ToolSpring Publisher Agreement

This ToolSpring Publisher Agreement (this “Agreement”) is a binding agreement between ToolSpring Pty Ltd (ABN TODO) (“ToolSpring”, “we” or “us”) and the individual or entity registering as a Publisher in ToolSpring (“Publisher” or “you”). If you are an individual using ToolSpring on behalf of your company, organization or other entity (for example, as an employee), then “you” means your entity and you are binding your entity to this Agreement.

Under this Agreement, you appoint and authorize ToolSpring, as your commercial agent, to promote, sell, test and distribute Tools (as defined below) on the terms and conditions of this Agreement, and ToolSpring accepts such appointment. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. ToolSpring is not intended for and may not be used by anyone under the age of 16.

This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on ToolSpring or (ii) by submitting any Tool to ToolSpring.

ToolSpring may modify this Agreement from time to time, subject to the terms in Section 18 (Agreement Changes) below.

1. Introduction to ToolSpring

ToolSpring is a forum for connecting Publishers who make tools for ToolSpring Developer and DevOps platforms with potential end users. As a Publisher, you may charge a fee for your Tools that end users may order through ToolSpring’s ordering system. You may also offer your Tools free of charge under certain circumstances.

2. Key Definitions

2.1. “ToolSpring” means http://www.toolspring.com or any other webpage, application, interface, service or in-product experience at which ToolSpring makes available or lists Tools and any other location that allows for the discovery, download or purchase.

2.2 “ToolSpring Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by ToolSpring. Nothing contained herein shall grant you any ownership right in the ToolSpring Marks or any other ToolSpring intellectual property.

2.3. “ToolSpring Platforms” means the Developer or DevOps products for which ToolSpring supports Tool listings. 

2.4. “End User Data” means any data, content or information of an end user that is accessed, collected or otherwise processed by you or your Tool in connection with use of ToolSpring. 

2.5. “End User Privacy Policy” means a legally adequate privacy policy provided to each end user from whom you or your Tool collects, accesses, or otherwise processes End User Data.

2.6. “End User Terms” means a legally adequate agreement governing end user use of your Tools.

2.7. “Tools” or “Tools” means cloud and downloadable applications, plug-ins or extensions that are designed to interoperate with one or more ToolSpring Platforms and that you deliver to ToolSpring or make available through the marketplace, as further described in Section 3.1 (Types of Tools). “Tools” also include any New Versions of existing Tools.

2.8. “ToolSpring Discount Programs” means the current marketplace discounts listed at our ToolSpring Discount Programs on the Publisher Dashboard. Updates to ToolSpring Discount Programs may be communicated to you from time to time via email, the Publisher Dashboard or the Toolspring Guidelines.

2.9. “ToolSpring Guidelines” means the terms, rules and policies that ToolSpring makes available at http://www.toolspring.com and other ToolSpring web properties describing the marketplace, which set forth certain requirements (as may be modified by ToolSpring from time to time) for including your Tools in ToolSpring. 

2.10. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Tools.

2.11. “Publisher Dashboard” means the online platform made accessible to ToolSpring Publishers by ToolSpring on which ToolSpring from time to time will communicate program details and changes, and provide sales tools and services, to ToolSpring Publishers.  The URL of the portal is: https://todo (as amended from time to time by ToolSpring).  

2.12. “Revenue Share” means the revenue based on the ToolSpring Publisher’s Sale as displayed at the applicable Revenue Share page on the Publisher Dashboard at the time of the Sale in accordance with Section 4.2 (Revenue Share) below.

2.13. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your Tool or (c) issue involving your Tool that materially degrades ToolSpring systems or networks.

2.14. “Similar Service” means any online distribution service or channel (other than ToolSpring) that makes such Tools available for sale, use or download to end users and/or channel Publishers, including any website or other distribution method operated by you.

3. Using the marketplace to Publish Your Tools

3.1. Types of Tools. From Currently, ToolSpring allows you to offer the following types of listings for Tools. You designate your listing type using your vendor account on ToolSpring (subject to approval by ToolSpring), based on the options below:

"Software Tools"	Tools that include a downloadable portion and are designed to run in end user instances of ToolSpring platforms, such as Jenkins, etc. Note Software Tools include a Support portion.
"Support-only Tools"	Tools that contain no downloadable portion, but only a Support offering. For example, a Support offering for an Open Source Jenkins plugin would qualify as a Support-only Tool.

Listing Options: Free and Paid
"Free Tools"	Tools that you provide free of charge, which may be downloaded from ToolSpring or from your external website, in all cases under circumstances specified by ToolSpring. Free Tools may only be Software Tools.
"Paid Tools"	Tools for which end users pay all fees to ToolSpring (with marketplace Publisher receiving a Revenue Share as described in this Agreement, and ToolSpring receiving the Revenue Share from end users as marketplace Publisher’s commercial agent.) Paid Tools may be either Software Tools or Support-only Tools. You must use ToolSpring’s licensing mechanisms for all Paid Tools. For Paid Tools that are Software Tools, end users will receive license keys from ToolSpring.

4. Financial Terms

This Section 4 (Financial Terms) shall only apply to Paid Tools.

4.1. List Price.

(a) Generally. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Paid Tools (the “List Prices”).

(b) Similar Services. Subject to Section 4.9 (Sales through ToolSpring), you agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Paid Tool (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid Tool available for sale through any Similar Service. You will update the List Price for each Paid Tool as necessary to ensure that it meets the requirements of this Section 4.1(b).

4.2. Revenue Share. Subject to this Agreement, for each Sale, except as otherwise expressly agreed by ToolSpring in writing, ToolSpring will pay you the applicable Revenue Share for the Sale. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which ToolSpring has received final payment from or on behalf of an end user. If a Tool is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. The current Revenue Share pages are available at https://todo and may be amended from time to time by ToolSpring. Any changes or updates to the Revenue Share will be effective 30 days after notice.

4.3. Currency Conversion. Unless otherwise specified in the marketplace Guidelines, you will designate your List Price in United States Dollars (USD) and ToolSpring will make all Revenue Share payments to you in USD. In certain non-United States countries, ToolSpring may, in its discretion, list your Tools and make Sales to end users in currencies other than USD. In this case, your USD denominated Revenue Share payment may fluctuate, and ToolSpring will make the applicable currency conversions for your Revenue Share payment in accordance with documentation on the ToolSpring website and communications to you.

4.4. Payment by ToolSpring. Subject to the terms of this Agreement (including the remainder of this Section 4), thirty (30) days after the applicable Sale is made, ToolSpring will make the Revenue Share due to you available and provide you with a report that gives further information about your Sales of your Paid Tools. You agree to provide ToolSpring with information on a supported payment method in your name, and ToolSpring will make payments via that payment method on request. You agree that any fees charged by your nominated payment method in connection with payments pursuant to this Section 4.4 are solely your responsibility.

4.5. Refunds; Withholding of Revenue Share. ToolSpring may issue refunds of the applicable Sale amount (or portions thereof) to end users or ToolSpring Publishers in its sole discretion. If ToolSpring issues a refund prior to paying you the Revenue Share for the applicable Sale, then you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded. In addition, if ToolSpring pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), ToolSpring may offset the amount of the Revenue Share that ToolSpring previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to ToolSpring. ToolSpring may also withhold and offset sums you owe to ToolSpring against amounts that are payable to you. When this Agreement terminates, ToolSpring may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure ToolSpring’s ability to offset any end user refunds or make any other offsets to which ToolSpring is entitled.

4.6. Use of Certain Information. ToolSpring shall only use your payment information for purposes related to this Section 4 (Financial Terms). ToolSpring shall not disclose your sales and related financial data to third parties except agents and contractors acting on ToolSpring’s behalf and except as required by Laws. The foregoing sentence notwithstanding, ToolSpring may use or disclose aggregated sales and other financial data related to ToolSpring, which may include your sales and related financial data but does not identify you or your data specifically.

4.7. Taxes. Except as described in this Agreement (including Section 4.8 for GST Registered marketplace Publishers), ToolSpring is responsible for collecting and remitting any taxes imposed on sales of Paid Tools to end users. You are responsible for any income or other taxes due and payable resulting from ToolSpring’s payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. ToolSpring maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from ToolSpring, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you. For marketplace Publishers in Australia, if you do not provide ToolSpring with your ABN number, then ToolSpring has the right to withhold the top applicable tax rate from its Revenue Share payments to you.

4.8. ToolSpring Publishers Required to Register Under Australian GST Rules. Notwithstanding any conflicting terms above in this Section 4, if you are a ToolSpring Publisher that is registered or required to be registered under the Standard Australian Goods and Services Tax registration (“GST”) (“GST Registered marketplace Publisher”), prior to ToolSpring’s payment to you, you acknowledge that you are required to issue a tax invoice to ToolSpring to comply with Australian GST rules. However, in the interests of administrative simplicity, you and ToolSpring agree that ToolSpring will issue recipient created tax invoices (“RCTIs”) for taxable supplies made under this Agreement (together with the report and payment described in Section 4.4) and that you will not issue tax invoices for those supplies. For the purposes of issuing RCTIs, both parties acknowledge that they are Standard GST Registered Vendors and will notify each other if that ceases to be the case. Notwithstanding this Section 4.8 with respect to RCTIs, you acknowledge that you remain responsible for filing a GST return and passing any GST received (including GST received from ToolSpring in connection with the RCTIs) onto the Australian Tax Office in accordance with your individual circumstances.

5. Your Content; License to ToolSpring; End User Licensing

5.1. Delivery

(a) Tools and Product Information. You will deliver Tools to ToolSpring on or prior to the initial availability date you designate for the Tool (the “Initial Availability Date”). Together with delivery of each Tool, you will also provide the following information and materials: (a) Tool title, Initial Availability Date, category, marketplace Publisher name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Tools that ToolSpring requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Tool that you wish to appear in connection with your App; and (c) your End User Terms and End User Privacy Policy ((a)-(c), collectively, “Product Information”). Together, the Tools and Product Information are “Content”.

5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide ToolSpring with corrections, updates, or modifications.

5.3. Compliance. You will ensure that all Content complies with this Agreement. In your activities under this Agreement, you also agree to comply with the ToolSpring Acceptable Use Policy (as may be modified from time to time by ToolSpring) (the “AUP”).

5.4. License Grant to ToolSpring. You hereby grant ToolSpring, during the Term (and thereafter in accordance with Section 11 (Term and Termination)), the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:

(a) to resell, distribute or make available (including via download), as applicable, the Tools through ToolSpring to end users by all means of electronic distribution available now or in the future;

(b) to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) ToolSpring and (ii) listings for your Tools;

(c) otherwise to use, store, copy and distribute your Content (i) for testing and evaluation (including scanning for Viruses, as defined in Section 12.6) conducted by ToolSpring and its third party vendors; (ii) for purposes of exercising ToolSpring’s rights and fulfilling ToolSpring’s obligations hereunder; and (iii) for purposes of enforcing this Agreement and the marketplace Guidelines;

5.5. License Clarifications. The licenses granted to ToolSpring in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, as described in Section 11 (Term and Termination), to continue to retain and make available Tools and Product Information to existing end users after the Term, and (iii) are granted under all applicable intellectual property rights (including patent rights).

5.6. End User Terms. You, not ToolSpring, license your Tools to end users, and you must provide your own End User Terms and End User Privacy Policy with any Tool. Your End User Terms and End User Privacy Policy must comply with, and be consistent with, the terms and conditions of this Agreement, including Section 8.4 (End User Data and Privacy-Related Obligations). You agree that ToolSpring does not and will not have any responsibility or liability related to compliance or non-compliance by you or any end user under the applicable End User Terms or End User Privacy Policy.

5.7. Publisher Dashboard. During the Term, ToolSpring Publisher may use the Publisher Dashboard to access ToolSpring Guidelines, ToolSpring Marks, marketing tools and services, and other marketplace resources. ToolSpring Publisher may use such resources solely to exercise its rights and fulfill its obligations under this Agreement. To access the Publisher Dashboard, ToolSpring Publisher may be required to activate or validate its status as a ToolSpring Publisher, as further specified on the Publisher Dashboard landing page.

6. Delivery Commitments and Responsibilities related to End Users

6.1. Delivery Commitment. You will deliver electronically to ToolSpring (and continue to make available during the Term) all versions of Tools for which you have the rights required under this Agreement. You will deliver any New Versions to the Tools, together with any related Product Information, as soon as they are available. For Paid Tools, you must deliver to ToolSpring all of the same versions and editions of such Tool (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service.

6.2. End User Support. You will use commercially reasonable efforts to provide web-based support to the end users for your Tools during normal business hours (except where you have offered better support terms in your listing, in which case you must provide the support you promise to end users). You will provide to ToolSpring a current email address to which ToolSpring may direct inquiries from end users regarding your Tools. You are solely responsible for providing all support for your Tools, and for providing to end users of your Tools all information necessary for their use of your Tools. At a minimum you agree to respond within 24 hours to any support request that ToolSpring identifies as critical, and in all other cases within five business days of request from an end user or ToolSpring.

6.4. Migration of ToolSpring Publisher End Users into ToolSpring. You may contact ToolSpring at todo@ToolSpring.com in the event you desire to migrate your existing end users into ToolSpring to manage future license management and renewals. If authorized by ToolSpring, you will be provided access to ToolSpring’s migration API (“Migration API”) pursuant to which you will enter the license information and details necessary for you to utilize ToolSpring licensing mechanism for applicable end user. In connection with your use of the Migration API, you agree to only request license keys for your existing end users that began their respective license or maintenance period more than thirty-one (31) days prior to the date such license key is requested.

7. Reservations of Rights

As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the ToolSpring technology or materials used or included in the Content. Subject to your foregoing rights in the Content, ToolSpring retains all right, title and interest in and to ToolSpring, all ToolSpring products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.

8. Additional ToolSpring Terms

8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any ToolSpring code or technology used in connection with ToolSpring. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of ToolSpring or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to ToolSpring, or ToolSpring’s product or services, or (3) by ToolSpring or on behalf of ToolSpring, including with respect to handling of Security Incidents. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue ToolSpring.

8.2. Review of Tools by You. ToolSpring allows you to post reviews of Tools offered by other vendors. Any review by you of a Tool shall be made in good faith after reasonable evaluation of the full Tool. You (including your employees and others acting on your behalf) may not review or comment on your own Tool or those of competitors. As an exception, you may provide informational responses to support requests or other inquiries directed to you within the reviews or comments section of your App. All reviews must comply with ToolSpring’s AUP, and ToolSpring (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.

8.3. ToolSpring Operations. ToolSpring maintains sole discretion to determine all features and operations of ToolSpring. You acknowledge that ToolSpring has no obligation to promote, distribute, list or offer for Sale any Tool, or to continue to do so. With respect to Paid Tools only, ToolSpring is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through ToolSpring will be processed by ToolSpring’s payment systems and will be subject to the Revenue Share terms above. ToolSpring will have sole ownership and control of all Sales and other data ToolSpring obtains from end users in connection with ToolSpring, but will make available certain End User Data (as defined below) to you, subject to Section 8.4.

8.4. End User Data and Privacy‐Related Obligations.

(a) End User Data. An end user may enable you or your Tools to access End User Data. Based on the activities under this Agreement, ToolSpring may provide you with access to End User Data.

(b) Collection and Use. You must obtain all necessary rights, permissions, and consents from end users for your access, collection, storage, transmission, treatment, use, disclosure, sharing, and other processing of any End User Data, and will ensure that all such processing complies with your End User Terms, End User Privacy Policy, and all Laws. If you retrieve End User Data directly from ToolSpring (e.g., end user contact information) via ToolSpring-provided APIs, portals or other similar means, you must limit your access and processing of such information to that (a) authorized by the end user or (b) necessary for the purposes of providing the functionality of your App. You may not sell any End User Data. ToolSpring shall not be liable for, or have any responsibility in connection with, End User Data processed by you or your App, and such activities with regard to End User Data are not in any way by or on behalf of ToolSpring.

(c) End User Communications. You may use End User Data to communicate directly with end users only where required by Law or as consented to or requested by the end user. But you may not send marketing messages to end users within any user experience integrated with ToolSpring Products without ToolSpring’s express written consent.

(d) End User Terms. You must ensure end users agree to your End User Terms, which must comply with all Laws and clearly describe how the platform quotas and limits for Forge Tools or any other applicable usage limits may impact an end user’s use of your Tools.

(e) End User Privacy Policy. You must provide a clear, complete, and conspicuous End User Privacy Policy that notifies end users (1) how you access, collect and process End User Data, (2) with whom you share End User Data, (3) in which country or countries the End User Data will be stored and (4) that you (not ToolSpring) are responsible for your processing of End User Data, along with other disclosures required by Laws. You must comply with the terms and conditions of your End User Privacy Policy, and promptly notify end users and ToolSpring of any material changes to it.

(f) Security. You must use industry-standard security measures appropriate for all End User Data and your processing activities, adequate to preserve End User Data’s confidentiality and security and comply with all Laws. You agree to remediate all security vulnerabilities identified to you by ToolSpring within reasonable commercial timeframes.

(g) Security Incidents. Upon discovery or notice of any Security Incident, unless prohibited by Laws, you will promptly (within 24 hours) notify ToolSpring via the ticket creation link at Tool Security Incident Management Guidelines. Your notice will provide ToolSpring information about the Security Incident and how it may affect ToolSpring Products, end users or End User Data, and you agree to provide further information and assistance related to the Security Incident described in the marketplace Guidelines or as ToolSpring may request. Without limiting your other obligations, in event of a Security Incident, you will be solely responsible, at your own expense, for investigation, remediation and your own notifications to affected end users and regulatory authorities in accordance with Laws and industry standards. However, you must obtain ToolSpring’s approval for any breach notifications to end users that refer directly or indirectly to ToolSpring. You must ensure that you have an updated contact name and contact information in your developer account for Security Incidents. Without limiting any other reserved rights of termination or suspension, ToolSpring may de-list your Tool from ToolSpring or suspend use of or access of your Tool to ToolSpring products as a result of any Security Incident.

(h) Security and Privacy Review. ToolSpring, or an authorized third party selected by us, may conduct a security or privacy review of any Tool or its supporting infrastructure to ensure compliance with (i) your obligations under Section 8.4 or (ii) security and privacy related sections of the ToolSpring Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments. In addition, ToolSpring reserves the right to request that you provide the source code for your App, but solely for the purpose of ToolSpring conducting security and/or privacy tests. You agree to reasonably and promptly cooperate with such requests and reviews of your Tool and/or your App’s supporting infrastructure (in the case of Cloud Tools). ToolSpring (itself or through third parties) may conduct new or additional Tool security scans beyond those described in this Section 8.4(f), in which case ToolSpring will provide you at least 15 days prior notice and you may choose to opt-out of such scan with notice to ToolSpring.

8.5. Export Controls and Economic Sanctions. You acknowledge that you develop and offer Tools through ToolSpring via its marketplace, and therefore you agree to strictly comply with all U.S. export controls and economic sanctions laws and regulations in connection with these activities. You also acknowledge that ToolSpring and others may lawfully rely on your determination of your Tool’s export control status. Thus, you hereby represent, warrant, and certify that: (1) your Tools are authorized for export from the United States and re-export to each country to which you permit them to be distributed or made available through ToolSpring, in accordance with the requirements of the U.S. Export Administration Regulations, 15 C.F.R. Part 730 et seq.; and (2) either (i) the Tools do not contain, use or support any data encryption or cryptographic functions (“Encryption Technology”) and have Export Control Classification Number (“ECCN”) EAR99 or (ii) you have qualified each Tool containing, using or supporting Encryption Technology for export as a “mass market encryption item” having ECCN 5D992 in accordance with 15 C.F.R Part 742.15(b)(2), as an item eligible for License Exception ENC pursuant to 15 C.F.R Part 740.17(b)(1) having ECCN 5D002, or as an EAR99 item and will, upon request, provide ToolSpring with a copy of the applicable self-classification report or mass market export classification ruling (CCATS), if applicable, issued by the United States Commerce Department, Bureau of Industry and Security. You further agree to comply with any and all ongoing export-control and reporting obligations, if applicable, related to any of your Tools. You agree to indemnify ToolSpring of any claim brought against ToolSpring for violation of any export-controls or economic sanctions law or regulation related to your Tools. You represent, warrant, and certify to ToolSpring that you will comply with all applicable export control and economic sanctions laws and regulations.

8.6. Feedback. Providing feedback, comments or suggestions about ToolSpring (“Feedback”) to ToolSpring is wholly voluntary. ToolSpring may freely use Feedback for any purpose.

8.7. Aggregated Information. In addition to ToolSpring’s other rights, ToolSpring may collect aggregated information regarding ToolSpring and Tools (excluding any personally identifiable information). We will not provide information to any third party about Tools, or end users purchasing Tools, except as necessary for us to perform our obligations under this Agreemen or our other applicable customer agreements.

9. ToolSpring Control of marketplace

ToolSpring may determine in its sole discretion to make available or list any Tool through ToolSpring, or to remove any Tool from ToolSpring. ToolSpring may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Tool in ToolSpring does not relieve you of responsibility to ensure the Tool complies with this Agreement or to perform other obligations under this Agreement.

11. Term and Termination

11.1. Term. The term of this Agreement (the “Term”) will begin on the date you agree to it in the manner set forth in the third paragraph of this Agreement and will continue until you or ToolSpring terminates it.

11.2. Termination Rights.

(a) Either ToolSpring or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular Tools, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party’s intellectual property rights.

(b) Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by ToolSpring at the time), ToolSpring may also terminate this Agreement (and/or terminate or suspend either your account on the marketplace or this Agreement with respect to any particular Tools) under the following circumstances: (i) ToolSpring ceases to operate the marketplace, (ii) you violate ToolSpring’s AUP, (iii) ToolSpring suspends or terminates the ToolSpring Developer Terms as relates to you or your App(s), or (iv) ToolSpring determines (in its discretion) that your participation in the marketplace could result in legal or business liability to ToolSpring or any third party or otherwise harm the marketplace or other marketplace Publishers or users.

11.3. Effect of Termination; Transition.

(a) Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your Tool from the marketplace, (i) in ToolSpring's discretion, ToolSpring may continue to fulfill any end user orders for Tools pending as of the date the termination takes effect, and (ii) ToolSpring will use reasonable efforts to take down the listing for your Tool within forty-five (45) days after the effective date of termination (or, if specified by ToolSpring, within the same period after notice of termination) (the “Transition Period”). ToolSpring may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your App, for its own record-keeping purposes.

(b) End User Rights. Unless otherwise specified by ToolSpring, all end user licenses and subscriptions to Tools (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable End User Terms. As such, ToolSpring may continue to make available any Tools for further access, downloads or re-downloads by existing end users of those Tools for the duration of their applicable license, subscription or maintenance term (including after the Transition Period) (the “Surviving Term”), either directly or through ToolSpring Publishers.

(c) Your Transition Obligations. If you are a ToolSpring Publisher of Paid Tools, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for doing the following, consistent with ToolSpring’s guidance and instructions:

(1) making the Tool (including any New Versions) available to ToolSpring and marketplace users at least until the conclusion of any Surviving Terms for all end users who have purchased such Tools;

(2) taking all actions necessary to move existing end users with Surviving Terms to your non-ToolSpring license mechanism.

(3) arranging to provide for ongoing support and maintenance (including New Versions) with respect to your Tools for all end users who have purchased such rights for the duration of the term for which you have committed to provide such support and maintenance; and

(4) communicating such matters accurately and in a positive and professional manner to end users.

For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Tool to ToolSpring for distribution under this Agreement thereafter, but ToolSpring’s post-termination rights in this Section 11.3 will apply for the latest version of the Tool you provided to ToolSpring hereunder (and any prior version).

11.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional ToolSpring marketplace Terms) (excluding your participation in any Tool Program or use of related badges), and 10 (ToolSpring Developer Terms) through 20 (General).

12. Representations and Warranties

You represent, warrant and covenant that:

12.1. You are at least 18 years of age and are able to form a legally binding contract. If ToolSpring Publisher is a business or other legal entity and not an individual, then the individual entering into this Agreement on marketplace Publisher’s behalf represents that he or she has all necessary legal authority to bind marketplace Publisher to this Agreement;

12.2. You have the full right, power, and authority to enter into and fully perform this Agreement;

12.3. Before providing ToolSpring any Content or listing Content in ToolSpring, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;

12.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;

12.5. You will immediately notify ToolSpring if you lose any IP rights related to your Tools or become aware of a third party claim related to these rights;

12.6. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and

12.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your End User Terms) based on your use of third party “open source” software or other third party intellectual property in any Tool. You will also promptly make available to ToolSpring, end users and any other third party that is entitled to it, the source code corresponding to any Tool or portion thereof if required, and in the manner required, by applicable third party terms and conditions. ToolSpring’s use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.

13. Indemnity

13.1. You will indemnify, defend and hold harmless ToolSpring and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any third party claim relating to (i) any Content or the use of Content (including any claims made by or arising from end users), (ii) your breach or alleged breach of this Agreement, or (iii) any Security Incidents caused by your Tools or third party services supporting your Tools (individually, a “Claim,” and collectively, the “Claims”). In any defense or settlement negotiations, you will keep ToolSpring apprised of all relevant developments, including the choice of counsel. ToolSpring may participate in the defense or settlement of any Claim at its own expense. You will provide ToolSpring with reasonable notice of any judgment entered against ToolSpring or any settlement terms offered to settle a Claim and you will not consent to the entry of a judgment or settle a Claim without ToolSpring’s prior written consent, which we may not unreasonably withhold. If you do not promptly assume and reasonably conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then ToolSpring may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 13.1 are independent of your other obligations under the Agreement.

14. ToolSpring Confidential Information

14.1. Definition. All information disclosed by ToolSpring that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of ToolSpring and ToolSpring’s applications; non-public aspects of third-party applications listed in ToolSpring to which you obtain access as a result of the relationship between you and ToolSpring under this Agreement; non-public End User Data provided to you by ToolSpring; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and ToolSpring under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to ToolSpring or anyone else.

14.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide ToolSpring with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at ToolSpring’s cost, if ToolSpring wishes to contest the disclosure.

14.3. Injunctive Relief. In event of actual or threatened breach of this Section 14, ToolSpring shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.

15. Independent Development

Information You Provide Is Not Confidential. ToolSpring develops its own products and services and works with many other Publishers and developers, and either ToolSpring or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your Tools. Subject to ToolSpring’s obligations relating to your financial data in Section 4.6 and Tool source code in Section 8.4(h) and the terms of any applicable mutually-agreed non-disclosure agreement, nothing limits ToolSpring or such third parties from doing so, and ToolSpring has no confidentiality obligations for information you submit in connection with this Agreement.

16. ToolSpring Trademarks/Publicity/Intellectual Property

You will not violate ToolSpring intellectual property in any form, including ToolSpring patents, trademarks, copyrights, and trade secrets. You will: (i) only use the ToolSpring Marks in the form and manner as set forth in ToolSpring’s Trademark Guidelines, ToolSpring Brand Guidelines and AdWords Trademark Policy and only in connection with the sale of your Tools in ToolSpring (if any conflict, real or perceived, arises in the foregoing Guidelines, ToolSpring retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that ToolSpring communicates to you regarding the use of ToolSpring Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any ToolSpring Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the ToolSpring Marks, unless you are otherwise authorized to continue using the ToolSpring Marks pursuant to a separate written agreement with ToolSpring.

17. Disclaimers and Limitations of Liability

17.1. Disclaimer of Warranties. TOOLSPRING AND TOOLSPRING MARKS ARE PROVIDED “AS IS” AND TOOLSPRING EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

17.2. Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE AND EXCEPT FOR MARKETPLACE PUBLISHER’S BREACH OF SECTION 8.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 8.4 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 14 (CONFIDENTIALITY): (A) NEITHER YOU NOR TOOLSPRING SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR TOOLSPRING’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TOOLSPRING, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED TOOLSPRING’S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, “TOOLSPRING’S MARGIN” MEANS THE AMOUNTS RECEIVED BY TOOLSPRING FROM SALES OF YOUR TOOLS, MINUS THE REVENUE SHARE TOOLSPRING HAS PAID YOU.

17.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.

18. Agreement Changes

As ToolSpring evolves over time, we may need to update this Agreement. Therefore, ToolSpring reserves the right to change this Agreement at any time in its sole discretion with the changes to the Agreement becoming effective thirty (30) days after notice (unless ToolSpring specifies a shorter notice period). ToolSpring will give you notice of the changes by posting an updated version of this Agreement on its website or within the marketplace, or by emailing you at an email address you have provided. If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to ToolSpring and (ii) withdrawing all of your Tools from the marketplace. If you terminate this Agreement according to the preceding sentence, the changes will not apply to you. Otherwise, your continued participation in ToolSpring after the changes take effect will constitute your acceptance of the changes. In addition, you may be required to click to agree to the modified Agreement to continue participating in the marketplace.

19. Dispute Resolution; Governing Law

19.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 19.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 19.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.

19.2. Governing Law; Jurisdiction. These Terms of Use will be governed by and construed in accordance with the applicable laws of the state of New South Wales, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms of Use must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the relevant court in Sydney, New South Wales, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Sydney, New South Wales, Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

19.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 19.1 (Informal Resolution) and 19.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent ToolSpring from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

19.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

20. General

This Agreement may not be amended except in writing signed by both parties or as provided in Section 18 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or Publishers, despite use of the term “Publisher”. Each party will bear its own costs and expenses in performing this Agreement. ToolSpring’s failure to enforce any provision of this Agreement will not constitute a waiver of ToolSpring’s rights to subsequently enforce the provision. ToolSpring may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that ToolSpring’s affiliates, contractors and service providers may exercise all rights of ToolSpring under this Agreement, including ToolSpring’s license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without ToolSpring’s prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give ToolSpring written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that ToolSpring determines that such assignment is to a competitor of ToolSpring, ToolSpring may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by ToolSpring via email, via a posting in the ToolSpring Guidelines or via the Publisher Dashboard, or (ii) by you via email to legal@toolspring.com or to such other email or physical addresses as ToolSpring may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.