This Developer Commercialization Agreement (“Agreement”) constitutes a legal agreement between you (“Developer” or “You”) and Ribbit Corporation (“Ribbit”), for the marketing, distribution, and sale for commercial purposes of the applications and services (“Applications”) created by Developer pursuant to the Software Development Kit License Agreement (“SDK Agreement”) previously entered into by Ribbit and Developer.

This Agreement incorporates and is supplemented by the terms of the SDK Agreement and the API Terms of Use as currently in effect. In the event of a conflict between the terms of this Agreement and the terms of the SDK Agreement or the API Terms of Use, this Agreement shall control. Copies of the SDK Agreement and the API Terms of Use as in effect on the Effective Date, can be viewed at http://developer.ribbit.com/legal/legal-information. The SDK Agreement and the API Terms of Use may be updated at any time without notice to Developer, and Developer agrees that it shall be bound by the current versions of those documents. The current versions of the SDK Agreement and API Terms of Use can be viewed at http://developer.ribbit.com/legal/legal-information.

Manifestation of Acceptance. Please read this Agreement carefully -- it forms a legally binding contract between You and Ribbit with respect to Your Use of the SDK. By clicking on the ACCEPT button or similar buttons or links designated by Ribbit and/or by downloading, installing, using or continuing to use the Ribbit website, Ribbit Services, Ribbit SDK and/or Ribbit APIs, You signify Your acceptance of this Agreement. This Agreement is effective as of the date you accept this Agreement (the “Effective Date”). You hereby agree to the use of electronic communication in order to enter into contracts, place orders, and create other records, and to the electronic delivery of notices, policies, and records of transactions initiated or completed through or in connection with this Agreement. Furthermore, to the extent permitted by law, You waive any rights or requirements under any applicable law which requires an original (non-electronic) signature or delivery or retention of non-electronic records. If You do not agree to the terms and conditions of this Agreement, do not click any buttons or links indicating acceptance of this Agreement and do not download, install, use, or continue to use the Ribbit Website, Ribbit Services, Ribbit SDK and/or Ribbit APIs.

This Agreement is effective as of the Effective Date and shall remain in effect until terminated by the parties pursuant to its terms.

1. Territory. Developer shall market and sell the Bundled Service only to End Users physically located and with a billing address in the United States of America (the “Territory”), unless otherwise agreed in writing by Ribbit.

2. Term and Termination

2.1 This Agreement is effective as of the Effective Date and shall continue until terminated in accordance with this Agreement. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and is not dismissed within 60 days). In addition, Ribbit may terminate this Agreement upon 30 days notice to Developer if, in Ribbit’s opinion, Developer is not able to deliver the Bundled Service in a manner that sufficiently supports End Users.

2.2 The initial term of this Agreement shall be 1 year from the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall continue until the Agreement is terminated in accordance with this Agreement or either party gives at least 60 days notice of termination.

2.3 Upon the expiration or termination of this Agreement, Developer shall (i) cease to be an authorized developer and have no right to use, market, or distribute the Ribbit Services; (ii) cease use of and destroy any and all copies of the Ribbit Services; (iii) return to Ribbit all materials provided to Developer pursuant to this Agreement or the SDK Agreement; and (iv) immediately pay Ribbit any amounts then due and outstanding pursuant to this Agreement. Developer shall be responsible for paying all recurring and usage-based charges incurred by Developer or its End Users during the then-current Term and shall not be entitled to a credit or refund for any such charges previously paid to Ribbit. Ribbit shall have no liability of any type to Developer or any End User arising from termination of this Agreement. Following termination of this Agreement, in no event may any End User’s subscription to the Bundled Service (“Subscription”) or right to use the Ribbit Services be continued without the prior written consent of Ribbit.

3. Bundled Service. The Application incorporates the following Ribbit Services: Ribbit Messaging, Ribbit Reach, Ribbit Phone. Developer shall market and sell the Ribbit Services only in connection with sales by Developer of the Application (the “Bundled Service”). Developer shall have no right to market or sell the Ribbit Services separate from the Bundled Service, provided that Developer may sell the Ribbit Services as a la carte add-on services to the Application if such application is separately marketed and sold by Developer.

4. Branding. The Bundled Service may be marketed and sold only using those Ribbit trademarks, service marks, trade names, or logos provided by Ribbit and subject to Ribbit’s approval on use. No Ribbit marks may be removed from any materials provided by Ribbit to Developer.

5. Relationship with End Users

5.1 “End User” means an individual or business that purchases the Bundled Service from You. An End User that is a business may order multiple Subscriptions for individuals.

5.2 End User Agreements. Developer shall enter into a legally binding End User Agreement with each End User. “End User Agreement” means a written agreement between Developer and each End User that (i) contains terms at least as protective of Ribbit and the Ribbit Services as contained in the current version of Ribbit’s Terms of Service and End User License Agreement, a current version of which is found at http://developer.ribbit.com/legal/eula/ (ii) prohibits End Users from using the Ribbit Service functionality other than as part of the Bundled Service (for example, creating internal use applications); and (iii) that identifies Ribbit as a third-party beneficiary of such End User Agreement. Further, such End User Agreement shall provide that the End User is responsible for all actions taken by all users of Subscriptions ordered by that End User and that a breach by any user of a Subscription is a breach by the End User. Developer agrees to fully enforce the terms of End User Agreements and to immediately notify Ribbit of any known or suspected breach of an End User Agreement or other unauthorized use of the Ribbit Services in the Territory. Developer may not, in End User Agreements or otherwise, purport to bind or make any representations on behalf of Ribbit in any way. End User Agreements shall clearly state that End Users are contracting with Developer and not contracting with Ribbit and End Users shall have no rights or remedies against Ribbit whatsoever. Developer will defend, indemnify and hold harmless Ribbit, Ribbit’s affiliates and its and their directors, employees and agents from and against any claim, loss, cost, liability or damage, including attorneys’ fees arising from or relating to (a) any breach or violation by Developer of any term of this Agreement or an End User Agreement, or applicable law, regulation or third-party rights, (b) the issuance by Developer of any warranty or representation not authorized in writing by Ribbit or (c) any other act or omission of Developer in connection with an End User Agreement or the marketing, sale, distribution or provision of the Bundled Services. This Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Developer and Ribbit and Developer shall not represent to the contrary, whether expressly or by implication. This Agreement is not for the benefit of End-Users or any other third parties.

5.3 End User Pricing. Developer shall independently determine the price at which it offers the Bundled Service and any other services to End Users. Developer shall not show the Ribbit Services as a separate line-item on quotations, prices lists, invoices or any other documentation or otherwise disclose to End Users the amount that Developer pays for the Ribbit Services, including if Developer sells the Ribbit Services to End Users as a la carte add-on services.

5.4 Billing and Collections from End Users. Developer is solely responsible for billing End Users and collecting all amounts due as between Developer and the End User. Developer’s obligation to pay Ribbit arises at the time Developer orders Ribbit Services from Ribbit, and Developer is obligated to make payment to Ribbit regardless of whether Developer is paid by the End User.

5.5 Representations. Developer shall not make any representations, guarantees or warranties of any type to End Users or others with respect to the specifications, features, capabilities or otherwise concerning the Ribbit Services which are in addition to or inconsistent with those set forth in the product descriptions or promotional materials delivered by Ribbit to Developer or otherwise made by Ribbit. In no event shall Developer make any representation, warranty or guarantee by or on behalf of Ribbit. Developer shall represent Ribbit and its products and services in a positive and professional manner at all times.

5.6 Business Practices. Developer agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Ribbit or its products or services, and agrees to comply with all applicable federal, state and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) in connection with its performance under this Agreement and in any End User Agreement. Developer further agrees to notify Ribbit in advance if Developer intends to sell, represent or promote any products competitive with the Ribbit Service, or include any functionality with any of its products which is or may be competitive with the Ribbit Services.

6. Charge, Billing, and Payment

6.1 Charges and Invoices . Developer shall purchase the Ribbit Service at the prices set forth in the Ribbit rate card, the current version of which is available at rate card http://developer.ribbit.com/ribbit-platform/pricing. Developer agrees that the rates for Ribbit’s services may change at any time without notice and that Developer shall be responsible for paying the then-applicable charges. Developer shall pay for all recurring Ribbit Services at the commencement of a Term using a credit or debit card issued by a U.S. bank or other bank as may be acceptable to Ribbit in its sole discretion. Ribbit may change the types of cards accepted at any time. Charges for usage-based services (including, but not limited to, minutes-based telephony, transcription services, short messaging service, and API transactions) shall be charged to Developer’s credit or debit card at the time of use. Ribbit may, at its sole discretion, elect to send Developer monthly invoices for recurring and usage-based charges, which invoices shall be payable in full within 30 days after date of invoice. Ribbit may, at its sole discretion, establish a credit limit for Developer for recurring and usage-based charges. In the event Developer exceeds such credit limit, Ribbit may, at its sole discretion, require immediate payment of an amount necessary to reduce Developer’s payment obligation below such credit limit or suspend service to Developer pursuant to this section 6.

6.2 Other Charges. In addition to the amounts set forth at http://developer.ribbit.com/ribbit-platform/pricing, Developer shall be responsible for the payment of all taxes, withholdings, duties, expenses and levies arising from the order (excluding taxes based on the net income of Ribbit). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Non-payment by End Users shall not relieve Developer of its obligation to pay Ribbit.

6.3 Suspension of Services by Ribbit. Ribbit may, at its sole discretion, suspend the provision of the Ribbit Services to Developer if, during a Term, the amount owed to Ribbit by Developer for the purchase of Ribbit Services exceeds the amount prepaid by Developer to Ribbit for that Term. It shall be the responsibility of Developer to ensure that it retains a positive account balance and Ribbit shall have no obligation to advise Developer that its account balance is negative prior to suspending service. Developer may authorize Ribbit to automatically increase the balance in Developer’s account if Developer’s balance falls below a threshold amount to be agreed by Ribbit and Developer by charging Developer’s credit or debit card by utilizing the “auto-recharge” function available on the Website at http://developer.ribbit.com/platform/billing_autorecharge, in which case Developer authorizes Ribbit to charge Developer’s credit or debit card the agreed-upon amount. If Developer’s account balance becomes negative, Ribbit may immediately suspend all usage-based services provided to Developer. If, at the end of the applicable Term, Developer’s account balance remains negative, Ribbit may suspend all Ribbit Services provided to Developer. If Developer pays pursuant to invoice, Ribbit may suspend services to Developer if Developer fails to pay an invoice within 30 days of submission by Ribbit. In all cases, Ribbit may, at its discretion, reinstate services provided that Developer pays all amounts due and owing to Ribbit and establishes a positive account balance or terminate this Agreement. In addition to the foregoing, Ribbit shall have the right to suspend performance under this Agreement during any period in which Developer is not in compliance with any term of this Agreement.

7. Technical Support. Developer will be solely responsible for providing technical support to End Users for the Bundled Service, including the following:

· Responding promptly - within two (2) business days at the latest - to all telephone, website and email inquiries from End Users regarding use of the Bundled Service (including the Ribbit Service as available through the Bundled Service);

· Providing technical assistance with:

o creation and maintenance of End User and Subscription accounts, security administration, etc.;

o troubleshooting setup, configuration, user administration, usage questions, error messages, etc.; and use of standard application functionality; and

o using commercially reasonable efforts to resolve all inquiries and perform all support activities in a prompt and professional manner.

· If Developer cannot promptly and adequately resolve a technical support issue for an End User that relates to the use or operation of the Ribbit Services, Developer may escalate the case to Ribbit’s support organization. This escalation will occur by the designated technical support representative of Developer contacting Ribbit’s technical support line. Developer shall not refer any End User directly to Ribbit. If Ribbit deems it appropriate to contact an End User, Ribbit may do so in conjunction with Developer, but Developer shall remain the primary contact for the resolution of the issue.

8. Developer Obligations

8.1 Records and Audit. Developer agrees to maintain complete, clear and accurate records of all orders, customers and transactions completed with respect to this Agreement, including copies of all signed End User Agreements. Upon 15 days written notice, Developer shall permit Ribbit or its representative to review such records and any other books and records of Developer which relate to Developer’s performance under the Agreement to ensure Developer’s compliance with its obligations to Ribbit. Any audit will be conducted during normal business hours and in a manner designed to cause minimal effect on Developer’s ordinary business activities. Developer shall maintain all records required under this Agreement for at least three years following expiration or termination of the Agreement.

8.2 Management Reviews. Developer agrees to participate in quarterly reviews with Ribbit management to discuss issues including: account reviews, lead status, forecast, market plan and other relevant business issues. Further, Developer agrees to annual contract review 30 days prior to the anniversary of the Effective Date.

9. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical, financial and other proprietary information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Ribbit Services, technical information and other code or data of any type provided by Ribbit (or its agents) shall be deemed trade secret and Confidential Information of Ribbit without any marking or further designation. The terms and conditions of this Agreement are Confidential Information of Ribbit. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information except to affiliates or advisors who are under an obligation of confidentiality equivalent to this Section 9 and have a need to know such Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm to the Disclosing Party that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

10. Warranty Disclaimer

THE RIBBIT SERVICE AND ALL software is PROVIDED “AS IS”. NEITHER RIBBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF Title, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. END USERS MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

11. Limitation of Liability

11.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

11.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, RIBBIT’S (AND ITS THIRD-PARTY SUPPLIERS’) ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY DEVELOPER TO RIBBIT UNDER THIS AGREEMENT.

11.3 The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. Indemnification

12.1 By Ribbit. Ribbit shall indemnify and hold harmless Developer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark which is asserted against Developer by a third party based upon Developer’s distribution of the Ribbit Services as part of the Bundled Service and in accordance with the terms of this Agreement, provided that Ribbit shall have received from Developer: (i) prompt notice of such claim (but in any event notice in sufficient time for Ribbit to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Developer. If Developer’s use or distribution of any of the Ribbit Services is, or in Ribbit’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Ribbit may, in its sole discretion: (a) substitute for the Ribbit Services substantially functionally similar programs and documentation; (b) procure for Developer the right to continue distributing the Ribbit Services; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement. The foregoing indemnification obligation of Ribbit shall not apply: (1) if the Ribbit Services are modified by any party other than Ribbit other than by Developer in accordance with the SDK Agreement, but solely to the extent the alleged infringement is caused by such modification; (2) if the Ribbit Services are combined with other non-Ribbit products or process other than the Application, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Ribbit Services; (4) to any release of the Ribbit Services other than a supported release; or (5) to any third-party code contained within the Ribbit Services. THIS SECTION 12 SETS FORTH RIBBIT’S SOLE LIABILITY AND DEVELOPER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

12.2 By Developer. Developer shall indemnify and hold harmless Ribbit, Ribbit’s affiliates and its and their directors, employees and agents from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark which is asserted against Ribbit by a third party based upon Developer’s distribution of the Bundled Service (other than with respect to claims relating solely to the Ribbit Services) in accordance with the terms of this Agreement, provided that Developer shall have received from Ribbit: (i) prompt notice of such claim (but in any event notice in sufficient time for Developer to respond without prejudice); (ii) the right to control and direct the investigation, defense, or settlement of such claim, provided that Developer shall consult with Ribbit on such defense, Ribbit shall have the right to participate in such defense with counsel of its choosing at its own cost and Developer shall not enter into any settlement that prejudices Ribbit without the consent of Ribbit; and (iii) all reasonable necessary cooperation of Ribbit. THIS SECTION 12.2 SETS FORTH DEVELOPER’S SOLE LIABILITY AND RIBBIT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

13. Survival. Sections 5, 6, 8, 9, 10, 11, and 12, shall survive the termination or expiration of this Agreement.

This Agreement includes the SDK Agreement and API Terms of Use, and any schedule or exhibit attached thereto. This Agreement, including the SDK Agreement and API Terms of Use , embodies the entire understanding and agreement between Developer and Ribbit respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between Developer and Ribbit. Developer acknowledges that it has read, understood, and agreed to all of the terms of this Agreement.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON OR ANY SIMILAR BUTTON OR BUTTONS AND/OR DOWNLOADING, INSTALLING, USING AND/OR CONTINUING TO USE THE RIBBIT WEBSITE, RIBBIT SERVICES, RIBBIT SDK AND/OR RIBBIT APIS, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENTAND GRANT

TO RIBBIT THE RIGHTS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH EACH AND EVERY TERM HEREIN, PLEASE DO NOT CLICK ON ANY SUCH BUTTON OR BUTTONS OR DOWNLOAD, INSTALL OR USE THE RIBBIT WEBSITE, RIBBIT SERVICES, RIBBIT SDK AND/OR RIBBIT APIS.

Last Updated ( Thursday, 02 April 2009 00:09 )