Commerce Central Developer Agreement

1. Introduction

Thank you for your interest in Commerce Central (“Commerce Central”), a website, distribution platform and suite of related services that enables third party developers to create and distribute marketing, ecommerce and other website solutions (“Applications”) to website and/or online storefront operators (“Merchants”).

2. Acceptance of Developer Agreement

By creating a Commerce Central developer account, using any of the Commerce Central developer features (include Application creation tools), clicking any applicable box or button provided for acceptance of this Developer Agreement or otherwise submitting or making an Application available for inclusion in or distribution via Commerce Central, you accept and agree that you and your Application are subject to this Developer Agreement, which constitutes a legal agreement with Aabaco Small Business, LLC. and its subsidiaries (the “Company”). The Company is a wholly-owned subsidiary of Yahoo! Inc (“Yahoo”). If you are an individual acting as a representative of a corporation or other legal entity, you represent that you have the legal authority to bind the legal entity to this Developer Agreement, in which case "you" or "your" shall mean such entity. You also agree that your use of Commerce Central is subject to the Company’s Terms of Service (the “TOS”) and any other terms, policies, guidelines or requirements referred to in this Developer Agreement or that may be linked or posted on Commerce Central (collectively, the “Terms”).

You represent that you are at least 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Developer Agreement and to abide by and comply with this Developer Agreement. The developer features of Commerce Central are not intended for those under the age of 18.

3. Changes to Developer Agreement

The Company reserves the right to update and change, from time to time, this Developer Agreement and/or any other Terms. You can find the most recent version of this Developer Agreement linked or posted within Commerce Central’s developer portal/area. The Company may change this Developer Agreement by posting a new version without notice to you. Use of Commerce Central after such change constitutes acceptance of such changes.

4. Certain Definitions

For purposes of this Developer Agreement:

5. Privacy Policy

Account registration data and certain other information about you are subject to the Company's Privacy Policy. You understand that through your use of Commerce Central you consent to the collection and use (as set forth in the privacy policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by the Company and Yahoo.

6. Placement and Distribution of Applications

(a) Inclusion in Commerce Central

The Company may, in its sole discretion, choose whether and in what manner to make your Applications available via Commerce Central. You acknowledge, understand and agree that the company, in its sole discretion, may consider a multitude of factors in determining whether and how to promote you and your Applications within or through Commerce Central, including, without limitation, reviews and feedback received from Merchants. Without limitation of the foregoing, you agree that the Company may, in its sole discretion:

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  1. include, or exclude, your Applications or other Developer Content in/from Commerce Central;
  2. choose any particular placement for your Developer Content within Commerce Central;
  3. include, or exclude, your Applications or other Developer Content in/from specific Web Service Platform distribution arrangements (or allow the applicable Web Service Platform operator to exclude your Applications from such arrangements); and
  4. include, or exclude, your Applications as a product upsell with the Company products or services (including those made available in connection with Commerce Central).

(b) License

You hereby appoint the Company to act as your agent for purposes of promoting and making your Applications available to Merchants via Commerce Central (including as part of integrations with Web Service Platforms) and you acknowledge and agree that you, not the Company, are the distributor of your Applications and the merchant of record with respect to the sale of your Applications and related services.

You do not transfer ownership of your Developer Content by submitting it to Commerce Central, but you do grant to the Company a non-exclusive, worldwide, assignable and transferable, fully-paid up royalty-free right and license to (but the Company has no obligation to) reproduce, store, modify, transmit, distribute, publish, publicly and privately perform and display and otherwise use the Developer Content in connection with the Company’s promotion, operation and provision of Commerce Central and other the Company properties (including Yahoo Small Business). For the avoidance of doubt, the foregoing license includes the right for the Company to (i) bundle and/or package your Developer Content with the Company and/or other third party products and services for delivery and/or promotion via Commerce Central (including in stores and marketplaces hosted by Web Service Platforms); and (ii) include your Developer Content in marketing campaigns, presentations, press releases and other items in connection with the marketing and promotion of Commerce Central and/or Applications. However, the Company’s right to modify Developer Content is limited to modifications made to (a) correct grammatical and spelling errors or omissions, (b) limit or mitigate claims relating to such Developer Content, (c) improve the quality of the portrayal and/or description of Developer Content, and/or (d) fit the format and the look-and-feel of Commerce Central or the applicable Web Service Platform.

You acknowledge that the Company may rely on its affiliates and/or third party agents or contractors to provide services or functions relating to Commerce Central and/or other properties, owned or operated by the Company or Yahoo. Accordingly, you acknowledge and agree that the licenses granted hereunder include the right for the Company to make Developer Content available to such parties and for such parties to exercise the foregoing license rights in connection with the provision of services for or to the Company. You further acknowledge and agree that you are solely responsible for the acquisition of any and all third party clearances, permissions and licenses which are necessary for the Company and such parties to exercise the foregoing rights, including, without limitation, with respect to the use of any copyrighted or trademarked materials.

(c) Web Service Platforms

Commerce Central includes the ability for developers to distribute Applications via various Web Service Platforms that have integration/distribution arrangements with Commerce Central. However, you acknowledge and agree that (i) you may be required to enter into a business or marketing arrangement with the applicable Web Service Platform provider, and/or agree to the provider’s terms of use/service or other agreements relating to the Web Service Platform, before your Applications can be listed or distributed via the Web Service Platform and (ii) the Web Service Platforms supported by Commerce Central may change over time.

(d) Development

You acknowledge that the Company may be independently developing or creating software, products or services that may be similar to your Applications and, accordingly, nothing in this Developer Agreement will be construed as restricting or preventing such development or creation or the exploitation of such software, products or services.

7. Application Pricing, Compensation

(a) Application Pricing and Transaction Activities

You are the merchant of record for sales of your Applications and related services. You are solely responsible for (i) setting the price(s) associated with the installation, use and provision of your Applications and related services and (ii) billing, payments, refunds, billing inquiry, collections and other transaction related activities for your Applications and related services (through revenue recognition) via direct interaction with Merchants, which activities must be conducted in a timely and responsible manner. However, you agree to (i) provide Merchants with a full refund of Application Service Fee if requested within 72 hours of the Merchant’s installation of an Application and (ii) otherwise offer refunds to Merchants in accordance with the terms and conditions of your applicable payment processor.

(b) Commerce Central Fees

In consideration of the Company’s operation of Commerce Central for each Application, you agree to pay the Company the following non-refundable fees, per Application:

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  1. a one-time setup fee in the amount of US$500, which shall be due and payable prior to or upon, at the Company’s sole discretion, the date that the Company makes the Application available to Merchants via the Commerce Central;
  2. fee for use of the platform in the following amount: (a) if the total Application Service Fee charged in a calendar month is $10,000 or less, 25% of such Application Service Fee and (b) if the total Application Service Fee charged in a calendar month is greater than $10,000, 20% of such Application Service Fee (the “Platform Fee”). The Platform Fee shall be due and payable within fifteen (15) days following the end of each calendar month in which a Merchant is charged such Application Service Fee.

In determining the Platform Fee, you may deduct from Application Service Fee any properly evidenced payments made to third party publishers (“Publisher”) for displaying Advertising ("Publisher Payments"), on behalf of a Merchant, on such Publisher’s website and/or mobile site. “Advertising” shall mean a promotional message that consists of text, graphics, audio and/or video or any combination thereof that is displayed for the purpose of publicizing a Merchant’s products or services. For avoidance of doubt, to deduct for such Advertising, you must demonstrate, at the Company’s request and reasonable satisfaction, that such payments were made to a Publisher.

The Company may, on a case-by-case basis, in the Company’s sole discretion, waive the one-time setup fee for specific Applications as part of a promotion, special offer or other accommodation. Further, if you demonstrate, to the Company’s reasonable satisfaction, that you are obligated to pay a Web Service Platform provider more than 20% of Application Service Fee charged per calendar month with respect to Applications installed via Commerce Central’s integration with such Web Service Platform, the foregoing Platform Fee rates shall be reduced to 10%.

The foregoing fees will be made in U.S. Dollars via the Company’s designated payment method (which payment method will be identified to you via written notice from the Company and may be changed by the Company from time to time).

The Company may change the foregoing fees, in its sole discretion, from time to time upon at least thirty (30) days prior written notice to you. If you object to a change in fees with respect to any Application available or submitted for inclusion in Commerce Central as of the date of the Company’s notice, you may, as your sole remedy, request removal of such Application from Commerce Central (via the Application removal procedure provided in Commerce Central) at least five (5) days prior to date that such changes in fees becomes effective, in which case, and unless otherwise agreed by the Company (in its sole discretion), the change in fees shall not apply to such Application and the Company shall remove such Application from Commerce Central within a reasonable period of time.

(c) Direct Pay

Commerce Central includes the ability for you to utilize the Company’s direct payment platform ("Direct Pay") for the payment processing for certain Applications. By using Direct Pay for an Application, you accept and agree that you and your Application are subject to the additional terms set forth on Exhibit B.

(d) Taxes

Since you, not the Company, are distributing and selling your Applications and related services as the merchant of record, you are solely responsible for determining whether charging a fee to a Merchant is taxable and the applicable tax rate for you to collect for each taxing jurisdiction where the Application and related services are made available. You are solely responsible for remitting taxes to the appropriate taxing authority based on such transactions and will indemnify and hold the Company and its affiliates harmless from any such taxes. For clarity, the Company does not have any tax obligations to you with respect to your Developer Content, including without limitation obligations to track and process payments, authenticate paid or previously paid installs, maintain payment records, or pay, report, or charge sales, use or excise taxes.

In addition, you shall pay, and shall indemnify and hold the Company harmless from, all taxes, duties and levies imposed by any foreign, federal, state, local or other authorities based on the payments to the Company under this Developer Agreement (other than taxes imposed or based on the Company’s net income).

Please consult your attorney or tax adviser to determine whether you need to collect and remit taxes.

(e) Audit

You agree to keep accurate records and books of account relating to the calculation and payment of all amounts payable under this Developer Agreement. The Company will have the right to cause an audit to be made of your applicable records and books of account by an independent certified public accounting firm for the purpose of verifying you compliance with reporting and payment obligations under this Developer Agreement. Accordingly, you agree to provide the Company’s designated audit or inspection team access to the relevant records and books of account during normal business hours with reasonable advance notice. Such audits will be made no more often than once every 12 months and will minimize disruption to your business. In the event that any error is discovered in any report or payment made by you, you will immediately correct any such error (including by making payment to the Company of amounts due). If an audit reveals that you have under-paid or misreported to the Company by 3% or more of the amounts due or information reported during any calendar month, you agree, in addition, to pay the Company’s reasonable costs and expenses incurred in conducting such audit.

8. Reports

Within 15 days following the end of the first calendar month in which an Application is available to Merchants via Commerce Central, and each calendar month thereafter, you will provide to the Company a reasonably detailed written report covering the calculation of Platform Fee, which report shall use the format or template requested by the Company and include, at minimum: (i) the Application Service Fees charged in such month (separated by Application, service type and Merchant), (ii) your calculation of the Platform Fee; (iii) applicable Merchant company names and URLs, and (iv) such other information as may be reasonably requested by the Company.

9. Responsibility for Developer Content

(a) Responsibility for Developer Content

You are solely responsible for your Developer Content (including its development and operation and any harm resulting from your Developer Content) and you covenant, represent and warrant that:

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  1. the operation, transmission, distribution, reproduction, publication, performance and display and other use of your Developer Content as contemplated herein does not and will not infringe, misappropriate or otherwise violate any intellectual property or other proprietary right of any third party;
  2. you have fully complied and will continue to comply with any third-party licenses and agreements relating to your Developer Content;
  3. you and your Developer Content do not and will not violate any applicable law, regulation, ordinance or order;
  4. your Developer Content does not and will not constitute, contain, install or attempt to install or promote any viruses, worms, Trojan horses, spyware, malware or any other harmful or destructive content or code (including, without limitation, any code designed to enable you or others to gather information about or monitor the online or other activities of another party without authorization);
  5. your Developer Content does not and will not (a) constitute the confidential or non-public information of any other person or entity; (b) imply, either directly or by omission, that it is produced or endorsed by the Company;
  6. you are not entitled to any compensation or reimbursement of any kind from the Company with respect to this Developer Agreement or the Company’s activities in connection with Commerce Central; and
  7. your Developer Content does not and will not contain, upload, post, transmit, or otherwise make available (a) any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or otherwise objectionable; or (b) any type of adult, mature, or sexually explicit content.

(b) Developer Requirements and Obligations

As a Commerce Central developer, you agree that you have and will comply with the following requirements and minimum standards, the satisfaction of which will be determined by the Company in its sole discretion:

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  1. You must accurately categorize and describe the type and nature of your Applications if and when requested by the Company to do so (including via forms presented when creating or submitting the Application to Commerce Central). Your Application descriptions, along with your websites relating to your Applications, must (a) include a meaningful, up-to-date and reasonably detailed description of the functions, features and pricing of your Applications; (b) display your up-to-date, valid contact information (including a working contact phone number); and (c) include a conspicuous link to the terms of use/service agreement and privacy policy for your Applications.
  2. You agree to provide information related to your Applications that may be reasonably requested by the Company from time to time, including information regarding the origin of your Applications and information needed to verify your compliance with this Developer Agreement.
  3. You will use Commerce Central only for its intended purpose and as permitted by applicable laws, regulations, ordinances and orders in relevant jurisdictions.
  4. Each Application must be made available under a terms of use/service agreement which, at minimum, includes “disclaimers of warranty” and “limitation of liability” provisions that are substantially as protective of the Company as those set forth in this Developer Agreement.
  5. You shall protect the privacy and legal rights of Merchants and end users. Any personal or sensitive information collected via your Applications must be done securely. Further, each Application must be governed by a legally adequate privacy policy that, among other things: (a) describes in reasonable detail the information that is collected or transmitted and how such information is used, managed, protected and disclosed, including the circumstances in which such information may be disclosed to third parties; and (b) respects website visitors'/end users’ choice to “opt out” of tracking by you and your Application. You and your Applications shall abide by such privacy policy and comply with all applicable laws relating to the collection of information from Merchants and end users.
  6. Your Applications may not offer or provide any function or service that could put a Merchant at risk of violating the applicable terms of use/service of the Company, any Web Service Platform operator or other third party.
  7. Any JavaScript or other software code provided, used or otherwise made available by you or your Application shall be used and shall perform solely for the purpose of carrying out the intended, disclosed purpose of you Applications and may not be used for any other purpose, including, without limitation: (a) collecting personally identifiable information, (b) manipulating or otherwise interfering with page content, (c) moving page content, (d) hijacking or otherwise manipulating destination URLs, or (e) manipulating or moving content. You further agree that, with respect to any JavaScript or other software code provided to the Company or that “piggybacks” or otherwise interfaces with any the Company JavaScript or systems: (i) such software code shall not permit any third party to, and shall not engage in any activity that could allow any third party to, embed any code into, piggyback on or receive any calls from such software code; (ii) you will provide the Company with at least 15 days prior written notice of any change to any such software code; and (iii) the Company may, in its sole discretion per its right to remove or suspend Developer Content (as further provided below), remove or deactivate such software code at any time (including, without limitation, in the event of degradation in the experience received by visitors to Merchant sites).
  8. Each Application must implement and utilize any API required by the Company.
  9. You and your Applications will not engage in any activity that (a) interferes with, disrupts, damages, harms or accesses in an unauthorized manner any device, server, network or other property, service or data of any third party; (b) is deceptive, misleading, fraudulent or is designed to phish or perform other identity theft; (c) promotes or advertises gambling or illegal or controlled products or services, or (d) degrades, intimidates, incites violence against, or encourages prejudicial action against someone or a group based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, religion, geographic location or other protected category or constitutes hate speech.
  10. If you or any of your Applications impact a web page in a manner that hinders the ability of the Company or the applicable Merchant to troubleshoot or otherwise diagnose an issue with respect to such web page, you agree to use your best efforts to resolve such issue and eliminate such impact in a timely fashion.
  11. You will provide clear and conspicuous written notice to Merchants (in reasonable detail) if any services or features provided by your Applications, if modified or removed by the Merchant, would result in the Merchant being unable to use or operate any portion of its website/storefront.

(c) Support and Maintenance

Support and maintenance of your Applications is solely your responsibility. You acknowledge that failure to provide support or maintenance for your Applications may result in less prominent exposure within Commerce Central, poor reviews or ratings and/or low sales or installations.

(d) Export and Import Compliance

Your use of Commerce Central and your Applications may be subject to the export and import laws of the United States and other countries. You agree to comply strictly with all applicable export and import laws and regulations, including but not limited to the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Industry and Security and the trade sanctions administered by the U.S. Department of Treasury, Office of Foreign Assets Control. In particular, you: (a) agree that you will not directly or indirectly conduct, promote or facilitate business in countries subject to U.S. embargo or trade sanctions through your Application or use of Commerce Central or any other platforms, products, and services of the Company or any of its affiliates, (the countries subject to embargo or trade sanctions are Cuba, North Korea, Iran, Sudan and Syria) and you agree that you are responsible for complying with any updates and revisions that the U.S. Government makes to this list of prohibited export destinations; (b) represent and warrant that you are not located in a country subject to U.S. embargo nor a party identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; (c) agree not to make your Application available for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; and (d) will provide the Company with all information that may be required for purposes of complying with trade laws, including export control classification numbers and details about your Application needed to make classification determinations.

(e) APIs

If your Application utilizes any APIs made available by the Company, you agree that (i) you and your Application will use such APIs solely for their intended purpose; (ii) your Application will not hide or mask its identity as it uses the APIs; (iii) you and your Application will not use the APIs for any application or service that replicates or attempts to replicate the Company’s hosted services or experience and (iv) you and your Application’s use of such APIs is further subject to and governed by the Yahoo APIs Terms of Use, currently available at http://info.yahoo.com/legal/us/yahoo/api/api-2140.html.

(f) Commerce Central Data

If the Company makes any Merchant information, statistics or other data or information available to you in connection with your Application, Commerce Central or any related transaction (whether via APIs, reports or otherwise), you and your Application may only use such data and information for the limited purpose for which it is provided, in accordance with all applicable Terms, and you acknowledge and agree that the Company owns and retains all of its right, title and interest in such data and information. You may not use any such data or information for unsolicited commercial messages and you may not add any Merchant or user to your email or physical mailing list without the express consent from that Merchant or user (which consent must include notification that such use of such information is subject to your privacy policy). For the avoidance of doubt, you or your Application are permitted to contact Merchants to alert them if their ability to use a specific Application is about to expire and, in connection with this alert, to provide instructions on how to renew their use of the same Application.

(g) Non-Disparagement/Non-Competition

During the period of your use of Commerce Central and for two years thereafter, you will not: (i) denigrate, slander or disparage the Company or any of its products, services, employees, agents or contractors; or (ii) use Commerce Central or your Application for the purpose of intentionally diverting or soliciting or attempting to intentionally divert or solicit from the Company any business or customer. For the avoidance of doubt, the restriction in clause (ii) does not apply to general solicitations and general marketing that is not directly targeted to the Company customers.

10. Management of Commerce Central

(a) Developer Requested Removal

If you terminate your developer account in accordance with the procedures described on Commerce Central or in the TOU, or use the functionality in Commerce Central to request that the Company remove your Application from availability in Commerce Central, within a reasonable period of time (taking into consideration the time needed for Merchant’s to transition to a new provider) the Company will remove the affected Application(s) from Commerce Central and cease making the affected Application(s) available.

(b) Removal/Suspension

The Company reserves the right to remove or suspend any Developer Content from Commerce Central and terminate or suspend your Commerce Central developer account for any reason. Such reasons may include, without limitation, (i) your breach of this Developer Agreement or any other Terms (including any failure to pay any fees); (ii) your termination of your Commerce Central developer account or request to remove an Application from availability in Commerce Central as described above; (iii) an assertion or claim that your Developer Content infringes the intellectual property rights of a third party; (iv) complaint(s) about the content or quality of your Developer Content; (v) the Company believes that your Developer Content is causing or is likely to cause harm to systems, devices, networks, end users or otherwise; or (vi) the Company believes that it is or may become subject to any liability associated with your Developer Content.

(c) General Management of Commerce Central

Without limitation of the foregoing, the Company may otherwise manage Commerce Central in its sole discretion, without limitation or liability. The following is a list of exemplary activities that the Company may undertake (but is not obligated to undertake) as part of its management of Commerce Central:

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  1. monitor, test and review Applications;
  2. move Commerce Central and/or related Applications to a new domain or website;
  3. rate limit, throttle and/or block requests or access to Commerce Central or any of its features or functions;
  4. introduce, modify, replace and/or remove features, tools, interface screens, processes and/or authentication requirements offer by or utilized in the operation or support of Commerce Central (including, without limitation, implementation of a billing system which you may be required to use for the collection of Application Service Fee);
  5. collect statistics and other data regarding your Application (including installations); and
  6. otherwise manage Commerce Central in a manner designed to protect the rights and property of the Company and others and to facilitate the proper functioning of Commerce Central.

11. Publicity and Marketing

(a) Commerce Central App Designation

While your Application is available to Merchants via Commerce Central, (i) you may refer to yourself as “the developer of a Commerce Central App”, and (ii) your primary website may (a) claim that you are “the developer of a Commerce Central App”, and/or (b) refer to your Applications available to Merchants via Commerce Central as “listed on Commerce Central”; provided that, in connection with any use of claim (a) and/or claim (b), you include a notation, in reasonably close proximity thereto, stating “[Your] products and services are not affiliated with or endorsed by Yahoo Small Business”. Except as set forth in the preceding sentence, you may not make any claim in connection with the Company, other than to display the Commerce Central App logo as specifically permitted herein. The Company reserves any rights not expressly granted in this Developer Agreement and disclaims all implied licenses, including, but not limited to, implied licenses to trademarks and patents.

(b) Commerce Central App Logo

The Company may provide you with a Commerce Central App logo. The Commerce Central App logo may be used only on your primary website (i.e., a site branded with your name) or in promotional materials developed by you or by the Company (including collateral, signage, blogs, newsletters and any other marketing or promotional materials) all of which must be intended for recipients in the United States. The Commerce Central App logo may only be used in reference to an Application currently available to Merchants via Commerce Central. No trademark or logo of the Company or any of its affiliates, including the Commerce Central App logo, may be the most prominent element on a web page, and the Commerce Central App logo must be no larger than 80 percent as large as the your own logo on any shared placement. The Company reserves the right to alter the Commerce Central App logo at any time and at its sole discretion. You will update your website to update the Commerce Central App logo within five business days of receiving notice and artwork from the Company. You may not adapt, edit, tamper with or modify the Commerce Central App logo in any way, including without limitation re-sizing or reconfiguring the Commerce Central App logo. Any use of the Commerce Central App logo deviating from the uses set forth above must be in compliance with the Trademark Usage Guidelines that will be supplied to you from time to time by the Company. A copy of the current version of the Trademark Usage Guidelines for the Commerce Central App logo is set forth on Exhibit A below, which Exhibit is hereby incorporated by reference. You agree to immediately remove the Commerce Central App logo from your website and immediately cease referring to yourself as the developer of a Commerce Central App upon the termination or suspension of your developer account or if no Application of yours is being distributed via Commerce Central. You may not display any trademarks or logos, including, but not limited to, the Commerce Central App logo, in a manner that, in the Company’s sole discretion, may be interpreted as suggesting editorial content has been authored by, or represents the views or opinions of, the Company. The Company expressly reserves the right, but not the obligation, to refuse or revoke authorization as to any use whatsoever of the Commerce Central App logo and/or any other trademark or logo of the Company or any of its affiliates.

(c) Trademarks or Logos (other than Commerce Central App logo)

You may not use any other of the Company’s or its affiliates trademarks or logos on your website or otherwise (including, without limitation, in marketing materials) without the prior written approval of the Company, and all such uses shall be in compliance with Trademark Usage Guidelines provided to you from time to time by the Company. Use of any the Company’s trademarks or logos beyond the Commerce Central App logo must first be approved in writing by the Company as set forth in Exhibit A below. Notwithstanding anything to the contrary in this Developer Agreement, any use of the Company’s trademarks or logos other than in accordance with the Company’s express written authorization or this Developer Agreement is deemed to be a material breach of this Developer Agreement.

(d) Name(s)

You may not, on your website or otherwise, use the Company’s name, trademarks or logos in any manner that could cause users/consumers to believe that the Company is affiliated in any manner with you, your business or your products or services, other than in the manner expressly contemplated hereby (e.g., your website may not give the impression that your website or business is controlled or otherwise operated by the Company, either in whole or part). For the avoidance of doubt, no company name used by you, or part thereof, including, without limitation, any of your domain names, may infringe any of the Company’s intellectual property rights, including with respect to the Company’s trademarks. You may not use the Company’s name or any derivative thereof within any of your domain names, including at any level of any domain name (e.g., “ASBsolutions.com”). The parties acknowledge that any use in such manner of the Company’s trademarks by you prior to the date hereof has been under license from the Company.

(e) Promotion by the Company

The Company may from time to time, at its sole discretion, designate you as “the developer of a Commerce Central App”” or may refer to your Applications as “listed on Commerce Central”” on the Company properties and/or promote you as such in other materials, including, without limitation, though third party distribution channels.

(f) Resources

The Company may, at its sole discretion, provide sales collateral material and other value-added resources to assist you in marketing the Commerce Central services and/or your Applications made available to Merchants via Commerce Central. These materials may not be altered beyond the terms of use outlined when distributed.

12. Confidentiality

You will: (a) protect information made available by the Company that is identified as confidential or that reasonably should be considered confidential, including the terms of this Developer Agreement; (b) use this information only to fulfill your obligations under this Developer Agreement; and (c) either destroy or return such information to us promptly upon termination of your developer account or discontinuance of your use of Commerce Central.

13. Ownership, Reservation of Rights

The Company is the owner of numerous intellectual properties, including patents, trademarks, copyrights, and trade secrets. Except as otherwise explicitly set forth herein, nothing contained in this Developer Agreement shall be construed as conferring by implication, estoppel, or other legal theory, a license or right to any of the Company's intellectual property. Use of any of such Intellectual property (including use of any intellectual property in your Application) is therefore strictly unauthorized without the prior written consent by the Company.

14. Termination

You may terminate your developer account at any time by following the instructions provided on Commerce Central or in the TOS. You acknowledge and agree that all of the legal rights, obligations and liabilities that have accrued, that you and the Company have benefited from or been subject to, or which are expressed to continue indefinitely, along with any other provisions of this Developer Agreement and the Terms which by their nature should survive, shall be unaffected by and shall survive any such termination or discontinuance by you or the Company, including, without limitation, warranty disclaimers, indemnity and limitations of liability (but excluding, for the avoidance of doubt, your right to access or use developer features of Commerce Central or your use of any the Company trademarks or logos).

If you terminate your developer account or request that the Company remove your Application from Commerce Central, you agree that the Company may retain a copy of the affected/related Developer Content for archival purposes.

15. Disclaimer of Warranties

YOUR USE OF COMMERCE CENTRAL IS AT YOUR SOLE RISK. COMMERCE CENTRAL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY AND ITS SUPPLIERS, LICENSORS AND PARTNERS (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (B) DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF COMMERCE CENTRAL AND YOU RELY ON COMMERCE CENTRAL AT YOUR OWN RISK. ANY MATERIAL THAT YOU ACCESS OR OBTAIN THROUGH COMMERCE CENTRAL IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OR DOWNLOAD OF ANY MATERIAL THROUGH COMMERCE CENTRAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH OR FROM COMMERCE CENTRAL WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

16. Limitation of Liability

THE COMPANY AND ITS SUPPLIERS, LICENSORS AND PARTNERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF COMMERCE CENTRAL. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF THE COMPANY AND ITS AFFILIATES, SUPPLIERS, LICENSORS AND PARTNERS ARISING OUT OF OR RELATED TO YOUR USE OF COMMERCE CENTRAL (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) $100 AND (II) THE AMOUNTS, IF ANY, THAT YOU HAVE PAID TO THE COMPANY FOR YOUR USE OF COMMERCE CENTRAL. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

17. Indemnity

You will indemnify, hold harmless and, if requested by the Company, defend the Company and its suppliers, licensors, partners, officers, agents, employees, representatives and assigns harmless from any costs, damages, expenses, and liability arising out of or relating to your Developer Content, your use of Commerce Central, your violation of this Developer Agreement or any other Terms or you or your Developer Content’s infringement or other violation of any rights of any third party (including intellectual property rights).

18. Release and Waiver

To the maximum extent permitted by applicable law, you hereby release, and waive all claims against the Company and its affiliates and its and their suppliers, licensors, partners, officers, agents, employees, representatives and assigns, from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of Commerce Central. If you are a California resident, you waive your rights under California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.

19. No Third-Party Beneficiaries

You agree that, except as otherwise expressly provided in this Developer Agreement, there shall be no third-party beneficiaries to this agreement.

20. Notices

The Company may provide you with notices, including those regarding changes to this Developer Agreement, by email, regular mail, postings on Commerce Central or other reasonable means (including, subject to the TOS and Privacy Policy, SMS or text message) now known or hereafter developed. Such notices may not be received if you violate this Developer Agreement or other Terms by accessing Commerce Central in an unauthorized manner. Your agreement to this Developer Agreement constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed Commerce Central in an authorized manner.

21. General Information

(a) Entire Agreement

This Developer Agreement, together with the Terms, constitutes the entire agreement between you and the Company concerning the subject matter hereof, superseding any prior or other agreements pertaining to the subject matter of hereof.

(b) Choice of Law and Forum

You and the Company each agree that this Developer Agreement and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to this Developer Agreement, or the relationship between you and the Company, shall be brought exclusively in the courts located in the county of Santa Clara, California or the U.S. District Court for the Northern District of California. You and the Company agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California or the Northern District of California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. Notwithstanding the foregoing, the Company will have the right to seek injunctive relief to enforce the this Developer Agreement or to stop or prevent an infringement of proprietary or other third party rights in any court of competent jurisdiction.

(c) Waiver and Severability of Terms

The failure of the Company to exercise or enforce any right or provision of this Developer Agreement shall not constitute a waiver of such right or provision. If any provision of this Developer Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Developer Agreement remain in full force and effect.

(d) Non-Transferability

You agree that your developer account is non-transferable, that the rights granted to you under this Developer Agreement may not be assigned or transferred by you and that you are not permitted to delegate you responsibilities or obligations under this Developer Agreement without the prior written approval of the Company.

(e) Interpretation

The section titles in this Developer Agreement are for convenience only and have no legal or contractual effect. In the event of a conflict between a translated version of this Developer Agreement and the English language version, the English language version shall control.


EXHIBIT A

TRADEMARK USAGE GUIDELINES

FOR Commerce Central APP LOGO

{:style => 'text-decoration:underline'} Guidelines For Use of Commerce Central App logo (hereinafter the “Logo”)

  1. General. The Logo will be used only as explicitly licensed by the Company, and only under the terms and conditions and for the purposes described in the Agreement. To the extent they may differ with the general terms below, the specific terms of the Agreement govern all use of the Logo by you.
  2. Approval. All specific uses of the Logo must be approved in advance by the Company. You must send your request to ycc-dev-marketing@yahoo-inc.com. You must also include complete samples of each proposed use. The Company will typically review the request and respond within ten ten business days, but is under no obligation to respond. You may not use the Logo unless and until the Company has granted its specific approval and any and all conditions of such approval have been fulfilled by MSD.
  3. Appearance of Logos. You will ensure that the presentation of the Logo will be in compliance with Brand Guidelines for Partnerships (“Guidelines”). A copy of the most recent version of the Guidelines may be made available to you upon request. the Company may provide you with revised Guidelines, which upon delivery to you or posted within Commerce Central shall be deemed to be incorporated into the Developer Agreement and this Exhibit.
  4. Restrictions upon Use. The Logo will not be presented or used: (a) in a manner that suggests that editorial content has been authored by, or represents the views or opinions of, the Company or any its personnel or affiliate; (b) in a manner that is misleading, defamatory, libelous, obscene, infringing or otherwise objectionable; (c) in connection with any material that infringes the trademark, copyright or any other rights of any third party; (d) as part of a name of a product or service of a company other than the Company; (e) in a press release announcing the launch of an app or partnership with the Company; or (f) in a manner that infringes, derogates, dilutes, or impairs the rights of the Company in the Logo. The Company shall have complete discretion to evaluate your use and to decide whether that use violates any of the foregoing restrictions.
  5. Use for the Company's Benefit. Any use of the Logo shall inure to the benefit of the Company. By using the Logo pursuant to the Company’s approval, you expressly acknowledge that the Logo and the goodwill associated therewith are and remain the exclusive property of the Company and you warrant that you will not take any action which is inconsistent with the Company’s ownership. No right, title or interest in the Logo or the good will associated therewith is transferred to you other than right to use the Logo as described in the Developer Agreement. You further agree to take any actions reasonably requested by the Company, at the Company’s expense, including the execution of instruments that may be necessary or appropriate to assist the Company in protecting its rights in the Logo in any jurisdiction and perfecting those rights in the Company’s name. Under no circumstances will anything in this Exhibit be construed as granting by implication, estoppels or otherwise, any licenses or rights in the Logo not explicitly granted under the Developer Agreement.
  6. Nonexclusive Remedy. You will make any changes to your use of the Logo as is requested by the Company. This remedy is in addition to any other legal remedies to which the Company may be entitled in relation to your use of the Logo.
  7. Non-compliance. Any and all non-compliance with the Guidelines or this Exhibit will result in the Company’s right to revoke the license to use the Logo.

EXHIBIT B

DIRECT PAYMENT PLATFORM ADDENDUM

This Direct Payment Platform Addendum (this "Direct Payment Addendum") to the Commerce Central Developer Agreement governs the terms and conditions for your use of the Company's direct payment platform to process payments for your Application. If there is a conflict between the terms of this Direct Payment Addendum and the rest of this Agreement, the terms of this Direct Payment Addendum will control. Capitalized terms not defined in this Direct Payment Addendum shall have the meaning set forth above.

1. Authorization as Agent

(a) You hereby appoint the Company as your agent for the billing, payments and collections related to your Application in accordance with this Direct Payment Addendum. You hereby authorize and instruct the Company to issue invoices for Application Service Fees and to collect such amounts from Merchants, using a payment system the Company integrates into Commerce Central, where the Company will appear as the merchant of record on orders purchased by Merchants.

(b) You acknowledge and agree that you are the principal and that the Company is acting solely as your agent to process the payments from Merchants for the Application and the related services. You agree that you are solely responsible for any and all claims and liabilities involving or relating to the Application and related services, including with respect to any functions that the Company performs such as the hosting and the sale of the Applications and the related services, and the Company shall not liable to you for any amounts that it is unable to collect from Merchants.

(c) For purposes of this Direct Payment Addendum, the Company's appointment as your agent will survive any termination or suspension of your Commerce Central developer account or the termination of your use of Commerce Central to distribute the Application and continue until all amounts charged Merchants for the Application are collected.

3. Application Pricing and Transaction Activities

(a) You will be solely responsible for setting the price(s) associated with the installation, use and provision of the Application and related services.

(b) As your agent, the Company will be solely responsible for the collection of all Application Service Fees payable by Merchants, unless otherwise notified to you in writing by the Company.

(c) If the sale of your Application or its related services to any Merchant is subject to any sales, use, goods and services, value added, or other similar tax, under applicable law, responsibility for the collection and remittance of that tax for sales of the Applications to Merchants located in the United States will be borne by the Company under Direct Pay. In no event will the Company be liable for any income taxes imposed you or any other taxes or charges assessed against your or associated with the operation of your business.

4. Developer Remittance

(a) Upon collection of any Application Service Fees, the Company will deduct its Platform Fee and will remit to you the remaining amount of the Application Service Fee, in accordance with Company's standard business practices and the following:

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  1. Remittance payments are made by the Company's then current payment methods, which may change from time to time;
  2. You are subject to minimum monthly remittance amount thresholds of USD $500.00, subject to change at any time by the Company (for avoidance of doubt, your portion of the Application Service Fee shall roll forward to the subsequent month until such minimum monthly remittance amount in fees payable to you is met);
  3. Your must provide certain information related to your remittance and that information must be accurate at all times;
  4. Subject to the foregoing requirements, your remittance will be made no later than 60 days following the close of the calendar month in which the corresponding amount was received by the Company from the Merchant.

In determining the amount of the Platform Fee to deduct, the Company will take into account any properly evidenced Publisher Payments.

(b) If any remittance made by the Company to you is subject to any withholding or similar tax, the full amount of that withholding or similar tax will be solely for your account, and will not reduce the Platform Fee to which the Company is entitled on that transaction. If the Company reasonably believes that such tax is due, the Company may deduct the full amount of such withholding or similar tax from the gross amount you are owed, and may pay the full amount withheld over to the competent tax authorities. The Company will apply a reduced rate of withholding tax, if any, provided for in any applicable income tax treaty only if you furnish the Company with such documentation required under that income tax treaty or otherwise satisfactory to the Company, sufficient to establish your entitlement to the benefit of that reduced rate of withholding tax. Upon your timely request to the Company in writing, using means reasonably designated by the Company, the Company will use commercially practical efforts to report the amount of the Company’s payment of withholding or similar taxes to the competent tax authorities on your behalf. You will indemnify and hold the Company harmless against any claims by any competent tax authority for any underpayment of any such withholding or similar taxes, and any penalties and/or interest thereon, including, but not limited to, underpayments attributable to any erroneous claim or representation by you as to your entitlement to, or your disqualification for, the benefit of a reduced rate of withholding tax.

(c) You agree that no royalty or other compensation is payable for the rights described above in this Direct Payment Addendum.

5. Refunds and Chargebacks

If your Application fails to conform to your specifications or product warranty or the requirements of any applicable law, or a Merchant expresses other reasonable concerns regarding the Application or any other charges associated with your Application or services, including by charging back the price of the Application to the Company, you authorize the Company to refund to the Merchant up to the full amount of the price paid by the Merchant for the Application or any functionality or service within the Application, as applicable. You agree to reimburse, grant the Company a credit for, or allow the Company to offset against your future sales of Applications, an equivalent amount up to the price for that Application, or any functionality or service within the Application, as applicable, for any such refunds plus any associated fees related to such refunds (i.e. credit and debit card chargebacks, penalties and payment transaction fees), and for any other amounts due or owed to the Company.

6. Effect of Termination

The suspension or termination of your Commerce Central developer account or the termination of your use of Commerce Central to distribute the Application will not relieve you of any obligations to the Company under this Direct Payment Addendum, or any liability to the Company or any Merchants with respect to that Application. Upon such suspension or termination, the Company will still be entitled to: (a) all Platform Fees on all Applications purchased by Merchants prior to the date of suspension or termination, and (b) reimbursement from you of refunds of any Applications by the Company to Merchants, whether before or after the date of suspension or termination. In addition, upon such suspension or termination, you will be remitted any remaining Application Service Fee owed to you no later than 60 days following the close of the calendar quarter in which the suspension or termination occurred.

7. Payment Platform Termination

You acknowledge and agree that the Company may terminate the direct payment platform at any time and your participation in the direct payment platform is at your own risk. The Company makes no representations or warranties that the direct payment platform will be made generally available in the future.