WHEREAS:
(1) These Terms & Conditions apply to participants in the ShieldApps® Basic White Label Program (the “Program”).
(2) In these Terms & Conditions, “we”, “us”, “our” and “ShieldApps” means ShieldApps Software innovations, a California USA registered company.
(3) In these Terms & Conditions, “Partner”, “you” and “your” means the individual or organization that is applying to become a participant in the Program and who will accept these Terms & Conditions upon completing the first order process (the “Effective Date”).
(4) By accepting these Terms & Conditions you agree to be bound by them and shall enter into a binding agreement with ShieldApps (the “Agreement”).

WHEREAS, ShieldApps has the right to sublicense the software defined below as Licensed Software; and

WHEREAS, the parties desire that ShieldApps sublicenses to Partner the rights to market and promote one or more of ShieldApps’ software products under a rebranded name (“White Label/Labeled Product”), subject to the terms and conditions hereof;

NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:

1. Definitions.

a. “Licensed Software” means either one or more software products from the ShieldApps products portfolio in a compiled form.

b. “White Labeled Products“, “White label” and / or “White labeled” / or “Product/s” means a rebranded version of the Licensed Software only to be handled by Partner as described in Exhibit A.

c. “Proprietary Rights” means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, Branding Features, and confidential and proprietary information protected under contract or otherwise under law, and other similar rights or interests in intellectual or industrial property.

d. “Branding Features” means proprietary domain names, trade names, trademarks, logos, or other distinctive branding features.

2. Grant of License and Restrictions. Subject to the terms and conditions herein, ShieldApps hereby grants to Partner a non-exclusive license, subject to ShieldApps’ Proprietary Rights, as follows:

a. To distribute the Licensed Software in White Labeled format only and in no relation to the ShieldApps brand names and services.

b. In accordance with the rights granted in 2a through Partner’s subsidiaries, value-added resellers, distributors and resellers (including affiliate partners participating in an organized affiliate program), if any, (collectively “Partner Network”) to distribute the rebranded version of the Licensed Software.

c. Partner shall not represent himself/herself as a ShieldApps’ formal representative.

d. Partner shall not promote the services provided by Partner as ShieldApps’ services or products.

3. Partner is not authorized (i) to incorporate the Licensed Software into any product or code other than the White Labeled Product, or (ii) to distribute the Licensed Software on a standalone basis, independent of the White Labeled Product, nor may Partner sublicense the right to White Label the product to any third party if not covered by this Agreement or any addition to this agreement.

4. Branding Requirements; “White label” Rights and Obligations. Distribution of the White Labeled Product is authorized only with the Partner Branding Features, which shall be created by ShieldApps. Partner does not acquire any rights to ShieldApps Branding Features or associated goodwill hereunder.

 All distribution rights and licenses granted herein for Licensed Software are subject to the forgoing branding requirements.

5. Export. The Licensed Software, including associated technical data, may be subject to export or import regulation in other countries. Partner agrees at its expense to comply strictly with all such regulations, and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import White Labeled Products.

6. Reservation of Rights. All rights not expressly granted to Partner herein are expressly reserved by ShieldApps.

7. Royalties / Licensing Fees. Partner shall pay Royalties/Licensing Fees to ShieldApps in accordance with Exhibits A-C attached.

8. Marketing, Operations and Support Obligations.

a. ShieldApps’ Obligations. ShieldApps shall perform the following obligations at its cost and expense, unless otherwise indicated.

    • ShieldApps shall build and provide Partner with one finished installer and/or mobile application of the White Labeled Product.
    • ShieldApps shall provide technical support only to Partner and not to Partner’s customers, end-users, or Partner Network.
    • ShieldApps shall sign the rebranded product with ShieldApps Code Signing Certificate.
    • ShieldApps shall incorporate ShieldApps’ managed EULA and Privacy Policy content pages.

b. Partner’s Obligations. Partner shall perform the following obligations at its cost and expense, unless otherwise indicated.

    • Provide ShieldApps with a product name.
    • Partner shall be responsible for all hosting, marketing and distribution of the White Labeled Products and the accompanying website/s.
    • Partner shall appoint and notify ShieldApps of its technical contact. Partner’s technical contact shall coordinate all technical issues on behalf of Partner that arise out of this Agreement.
    • Partner shall be solely responsible for providing “first line” technical support directly to its customers, end-users, and Partner Network regarding the White Labeled Product(s).

9. Warranty Disclaimers.

a. To the maximum extent allowed by applicable law, each party on behalf of itself and its suppliers hereby disclaims all warranties, either expresser implied, including the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, with regard to the software and any related written materials, system integration, and data accuracy. Each party acknowledges that it has not relied on any representation that is not expressly set out herein.

b. ShieldApps’ products and/or services are not fault-tolerant and are not designed or intended for high-risk activities requiring fail-safe performance. Partner expressly agrees and acknowledge that Partner will not license, market or make available any End Product(s) to End Users requiring continuous, error-free or failsafe operation (including, without limitation, in applications involving nuclear power plants, military applications, aircraft navigational and communications systems, or in medical or other applications essential to maintaining human lives).

10. Indemnification. Partner agrees to indemnify, defend and hold ShieldApps and its subsidiaries and their employees, officers, directors, and licensors harmless from any and all liabilities, losses, claims, demands, actions, proceedings, damages, costs and expenses including without limitation, legal fees and expenses in connection with any suit or claim arising out of Partner’s marketing or distribution of the Licensed Software, and/or all acts of misrepresentation of the White Labeled Software features, purpose, qualities and performance or any other claims that may be sustained or incurred by Partner as a result of

a.

    • material breach by it of this Agreement;
    • any negligent act of omission or misrepresentation by it or any officer, director, employee or authorized agent of it in connection with the performance of its duties under this Agreement;
    • any negligent, tortuous or unlawful conduct on the part of Partner or its officers, owners, directors, employees, agents, representatives, independent contractors or service providers in connection with the performance of its duties under this Agreement; or
    • any of Partner’s soliciting, telemarketing, scripts, advertisements, marketing schemes, distribution channels, promises, practices or program materials that deviate from the Marketing Claims irrespective of whether or not they were reviewed by the other Party.

b. Indemnifications outlined in this Agreement shall survive any termination of this agreement.

11. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall ShieldApps be liable for any damages whatsoever (including without limitation, special, incidental, consequential, or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this product, even if ShieldApps has been advised of the possibility of such damages. In any case, ShieldApps’ entire liability under any provision of this agreement shall be limited to the amount earned by ShieldApps from Partner in the last three (3) months preceding the cause of action giving rise to the liability.

12. Software Behavior.

a. Third-Party Services. Our software may display, include or make available third-party content (including data, information, applications and other products services) or provide links to third-party websites or services (“Third-Party Services”). You acknowledge and agree that ShieldApps shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. ShieldApps does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services. Third-Party Services and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

b. Third Party, Open Source Software. Parts of the Product/s may incorporate and consist of (i) proprietary software and / or (ii) third party open source materials (e.g., any software subject to open source, copyleft, gnu general public license, library general public license, lesser general public license, Mozilla license, open source initiative license, Apache or public domain licenses, or similar license) (“Open Source”), which you/your customers may use under the terms and conditions of the specific license under which the Open Source software is distributed. You agree that you will be bound by any and all such Open Source license agreements. Title to Open Source software remains with the applicable Licensor(s). Any Open Source provided with or contained in the Product is provided “AS IS” and without any warranty of any kind.

c. Dark Web Scan. You/your customers may not use our dark web scanning service for any purpose that would require FCRA compliance. The scan results displayed may not be 100% accurate, complete, or up to date, thus cannot be used as a substitute for self due diligence, especially if you/your customers have any concerns about your email and/or password safety. ShieldApps does not make any representation or warranties regarding the accuracy of the information available through the API nor about the integrity of the 3rd party involved, and we encourage you/your customers to read their terms and privacy policy accordingly.

d. Some of the ShieldApps antivirus features are a derivative work of the ClamAV antivirus engine service (an open-source antivirus engine for detecting trojans, viruses, malware & other malicious threats. ShieldApps also leverages the Avira Operations GmbH & Co. KG’s SAVAPI, MAVAPI and APC SDK packages which deliver protection against viruses, malware, Zero-day attacks, advanced persistent, known, and unknown threats.

e. Virtual Private Network (VPN) – VPN service coverage, speeds, server locations, and quality may vary and be subject to unavailability for a variety of factors beyond our control, including but not limited to emergencies; third-party-service failures; or transmission, equipment, or network problems or limitations, interference, or signal strength; and may be interrupted, refused, limited, or curtailed at either ShieldApps’ or a Third Party Vendor discretion. ShieldApps is not responsible for data, messages, or pages lost, not delivered, delayed, or misdirected because of interruptions or performance issues with the Service, communications services, or networks. ShieldApps may impose usage or Service limits, suspend Service, terminate VPN accounts, or block certain kinds of usage in its sole discretion to protect its users or the Service. The accuracy and timeliness of data received is not guaranteed; delays or omissions may occur. ShieldApps guarantees a strict no-logs policy for the VPN Service, meaning that the ShieldApps VPN Service is provided by an automated process, and the users’ activities while using it are not monitored, recorded, logged, stored or passed to any third party. We do not store connection timestamps, session information, used bandwidth, traffic logs, IP addresses or other data. However, to fight abuse and enforce proper license usage, an algorithm keeps their username and the timestamp of the last session status while the session is active. This data is deleted promptly after the session is terminated.  It is your users’ responsibility to be aware of the security and privacy implications for the VPN configurations they use (such as encryption options and network routes) and the VPN servers they connect to. With the exception of the aforementioned processes, our products do not collect or send out any identifiable private data. Our VPN feature is a derivative work of a VPN service provided by Private Communications Corporation, which utilizes OpenVPN as its underlying technology, an open-source software that uses VPN techniques to create secure point-to-point or site-to site connections in routed or bridged configurations and remote access facilities. OpenVPN is licensed under both the terms of the OpenVPN license and GPLv2.

f. For more information about third party services please refer to our End License user Agreement online:  https://shieldapps.com/eula/

13. Reciprocal Disclosure of Confidential Information. The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”). For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Owner (i) which relates to designs and programming techniques embodied in the Licensed Software in the case of ShieldApps and the White labeled Products in the case of Partner, and the business models and plans, and technical information and data of an Owner or its customers or suppliers regarding the Licensed Software in the case of ShieldApps and the White labeled Products in the case of Partner, or (ii) which, although not related to the Licensed Software or White labeled Products, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required or permitted hereunder and only to its employees or contractors who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.

14. Injunctive Relief. The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of Proprietary Rights would constitute irreparable harm, and that the aggrieved party shall be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.

15. Term and Termination

a. Term of Agreement. The initial term of this Agreement shall commence as of the Effective Date hereof and shall continue for a period of one (1) year. The initial term hereof shall automatically renew for successive one (1) year terms unless either party notifies the other in writing not less than sixty (60) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein.

b. Either party may terminate this Agreement and all rights granted herein after thirty (30) days from receipt of written notice describing the nature of the termination.

c. Effect of Expiration or Termination. Upon the expiration or termination hereof, all rights and licenses granted herein shall terminate, and Partner shall cease distributing White Labeled Products. Each party shall promptly return all Confidential Information of the other party. Notwithstanding the forgoing, Partner may exercise the rights and licenses necessary solely for Partner to fulfill its outstanding support obligations to existing customers. The terms and conditions of Sections 9 through 14, and any payment obligations, and any rights of action for breach of this Agreement that may have arisen prior to termination or expiration, shall survive any termination or expiration of this Agreement.

d. Upon termination;

      1. All outbound links shall be changed to a ShieldApps’ managed ‘Product Discontinued’ support web page.
      2. If applicable – access to the admin-panel and/or licensing API shall be disabled.
      3. Mobile applications shall not be updated further.
      4. Any further product/s installations and/or subscriptions shall be considered a ShieldApps proprietary asset.

e. Upon termination, ShieldApps shall continue to support partner’s active annual licenses until they expire.

f. Termination for Cause / Breach of Contract

      1. In the event of the Partner’s material breach of this Agreement, ShieldApps shall have the right to terminate the White Labeled Product/s and any unused and/or unpaid for licenses immediately without written notice and shall have all remedies available at law available to it. In such case, the Partner shall immediately cease using the White Labeled Product/s and promptly delete, erase and destroy the White Labeled Product/s remaining licenses including all and any copies hereof.
      2. In the event of Termination for Cause, ShieldApps shall have no obligation to refund Partner for any prepaid licensing fees whatsoever, nor to maintain previously used licenses. Any further product/s installation and/or subscriptions shall be considered a ShieldApps proprietary asset.
      3. Termination for cause and/or breach of contract shall not relieve Partner’s obligation to pay all fees that have accrued or are otherwise owed by Partner under this Agreement.

16. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, Partner shall not assign this Agreement or any right or interest under this Agreement without ShieldApps’ prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

17. Independent Contractors. The relationship of the parties is that of an independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Partner shall have no authority to enter into agreements of any kind on behalf of ShieldApps and shall not have the power or authority to bind or obligate ShieldApps in any manner to any third party.

18. Force Majeure. Neither ShieldApps nor Partner shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, epidemics, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.

19. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or mail (registered or certified only), return receipt requested, to the address set forth below or such other addresses as the parties may designate from time to time in writing in accordance with this Section. Notice by mail shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent.

20. Notices sent by facsimile or email shall be deemed effective on the date sent provided that delivery is confirmed.

21. Questionable Practices (“Inappropriate Use”). ShieldApps may terminate Partner’s account if Partner engages in any practice that is, in ShieldApps’ sole discretion, objectionable, unlawful, obscene, threatening, abusive, libelous or hateful, or that encourages conduct which would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal, national or international law. This includes, but is not limited to:

a. content that in any way exploits minors under 18 years of age

b. viruses, worms, phishing, malware, or any other potentially harmful software

c. marketing to any lists of prospect users whose recipients did not express explicit consent to receive such marketing material

d. products, services, or content that are often associated with abusive business practices or marketing schemes, such as:

      1. pop-ads that prompt users to pay for immediate support without true necessity
      2. illegal or abusive software, media, or other goods
      3. “get rich quick” and other similar offers
      4. promoting pyramid schemes or network marketing (i.e. MLM) businesses
      5. odds/betting/gambling sites, including but not limited to casino & sporting events

 22. Appropriate / Inappropriate Use.

a. Any and all acts of Inappropriate Use by Partner shall be considered a material breach of this agreement. Partner acknowledges that ShieldApps’ commercial terms and interest per this agreement constitute of the Products licensing fees, thus any activity that may show contradicting practices by Partner shall be considered a material breach of this agreement.

b. Partner hereby commits to provide a Product license to each and every Partner’s user/subscriber that has been granted the Product, for a fee or free, directly or indirectly, standalone or bundled with additional offer/s or otherwise. Any activity that may show contradicting practices by Partner shall be considered a material breach of this agreement.

c. Product licenses provided to Partner’s users shall incur license fees as described in Exhibit C.

23. Miscellaneous. This Agreement shall be construed, controlled and governed by the laws California, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. Both Parties hereby irrevocably consent to and submit to the exclusive jurisdiction and venue of the state and federal courts located in California.

 

 

EXHIBIT A – SOFTWARE DESCRIPTION, SETUP FEE, TERMS

1. Licensed Software / White labeled Product/s: the compiled rebranded version of one or more of ShieldApps’ proprietary software along with its accompanying technical documentation, and any updates or modifications delivered by ShieldApps to Partner under this Agreement to be marketed by Partner under its own branding.

2. Setup Fee. Unless waived, Partner shall pay a non-refundable setup fee. The setup fee shall include:

a. a design in accordance with the current layout of the software.

b. all reasonable modifications to the showcased software. Significant changes requested by the Partner shall be considered and quoted to the Partner separately.

3. Royalties / Licensing Fees: Unless timely promotions or bulk order discounts apply, the fees payable for the licenses granted herein shall be as detailed in Exhibit C. Late payments and/or lack of payment by Partner shall be considered a material breach of this agreement and shall initiate Termination for Cause.

4. Licenses Validity: Ordered licenses are valid for activation 12 months from the order date. Licenses that were not activated prior to 12 months from order date shall be cancelled with no compensation to Partner.

5. First Order / Prepaid Licensing Credit: Unless otherwise agreed by both sides, Partner shall place a non-refundable first order and/or shall place a prepaid licensing credit per label upon Agreement as detailed in Exhibit B. Prepaid Licensing Credit shall be valid for usage within the first Term of Agreement and shall be voided at the end of the first Term of Agreement without compensation and/or refunds to Partner.

6. Payment terms. Unless otherwise agreed by both sides, all orders are prepaid. Post payments are due Net +10 from invoicing date. Partner shall receive an invoice upon each order and/or monthly, for the previous month’s activity.

7. Late Payments.  If any invoice under this Agreement remains unpaid as of its due date, the amount of such invoice shall accrue interest at a rate of five percent (5%) per week or, if less, the maximum rate permitted by applicable law, until such time as Partner pays all amounts due and payable, together with all accrued interest.  Any failure by Partner to make any payment hereunder within twenty (20) days after the due date for such invoice/payment shall be deemed a material breach under this Agreement.  If any collection efforts are required under this Agreement, Partner shall be liable for, and agrees to pay to ShieldApps, the actual, reasonable, and verifiable costs of collection, including, without limitation, reasonable attorneys’ fees, costs and expenses.

8. Taxes. Partner will be responsible for, and will promptly pay, all applicable taxes, government fees, duties, excises, tariffs, and other similar amounts of any kind imposed on either party associated with this Agreement or Partner’s receipt, use, export or import of the Licensed Software, or the associated services, except for ShieldApps’ normal operating income taxes.

 

 

EXHIBIT B – THE WHITE LABELED PRODUCT

  • Partner acknowledges that unless requested and agreed upon by both sides, each white labeled product will be similar⁽ⁱ ⁱⁱ⁾ in features and technical attributes to the products showcased in ShieldApps’ online website.
  • Mobile applications shall reside within ShieldApps managed mobile store.
  • Partner acknowledges that ShieldApps shall make commercial reasonable efforts yet cannot guarantee Google/Apple product acceptance and/or acceptance time.
  • ShieldApps shall make commercially reasonable efforts to ensure each feature’s compatibility with future versions of each operating system and browser. Partner acknowledges and agrees that from time to time certain features may be added or removed and ShieldApps shall inform Partner of such needed changes promptly upon decision to apply such changes.
  • Future products requested by Partner from the date of Agreement onwards shall be considered an integral part of this Agreement and bound to its terms and conditions.
  • Mandatory Monthly Minimum:

At the beginning of each calendar month, Partner shall be invoiced a mandatory monthly minimum fee of $99.00 for which Partner is granted a $99.00 licensing credit (“Licensing Credit “)to be used within the same month. To clarify – licensing credit cannot be aggregated/transferred from month to month.

At the end of each calendar month, Partner shall be invoiced for the excess amount/orders for licenses generated and/or ordered during the month beyond the licensing credit.

 

EXHIBIT C – ROYALTIES / PRICING CHART

 

Standard Licensing Fee:

    • 1 year 1 device license: $5.00
    • 1 year 3 devices license: $7.50
    • 1 year 5 devices license: $10.00