its source, or otherwise exploit the Marketplace or any service or information made available or offered by or through the Marketplace, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, as provided for by or otherwise on the Marketplace.
v. Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Marketplace and/or Company’s systems or networks, or any systems or networks connected to the Marketplace or to Company.
w. The terms and conditions contained in this Section 3 shall survive the termination or expiration of this Agreement for any reason.

4. Confidential Information

a. Definition

The Parties acknowledge that it will be necessary for the Parties to disclose certain Confidential Information to one another in order for each Party to perform its obligations under this Agreement. “Confidential Information” shall include the trade and professional secrets, financial, business, operational, administrative, marketing, economic and technical or other data and all other non-public information relating to either Party and/or that Party’s affiliate, including specifically any information pertaining to any Product(s), Customer Data (as defined herein), Company Data (as defined herein), the Marketplace, this Agreement, AppSumo Customers, and/or any sponsors or affiliates of Company, whether written, oral or on other media, disclosed or revealed by a Party (the “Disclosing Party”) to the other Party (“Receiving Party”). Confidential Information shall also include all personally identifiable information including but not limited to names, addresses, telephone numbers, email addresses, and financial and/or other types of sensitive information about AppSumo Customers, whether or not marked as “Confidential” and whether disclosed before or after the execution of this Agreement. “Customer Data” means any and all information transmitted by or on behalf of an AppSumo Customer to Partner. “Company Data” means any and all information transmitted by or on behalf of Company to Partner.

b. Restrictions

Receiving Party shall not disclose, reveal, reproduce, copy, or otherwise make available any such Confidential Information to any third-party, and shall use any such Confidential Information solely for and only to the extent necessary to render the obligations under this Agreement.

c. Treatment Upon Termination

Upon the expiration or termination of this Agreement, or at the Disclosing Party’s request, Receiving Party shall deliver to Disclosing Party all such Confidential Information in Receiving Party’s possession, or, at the request of Disclosing Party, shall certify the destruction of any Confidential Information in its possession.

d. Exceptions

Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Confidential Information; (v) constitutes a Product Copy after the occurrence of a Release Condition; or (vi) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement, or court order, or the rules of any stock exchange; provided, however, that the Receiving Party shall advise the Disclosing Party of such required disclosure promptly upon learning thereof in order to afford the Disclosing Party a reasonable opportunity to contest, limit and/or assist the Receiving Party in crafting such disclosure.

e. Equitable Relief

Receiving Party acknowledges that any breach of this provision would cause irreparable harm to the Disclosing Party, which harm is not adequately compensable with monetary damages. Accordingly, in addition to any rights otherwise available at law, in equity, or by statute, the Disclosing Party shall be entitled to injunctive and other equitable relief in the event of a breach or threatened breach of this provision without the necessity of posting a bond.

f. Survival

This Section 4 shall survive the termination or expiration of this Agreement and persist in perpetuity.

5. Data Security and Privacy

a. Responsibility

Partner shall at all times during and after the Term maintain the sole responsibility for protecting any Customer Data that Partner receives or processes, and Partner shall comply with all applicable laws relating to such receipt and processing. Such applicable laws include but are not limited to any applicable data protection and privacy laws that govern the ways in which Partner can use personal information, and/or personally identifiable information. Such applicable laws may require that Partner posts and complies with its own privacy policy, which must be accessible to AppSumo Customers with whom Partner interacts. Partner’s privacy policy shall not conflict with this Agreement, Company’s Terms of Use, and/or Company’s Privacy Policy.

b. Safeguards

Partner shall maintain all Customer Data using industry standard administrative, physical, and technical safeguards that are designed to provide for the protection of the security, confidentiality and integrity of Customer Data. In accordance with the foregoing, Partner agrees that, at all times: (i) Partner will employ and maintain appropriate security technologies, processes, and safeguards in accordance with industry standards to secure any Customer Data stored, processed, and/or maintained by Partner; (ii) Partner shall prevent Customer Data from unauthorized access, disclosure, alteration, and use; and (iii) Partner will employ appropriate encryption procedures for all Customer Data to ensure the confidentiality, privacy, and security of such Customer Data.

c. Data Processor

Partner hereby acknowledges that Partner may receive, and determine what actions and/or inactions to take with respect to Customer Data. Partner acknowledges and agrees that the foregoing means that Partner may process personal information and that Partner may be considered an independent controller of data relating to certain individuals that Partner may have obtained through the Marketplace, Company, and/or AppSumo Customers. As a data controller and to the extent that Partner processes user personal information, Partner may be required under applicable data protection and privacy laws to honor requests received from such users for data access, portability, correction, deletion, and objections to processing. Partner hereby expressly agrees to honor all such requests promptly and in compliance with any applicable laws. If Partner, inadvertently or otherwise, discloses any Customer Data without the applicable AppSumo Customer’s express consent, then Partner shall be solely responsible for such unauthorized disclosure. If Company and Partner are found to be joint data controllers of personal information, and if Company is sued, fined, or otherwise incurs expenses as a result of any action or inaction taken by Partner as a joint data controller of Customer Data, then Partner agrees to indemnify Company for the expenses it incurs in connection with Partner’s processing of such Customer Data.

d. Security Audits

Upon Company’s request, Partner will make available to Company for review, its SSAE 18, SOC I Type 1, or SOC II Type 2 audit report or equivalent. Company agrees to treat such audit reports as Confidential Information under this Agreement. Partner shall promptly address and correct any control exceptions noted in a SSAE 18, SOC I Type 1, SOC II Type 2 audit report, or the equivalent thereto.

e. Security Breaches

If Partner discovers or is notified of a breach or potential breach of security relating to Customer Data, the Partner shall, at its sole expense, promptly: (i) notify Company of such breach or potential breach without unreasonable delay and in no case later than twenty-four (24) hours after discovery of the potential breach; (ii) in consultation with Company, investigate and remediate such breach or potential breach at least to the extent required by law; (iii) if the breach or potential breach resulted from a failure or weakness in systems or procedures that were Partner’s responsibility, provide Company with satisfactory assurances that the breach or potential breach will not recur; and (iv) cooperate fully to assist Company in (A) identifying individuals potentially affected by the breach, (B) conducting any risk assessment required by applicable law, and (C) providing any notifications required by applicable law. To the extent that the breach or potential breach resulted from acts or omissions of Partner, Partner shall be solely responsible for costs reasonably determined to be incurred by Company and Partner in connection with the foregoing activities, as well as to reimburse Company for actual costs of any fines or penalties assessed by any regulatory authority on Company. If the Parties, acting reasonably, determine that establishment of a toll-free telephone contact number is necessary to handle inquiries relating to the breach, and Company requests Partner to provide staffing to respond to calls to the toll-free number, then Partner shall provide such requested staffing at its sole expense.

6. Intellectual Property Rights

a. Definition

“Intellectual Property Rights” means, on a worldwide basis, any and all rights, titles, and interests in and to any intellectual and industrial property, including but not limited to any and all: (i) rights in patents and applications therefore; (ii) inventions, trade secrets, design, methods, processes, and/or know-how; (iii) copyrights, author’s rights, copyrights registrations, and applications therefore, and all other rights corresponding thereto throughout the world; (iv) any and all trade names, brands, domain names, corporate names, logos, common law trademarks, trademark registrations, and applications therefore; (v) computer programs, applications, or software, whether in source, object or executable code; and/or (vi) drawings, logos, plans, database rights, technical notes, prototypes, processes, methods, algorithms, any technical related documentation, and any proprietary rights in such programs, applications or software, including documentation and other materials or documents related thereto.

b. License to Company

Partner hereby grants to Company an irrevocable, perpetual, limited, and worldwide license to use, sell, offer for sale, market, distribute, promote, publish, publicly perform, and otherwise alienate the Product(s), the Promotional Materials, and the Product Listing(s) through the Marketplace in accordance with the terms and conditions contained herein.

7. Indemnification

Partner shall indemnify, defend, and hold Company harmless from and against any and all third-party claims, demands, costs, and liabilities (including all attorneys’ fees, expenses, and court costs) of any kind whatsoever, arising directly or indirectly from Partner’s breach, or alleged breach, of its representations or obligations hereunder, and/or any gross negligence or willful misconduct of Partner, and/or its representatives or agents.

8. Independent Contractor Status

Partner and Company are, and shall at all times remain, in all respects independent contractors, and nothing contained herein shall be construed as creating an employment, partnership, joint venture, agency, or any other relationship whatsoever, except that of independent contractors, between Partner and Company. Neither Party will have the authority to act in the name of, or to incur any obligation binding on, the other Party.

9. Term and Termination

a. Term

This Agreement shall become effective beginning upon the earlier of (i) the Effective Date of the applicable Promotion Agreement, as the Effective Date is defined in such Promotion Agreement and (ii) the date Partner’s Product was first available on the Marketplace, which shall be the “Effective Date” hereunder. This Agreement shall continue in full force effect unless and until either Party terminates this Agreement in accordance with the terms and conditions contained herein (the “Term”).

b. Termination

Unless otherwise specified in a Promotion Agreement, either Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party in the event that the non-terminating Party: (i) fails to perform or breaches any material term or condition of this Agreement; and (ii) does not cure such breach within thirty (30) days following the receipt of written notice from the non-breaching Party specifying the nature of the breach in reasonable detail. Company may terminate this Agreement, and/or any related Promotion Agreement, at any time, for any reason or no reason. Each Party’s obligations that arose prior to such termination shall survive and remain in full force and effect and shall not be revoked or adversely affected as a result of the termination of this Agreement.

c. Survival

The representations, warranties, and obligations that by their terms and context demonstrate that the Parties intended them to survive the termination of this Agreement for any reason shall survive the expiration or earlier termination of this Agreement. For the purposes of clarity and not limitation, the following Sections shall survive termination of this Agreement: 1(d); 1(e); 1(f); 1(g); 2(g); 2(i); 3; 4; 7; 10; 12; 13; and 14.

10. Limitation of Liability

IN NO EVENT SHALL COMPANY OR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS, REVENUE, DATA, OR USE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, INCLUDING, WITHOUT LIMITATION, LEGAL THEORIES OF CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE MARKETPLACE AND ALL INFORMATION, MATERIALS, AND SOFTWARE ACCESSIBLE THROUGH OR IN CONNECTION WITH THE MARKETPLACE ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS. THERE IS NO EXPRESS OR IMPLIED WARRANTY MADE AGAINST INTERFERENCE WITH THE ENJOYMENT OF ACCESS TO THE SERVICE OR THE INFORMATION CONTAINED THEREIN OR THE MARKETPLACE ITSELF. COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, USAGE, OR FITNESS FOR ANY PARTICULAR PURPOSE.

11. Authorization and Company Restrictions

a. Reservation of Rights

Except as expressly provided in this Agreement, nothing contained herein shall be construed to grant Company any right, title, or interest in or to any Intellectual Property Rights in, or otherwise relating to, the Product(s), whether by implication, estoppel, or otherwise. All rights, titles, and interests in and to the Product(s) are, and will remain with, Partner and any of its licensors as may be applicable.

b. License to Partner

Subject to Company’s approval of the Product(s) submitted by Partner to Company for evaluation to be listed on the Marketplace, and Partner’s compliance with the terms and conditions contained in this Agreement, Company hereby grants to Partner a limited, worldwide, and revocable license to offer any Product(s) approved by Company for sale, download, lease, license, and/or rental on the Marketplace in accordance with the terms and conditions contained herein.

12. Representations and Warranties

a. Title

Partner hereby represents and warrants to Company that Partner has sufficient rights, titles, and interests in and to all Product(s).

b. Non-Infringement

Partner hereby represents and warrants to Company that the Product(s), in whole or in part, do not and shall not infringe, violate, and/or otherwise misappropriate the Intellectual Property Rights of any third-party, and neither Company’s, nor any AppSumo Customers’, use of the Product(s) in accordance with the terms of the applicable license will infringe, violate, and/or otherwise misappropriate the Intellectual Property Rights of any third-party.

c. Virus

Partner hereby represents and warrants to Company that the Product(s) do not and shall not contain any lock, clock, timer, Trojan horse, Easter egg, time bomb, counter, copy protection feature, replication devices or defect (“virus” or “worm” as such terms are commonly used in the computer industry) or other device which might lock, disable, or erase the Product(s), prevent Company and/or any AppSumo Customer(s) from fully utilizing the Product(s), or require action or intervention by Partner, Company, or other persons or entities to allow Company and/or any AppSumo Customer(s) to utilize the Product(s).

d. Compliance with Laws

Partner hereby represents and warrants to Company that Partner shall, at all times, comply with any and all applicable laws.

e. Authority

Partner hereby represents and warrants to Company that it has the power and authority, and the legal right, to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery, and performance of this Agreement along with the consummation of any transactions contemplated by this Agreement have been duly authorized by Partner.

f. Export Control and Sanctions

Partner hereby represents and warrants to Company that Partner will not obtain, retain, use, or provide access to the Product(s) to any third-party in a manner that may breach any applicable export control or economic sanctions laws and regulations for any jurisdiction, including the United States of America and the European Union and its Member States. Partner hereby further represents and warrants that it is not affiliated with a specially designated or sanctioned entity under any of those laws and that, in any transaction relating to Company, the Marketplace, and/or any AppSumo Customers, Partner will not involve sanctioned parties, including without limitation through the use of bank accounts at banks that are themselves sanctioned parties.

g. Services

Partner hereby represents and warrants to Company that it shall provide any and all support and/or maintenance services to AppSumo Customers in a professional and workmanlike manner, at least in accordance with the commonly accepted standards in the software as a service industry.

h. Data Privacy

Partner hereby represents and warrants to Company that Partner’s collection, access, use, storage, disposal and disclosure of any and all Customer Data and Company Data does and will comply with all applicable data privacy, consumer privacy, and credit collection laws, in any jurisdiction where such laws may apply based on the location of such applicable AppSumo Customer(s), and that Partner will obtain any and all necessary consents from any AppSumo Customer(s) that are necessary for Partner to perform its obligations hereunder.

i. Encryption

Partner hereby represents and warrants to Company that Partner has the capability to encrypt all data stored by or on behalf of Partner on any storage, archival or backup medium, and that Partner will, at no charge to Company and/or any AppSumo Customer, use best practices to encrypt all Customer Data and Company Data (including any Confidential Information) both in transit and at rest to ensure the confidentiality, privacy and security of all such data and information.

j. Consent to be Bound

Partner hereby represents and warrants to Company that Partner has thoroughly reviewed this Agreement and consents to be legally bound to the terms and conditions contained herein. Partner further represents and warrants that it understands that it has the ability to negotiate the terms and conditions contained herein, that the version of this Agreement as executed by the Parties represents the full and complete bargain between the Parties, and Partner shall not assert any argument of contra proferentem or otherwise insinuate that Company drafted this Agreement without the consent or agreement of Partner.

k. Accuracy

Partner hereby represents and warrants to Company that the Product(s) and any related descriptions, including the Product Listing, Promotional Materials, and/or other statements made by or on behalf of Partner, in any medium, are not and shall not be: (i) false; (ii) inaccurate; (iii) misleading; (iv) fraudulent; (v) unlawful; and/or (vi) defamatory. Partner further represents and warrants to Company that any and all information, statements (financial or otherwise), documents, and/or other materials provided by Partner to Company pursuant to Section 2(a) herein, are true and accurate.

l. Honor of Product Warranties

Partner hereby represents and warrants to Company that Partner will honor any express warranties given by Partner to any AppSumo Customer(s).

m. Compliance

Partner hereby represents and warrants that it shall, at all times during the Term, strictly comply with the terms and conditions contained in Sections 2, 3, 4, and 5 of this Agreement.

13. Disputes

Partner hereby agrees that any dispute, claim or controversy arising out of or relating to this Agreement (a “Dispute”) shall only be resolved in accordance with the dispute resolution procedures set forth below. Notwithstanding the foregoing, Partner further agrees that Company may, at its sole discretion, decide whether to attempt to resolve any Dispute through the resolution mechanisms contained in this Section 13. COMPANY MAY, IN COMPANY’S SOLE DISCRETION, CHOOSE TO BRING ANY DISPUTE IN THE STATE OR FEDERAL COURTS SITTING IN TRAVIS COUNTY, TEXAS. PARTNER HEREBY IRREVOCABLY AGREES THAT, IF COMPANY CHOOSES TO BRING ANY DISPUTE IN THE STATE OR FEDERAL COURTS SITTING IN TRAVIS COUNTY, TEXAS, THEN SUCH COURTS SHALL HAVE EXCLUSIVE PERSONAL JURISDICTION OVER THE PARTIES AND VENUE MAY ONLY BE PROPERLY LAID IN SUCH COURTS. PARTNER UNDERSTANDS AND AGREES THAT THIS SECTION 13 CONSTITUTES A KEY PORTION OF THE BARGAIN BETWEEN THE PARTIES AND THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS SECTION 13.

a. Negotiation; Notice and Response

The Parties will attempt, in good faith, to resolve through negotiation any Dispute. In the event of a Dispute, either Party may initiate negotiations by providing written notice to any other Party, setting forth the subject of the Dispute and the relief requested. Within twenty-one (21) calendar days after receipt of said notice (or such other period as may be agreed to by the Parties in writing), the receiving Party shall submit to the other Party a written response. The notice and response shall include: (i) the general statement of the Party’s position; and (ii) one or more recommended solutions to the Dispute. If the Dispute is not resolved by this exchange of correspondence, then a representative of each Party, with full settlement authority, will meet at a mutually agreeable time and place (including digitally meeting) within thirty (30) calendar days of the receipt of the response in order to exchange relevant information and attempt to resolve the Dispute. All such communications, correspondence, proposals and recommendations are confidential and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in any such communications, correspondence, proposals, and/or recommendations.

b. Mediation

If the Dispute is not resolved through the negotiations set forth in Section 13(a), then the Parties hereby irrevocably agree that the Parties together, or either of the Parties individually, shall submit the Dispute to the American Arbitration Association (“AAA”), or its successor, for mediation in accordance with the then-current AAA mediation procedures pertaining to the type of Dispute at issue. The mediation shall occur through the AAA located in Travis County, Texas, unless the Parties mutually agree to a different venue and/or governing body in a writing signed by Parties. The Parties will cooperate with the AAA and with one another in selecting a single mediator from the AAA’s panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith, and that they will equally share the cost of utilizing the AAA and the mediator. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by either of the Parties, their agents, employees, experts and attorneys, and by the mediator or any AAA employees, are confidential and inadmissible for any purpose, including impeachment, in any lawsuit or other proceeding involving the Parties; provided, however, that evidence which is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable merely as a result of its use in mediation.

c. Arbitration

If the Dispute is not resolved through the negotiation and mediation procedures set forth above in Sections 13(a) and 13(b) respectively, then the Parties agree that the Parties collectively, or either of the Parties individually, shall submit the Dispute to the AAA, or its successor, for arbitration before a sole arbitrator in accordance with the then-current AAA arbitration procedures pertaining to the type of Dispute at issue. In any such event, Partner shall serve Company with any arbitration demand by mail to: 1305 E. 6th St., Unit 3, Austin, TX 78702. Judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. If the AAA declines to arbitrate any Dispute, then such Dispute shall be arbitrated by another alternative dispute resolution service mutually chosen by the Parties in a signed writing, or by an alternative dispute resolution service or arbitrator selected by the appropriate court upon a Motion to Compel Arbitration. The place of arbitration shall be Travis County, Texas. The prevailing Party in any arbitration shall be awarded reasonable attorneys’ fees, expert and non-expert witness costs and expenses, and other costs and expenses incurred in connection with the arbitration unless the arbitrator, for good cause, determines otherwise. Costs and fees of the arbitrator (including the cost of the record of transcripts of the arbitration) shall be borne by the non-prevailing Party, unless the arbitrator for good cause determines otherwise. The arbitrator is not authorized to: (i) award punitive damages; (ii) hear or determine any pre-hearing motions; or (iii) expand the Parties’ rights to discovery beyond the rights provided by the AAA rules. If the sum of the relief sought by either Party’s claims exceeds seventy-five thousand dollars (75,000.00 USD), then the AAA’s Commercial Arbitration Rules will apply, as modified by this Agreement. As in court, the arbitrator shall apply governing law, any counsel must comply with Federal Rule of Civil Procedure 11(b), and the arbitrator may impose any sanctions available under the AAA Rules, Rule 11, or other applicable law. The arbitrator also shall enforce statutes of limitations and other time-based defenses, offers of judgment and/or compromise, and fee-shifting rules in the same way as any state or federal court in Travis County, Texas would enforce any of the foregoing. The award of the arbitrator shall be grounded in law and accompanied by a reasoned opinion. Nothing in this Section 13(c) shall be construed to prevent either Party from seeking relief from the state and/or federal courts as necessary to: (A) protect either Party’s name; (B) protect either Party’s proprietary information or enforce any right(s), title(s), or interest(s) that either Party may have in and/or to such proprietary information; or (C) for any other appropriate provisional, injunctive, or emergency remedy. In the event that either Party engages a state or federal court pursuant to Section 13(c)(C) herein, the Parties shall not be required to perform the obligations set forth in Sections 13(a) and 13(b) herein, and may proceed directly to the appropriate court for relief. Notwithstanding the foregoing, in the event that Partner engages a state or federal court pursuant to Sections 13(c)(A) and/or 13(c)(B) herein, Partner shall be required to perform the obligations set forth in Sections 13(a) and 13(b) herein, and may not proceed directly to the state or federal courts for relief. Except as may be required by law, neither Partner nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Company. The arbitration award may only be appealed pursuant to the now-current AAA’s Optional Appellate Arbitration Rules (the “Appellate Rules”). The arbitration award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an underlying award, as defined by now-current Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. The Parties hereby irrevocably agree that any award of the appeal tribunal shall be final and binding, and judgment may be entered by a court having jurisdiction thereof.

d. Binding Effect

PARTNER EXPLICITLY AGREES THAT IT CONSENTS TO THE JURISDICTION OF THE AAA IN THE UNITED STATES, AND THAT PARTNER IS A “SIGNATORY” FOR THE PURPOSES OF THE CONSTRUCTION OF THIS AGREEMENT. BY SUBMITTING A PRODUCT TO BE MADE AVAILABLE THROUGH THE MARKETPLACE, PARTNER AGREES THAT IT HEREBY “SIGNS” THIS AGREEMENT. If Partner argues, at any point, that the AAA does not have proper jurisdiction, then the Partner shall be deemed to have defaulted in any such proceeding, and Company shall be entitled to recover any and all relief to which it has pled that it is entitled; provided, however, that the foregoing provision of default shall not apply to any Dispute brought pursuant to Sections 13(c)(A), 13(c)(B), and/or 13(c)(C) herein.

e. Class and Representative Action Waiver

The Parties hereby agree that they may bring a Dispute against one another only on an individual basis, and not on a class, representative, or collective basis, and each Party hereby expressly and irrevocably waives any right it may have to bring any such claims. The Parties may only seek or obtain individualized relief, and Disputes between the Parties may not be arbitrated or consolidated with those of any other person or entity. If a court (after exhaustion of all appeals) decides that any part of this Section is unenforceable as to a particular claim or request for relief, then, solely, that particular claim or request for relief shall be severed from the arbitration and may be litigated in a court of competent jurisdiction under this Agreement; provided, however, that such litigation may only commence after the arbitrator issues an award on any and all arbitrable claims and remedies.

14. General

a. Entire Agreement

This Agreement is the sole and entire agreement between Partner and Company with respect to the subject matter hereof and supersedes and terminates all prior agreements, understandings, arrangements, and discussions whether oral or written.

b. Amendment

Company may amend this Agreement from time-to-time by providing Partner written notice of any such amendment or by posting an updated Agreement on its website. Partner may opt-out of any changes to this Agreement by, within ten (10) days of Company’s transmission of any such written notice of an amendment thereto or the posting of the updated Agreement, providing written notice to Company of Partner’s refusal to accept such amendment(s). If Partner does not so notify Company of its refusal to accept such amendment(s) within ten (10) days, then Partner will be deemed to have accepted such amendment(s), and Partner shall be legally bound thereto.

c. Assignment

Partner may not assign this Agreement to any other individuals or entities without the express written consent of Company.

d. Notices

Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each a “notice”) in writing and addressed to the other Party at its address set forth herein, or to any such other address that the Party receiving any such notice may designate from time to time in accordance with this Section. In the case of Partner, Company may address any notices to the email address associated with its AppSumo account. In the case of Company, unless otherwise specified herein, Partner shall address any notices to support@appsumo.com.

e. Governing Law and Venue

This Agreement shall be governed by the laws of the State of Texas, without regard to its conflicts of law principles, and any Disputes arising out of or otherwise related to this Agreement shall be brought, exclusively in accordance with the terms and conditions imposed by Section 13, and, if appropriate under Section 13, in the state or federal courts sitting in Travis County, Texas. The Parties hereby irrevocably agree to personal jurisdiction and exclusive venue in Travis County, Texas, and waive any argument to the contrary. Notwithstanding the foregoing, nothing contained in this Section shall be construed to waive the applicability of the Federal Arbitration Act. In the case that this Section 14(e) conflicts with the terms and conditions contained in Section 13, the terms and conditions in Section 13 shall control.

f. Non-disparagement

Partner shall not disparage Company, the Marketplace, and/or any AppSumo Customers, orally or in writing, for any reason.

g. Successor Liability

If a Corporate Transaction Event occurs with respect to Partner, then Partner and Successor Entity shall be jointly and severally liable for paying to Company, within fourteen (14) days of the consummation of any Corporate Transaction Event, an amount equal to three times (3x) all Fees paid by Company to Partner (“Transaction Liquidated Damages”); provided, however, that Successor Entity assumes all of the obligations and liabilities of Partner under this Agreement, including its continuing to honor all obligations in connection with each Product sold hereunder, each Partner and the Successor Entity shall not be required to pay Transaction Liquidated Damages to Company. A Successor Entity assuming such obligations shall be considered to be a Partner with respect to this Agreement. The Parties intend that the Transaction Liquidated Damages constitute compensation, and not a penalty. The Parties acknowledge and agree that the harm to Company and AppSumo Customers caused by a failure of the Successor Entity to assume all of the obligations and liabilities of Partner under this Agreement would be impossible, or otherwise unreasonably difficult to accurately estimate as of the Effective Date and that the Transaction Liquidated Damages constitute a reasonable estimate of the anticipated or actual harm that might arise from any such failure.

h. Pass Through

Partner hereby assigns to each AppSumo Customer that purchases a Product through the Marketplace, all of Partner’s rights pursuant to warranties provided by the licensors or providers of any such Product, and hereby authorizes each such AppSumo Customer to enforce in Partner’s name all warranties, agreements, or representations, if any, which may have been made by the manufacturers, licensors, or providers of such Product to Partner. Partner shall assist each such AppSumo Customer in making any warranty claims against the licensors or providers of such Product.