Code ISV Program Terms

Welcome to the CodeAlliance ISV Program (the “ISV Program”). Code makes certain sales, marketing and technical support available to members of the ISV Program (“Members”) to assist Members in their marketing, sales, and support of Code’s products (“Products”). These CodeAlliance ISV Program Terms form a binding agreement (the “Agreement”) between The Code Corporation (“Code”) and the software developer identified in the online enrollment form (“Developer”).

Code and Developer hereby agree as follows:

1) Marketing Listing on Code’s IVR Website

a) A Member that develops custom software, including JavaScript, iOS Apps, and/or Android Apps for its customer’s use on Code products (a “Customer Software Developer”) shall be eligible for a company listing on the Custom Software Developer page of Code’s ISV website.

b) A member that develops software, including JavaScript, iOS Apps and/or Android Apps that it makes generally available for use on Code products (a “Generally Availability Software Developer”) shall be eligible for a listing on the Software Developer page of Code’s ISV website which includes:

i) iOS Apps and Android Apps developed for Code products which are available on the Apple® App Store or Google Play.

ii) Other Software which the Member as certified for operation on any Code product.

Code does not control Apple’s requirements for making the Member’s App available on the App Store or Google’s requirements for making the Member’s App available on Google Play.

c) Code’s marketing department will work with the Member to develop Member’s listing. To the extent any of the Member’s trademarks or logos are used in the listing, Code shall have a royalty free license to use the trademarks and logos solely for the marketing listing and Code’s support thereof.

2) Demo Product

CodeAlliance ISV Program Members approved by Code are eligible to receive one (1) Code product at no charge (the “Demo Product”). The SKU for the Demo Product will be mutually agreed to between Code and Member. The product will be shipped by Code under Code’s standard shipping and warranty terms, provided however, Code will pay the shipping costs.

3) Certification

Member will use best efforts to:

a) If Member’s first product for use on Code Products is an iOS or Android App, achieve certification of, and availability of, the App on the Apple App Store or Google Play prior to the Certification Date; or

b) If Member’s first product is software other than an iOS or Android App, certify Code’s product for use with Member’s software product and prominently list on Member’s web page that Code’s product is certified for operation with Member’s software product prior the Certification Date.

c) “Certification Date” means the expected certification date for Member’s first software product on Code product as identified by Developer in the online enrollment form, or as otherwise agreed to by Code and member.

4) Code Trademarks, Member Responsibilities.

a) Code may provide Code’s trademarks and logo designs (collectively the “Marks”) for use by Member in marketing its software certified for Code products and/or certified Apps (“Certified Member Products”).

b) Member will conduct its business at all times in a manner that will reflect favorably on the good name and reputation of Code and Code’s Products. Specifically, Member agrees to: (i) make no false or misleading statements with respect to Code or the Code Products; (ii) engage in no illegal, deceptive, misleading, unethical, or improper acts or practices in performing under this Agreement; and (iii) use Code’s Marks only in conjunction the certified Member Products, and only in strict adherence to any guidelines and restrictions provided by Code.

c) Member will at all times comply with this agreement, applicable federal and state laws, and reasonable written guidelines provided by Code in its use of all Marks (including Source Files) and Code Confidential Information (“Code Materials”). Except for the limited licenses granted herein, the Member has no right, title or interest in or to any of the Code Materials and, except as specifically permitted by this Agreement, the Member shall not modify or create any derivative works of any Code Materials. All use of Code Materials inures to the benefit of Code. Member shall make no contrary representations and will not in any way contest Code’s rights to the Code Materials. Member will notify Code of any infringement of which Member has actual knowledge. Member shall discontinue use of all Code Materials upon termination of this Agreement. Member shall at no time register any trade names or trademarks or any mark or name confusingly similar to the Code Trademarks.

d) Except as specifically permitted in this Agreement or in writing by Code, Member hereby represents, warrants and agrees that it will not (nor will Member permit any third party to): i) make any representations or express any warranties on behalf of Code; ii) copy or manufacture any Products; iii) sell, license, sublicense, distribute, assign or transfer any rights granted to Member hereunder; iv) translate, modify, adapt, enhance, extend, decompile, disassemble or reverse engineer any of the Products; or v) use any Products or Code Materials to: a) specify, design, develop, build, market, or sell any similar or competitive product or materials; or b) preform, develop, or prepare any benchmarking tests, studies, or other comparative analysis between Code Products or Code Materials and products or materials of any other person or entity offering similar or competitive products or materials.

5) Amendment

Code may amend this Agreement from time to time at Code’s discretion by providing written notice to Member specifying the amendment(s) at least thirty (30) days prior to the effective date of such amendment(s). During the period of time between when Code provides written notice of the amendment to Member and the effective date of the amendment, Member may elect to terminate the Agreement by providing written notice to Code within such thirty (30) day period and such termination will be effective twenty (20) days after such notice of termination is provided to Code. The terms and conditions of the Agreement, prior to the effective date of the amendment(s) will continue to apply, un-amended, through such termination.

6) Warranties

Each party warrants to the other:

a) It is correctly incorporated or otherwise established in the territory of its incorporation, is not subject to any insolvency or analogous event and is qualified to carry on its business.

b) It has secured all permits, licenses, regulatory approvals, registrations and consents required to conduct its business including, without limitation, registration with the appropriate taxing authorities for remittance of taxes.

c) Its execution, delivery and performance of this Agreement: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject, and (iii) are not subject to the consent or approval of any third party.

d) This Agreement is the valid and binding obligation of that party, enforceable against such party in accordance with its terms.

e) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, CODE MAKES NO WARRANTY OR REPRESENTATION REGARDING THE CODEALLIANCE ISV PROGRAM, CODE MATERIALS OR ANY CODE PRODUCTS. CODE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY AND FITNESS FOR A PARTICULAR PURPOSE).

f) Neither party will have any liability for punitive or exemplary damages including, without limitation, lost profits, even if the party alleged to be liable has knowledge of the possibility of such damages; each party’s maximum liability under this agreement will be only for actual direct damages up to $10,000 USD in the aggregate; provided, however, that the limitations set forth in this Section shall not apply to or in any way limit a party’s obligations or for losses arising as a result of a party’s indemnity obligations, gross negligence, willful misconduct, fraud, or unauthorized use of Code Materials.

7) Confidentiality.

a) The term “Confidential Information” shall mean all data, trade secrets, business information and other information of any kind whatsoever that a party (“Discloser”) discloses to the other party (“Recipient”) or to which Recipient obtains access, excluding any information that (i) Recipient rightfully has in its possession when disclosed to it, free of obligation to Discloser to maintain its confidentiality; (ii) Recipient independently develops without access to Discloser’s Confidential Information; (iii) is or becomes known to the public other than by breach of this Section or (iv) is rightfully received by Recipient from a third party without the obligation of confidentiality.

b) Recipient shall not use or disclose Confidential Information of the other party for any purpose other than to carry out its obligations under this Agreement. Recipient shall treat Confidential Information of the other party with no less care than it employs for its own Confidential Information of a similar nature that it does not wish to disclose, publish or disseminate, but not less than a reasonable level of care.

c) To the extent legally permitted, Recipient shall notify Discloser of any actual or threatened requirement of law to disclose Confidential Information promptly upon receiving actual knowledge thereof and shall cooperate with Discloser's reasonable, lawful efforts to resist, limit or delay disclosure.

8) Term and Termination

a) The term of this Agreement commences upon Code’s acceptance of Developer as a Member of the CodeAlliance ISV Program and continues until terminated by either party for convenience upon thirty (30) days prior written notice to the other party or, in the event of any material breach by any party, the non‑breaching party may terminate this Agreement if such breach remains uncured ten (10) days after the breaching Party's receipt of written notice from a non‑breaching party or immediately if such breach is of an incurable nature. Each party’s rights and obligations related to warranties, indemnities, confidentiality and misuse of intellectual property, liability and limitations on liability, and matters related to administering this Agreement and disputes related to this Agreement shall survive its termination.

9) Dispute Resolution

a) The procedure set out in this section will be adhered to in all disputes that the parties cannot resolve informally. The aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. The relationship managers shall meet (in person or by telephone) within thirty (30) days after the date of the written notification to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The relationship managers shall produce a report about the nature of the dispute in detail to their respective senior management. If the relationship managers do not meet or are unable to agree on corrective action, the senior management of each party shall meet or otherwise act to facilitate an agreement within forty-five (45) days after the date of the written notification.

b) If senior management do not meet or cannot resolve the dispute or agree upon a written plan of corrective action to do so within thirty (30) days after their initial meeting or other action, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either party may request arbitration as provided for in Section 9(c).

c) Any controversy or claim, other than a dispute relating to infringement of Intellectual Property Rights or the Section entitled “Confidentiality and Information Protection, between the parties not resolved through the preceding provisions, shall at the request of a party be determined by arbitration. The arbitration shall be conducted by one independent arbitrator who shall be a retired judge or attorney practicing in the area of information technology law. The arbitration shall be held in Salt Lake City, Utah in accordance with the United States Arbitration Act and under the auspices and the Commercial Arbitration Rules of the American Arbitration Association. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration.

10) Miscellaneous

a) Neither party may assign, transfer or otherwise dispose of this Agreement in whole or in part, or any of its rights or obligations hereunder, without the prior written consent of the other; provided, however, that no such consent shall be required in connection with the assignment of this Agreement to an affiliate of Code in conjunction with the assignment or sale of all or substantially all of the assets of Code to which this Agreement pertains.

b) The parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the parties under this Agreement shall be deemed to create an agency, employment or joint venture relationship between the parties or any of their affiliates for any purpose. Each party will bear its own costs associated with its performance under this Agreement. Code shall have no responsibility for any costs or expenses incurred by Member in in association with sales activities related to Code Products and its performance under this Agreement.

c) No delay, failure or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement. Unless otherwise specified in this Agreement the rights of each party under this Agreement may be waived only in writing.

d) All notices or other communications required under this Agreement shall be given to the parties in writing to: (i) if to Code, at The Code Corporation, 12393 South Gateway Park Place, Suite 600, Draper, UT 84020, Attn: President; or (ii) if to Member, at the Member’s address in Code’s CodeAlliance ISV Program records or, in each case to such other addresses as the parties may substitute by written notice given in the manner prescribed in this section.

e) This Agreement is the final, full and exclusive expression of the agreement of the parties and supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either party with respect to the CodeAlliance ISV Program. This Agreement does not affect each party’s rights and obligations under any non-disclosure agreement or reseller agreement in effect between the parties. Notwithstanding the general rules of construction, both Member and Code acknowledge that both parties were given an equal opportunity to negotiate the terms and conditions contained in this Agreement and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement. Except for Code’s right to amend this Agreement as specified in Section 5, no amendments of any provision of this Agreement shall be valid unless agreed in writing signed by an authorized officer of each party specifically referencing this Agreement.

f) This Agreement shall be governed by the laws, of Delaware without regard to its conflict of laws provisions. Each party hereby submits to the exclusive jurisdiction of the courts of such state, and waives any objection to venue with respect to actions brought in such courts.