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This Marketplace Vendor Agreement (“Agreement”) is entered into between the third party offering Products on the Marketplaces (“you” or “Partner”), Automattic Inc. (“Automattic”), and/or WooCommerce, Inc. (“WooCommerce”). For Products listed on WordPress.com websites or digital properties (“WP Marketplace”), you enter this Agreement with Automattic, and for Products listed on the WooCommerce website(s) or digital properties (“Woo Marketplace”), you enter this Agreement with WooCommerce. Each of the WP Marketplace and Woo Marketplace is referred to as a “Marketplace” and together as the “Marketplaces.” By listing a Product on a Marketplace, Partner accepts the terms of this Agreement. Automattic, WooCommerce, and Partner are each referred to as a “Party” and collectively as the “Parties.”

The world is getting bigger but we have a mission to make it manageable. We have built marketplaces of paid Products to allow WordPress.com and WooCommerce users (“Users”) to purchase additional functionality for their websites and ecommerce stores. This Agreement describes the Parties’ commitments to provide Users with the Partner’s Product(s).

1.     Partner Responsibilities

1.1.       Product Guidelines

1.1.1.       Partner shall provide clear and conspicuous notice to potential and existing Users of any terms and conditions that the Partner requires Users to agree to in order to use the Product (“Product Terms”).

1.1.2.       Partner shall comply with all WordPress Product coding standards, policies, and procedures, including, without limitation, the Automattic Privacy Policy, Product Developer Guidelines, Support Best Practices Guidelines, Product Security Requirements, and Supporting WordPress.com Product Guidelines, each as may be updated from time to time. Additionally, for Products listed on the Woo Marketplace, Partner must also ensure compliance with the Woo Plugin Developer Handbook, Woo Support Best Practices, Woo Support Guidelines, and Woo Marketplace Documentation. Collectively, these WordPress, Automattic, and WooCommerce guidelines, policies, and procedures are referred to as “Policies and Procedures.” Partner must ensure that Product(s) and the Product Terms do not violate or contradict the relevant Policies and Procedures. Partner will have fifteen (15) days to comply with any updates to the Policies and Procedures.

1.1.3.       The Product must be GPL compatible and shall be licensed under the GPL.

1.1.4.       Partner shall provide the Product in accordance with the Product Terms.

1.1.5.       All Product updates must support the two (2) most recent releases of WordPress, Automattic products (including WooCommerce), and any requirements reasonably necessary to ensure the Product’s compatibility with Users’ websites as we may communicate to the Partner.

1.1.6.       Partner shall use best efforts to utilize secure software design and testing procedures in connection with the Product. Partner will implement Safeguards to protect User Data processed via the Product against unauthorized access, use, and disclosure. Partner will ensure the Safeguards meet industry standards and best practices, and will regularly review the adequacy of the Safeguards to address evolving threats and vulnerabilities. Automattic and/or WooCommerce have the right to review the source code of the Product on its respective Marketplace to confirm the Product complies with applicable Policies and Procedures, and does not contain malware, viruses, security vulnerabilities, or other harmful code.

1.1.7.       If Users are charged a fee for the Product or additional features within the Product, the Product and/or the additional features must not be available on free versions of the Product.

1.1.8.       Partner will provide all notices, and obtain all consents, required under applicable law in connection with Partner’s collection, use and sharing of any personally identifiable information collected by Partner via the Product. Partner will only collect, use, and disclose such data in accordance with applicable laws and Partner’s privacy policy. Notwithstanding the foregoing, under no circumstances will Partner provide such data to information brokers (i.e., data brokers).

1.1.9.       The Product shall comply with all applicable laws.

1.1.10.    For Products listed on the WP Marketplace, Partner shall provide Product support to Users in accordance with the WP Support Guidelines, and Partner must use Automattic’s User support system (currently, Zendesk) to provide User support.

1.1.11.    For Products listed on the Woo Marketplace, Partner shall provide Product support to Users in accordance with the Woo Support Guidelines, and Partner must use WooCommerce’s support system to provide User support.

1.2. Marketplace Guidelines

Regarding the Product that Partner lists in on a Marketplace, Partner agrees to:

1.2.1.       maintain the Partner Page and provide accurate and complete information (including a description of the Product and contact information for User to contact Partner for support).

1.2.2.       not claim the Product is an “official” WordPress.com, WooCommerce, or WP Job Manager product.

1.2.3.       not display any link that leads to a third party site on Partner Page.

1.2.4.       not promote aspects of the Product on the Partner Page if not offered on the Marketplaces.

1.2.5.       set fair pricing for the Product, taking into consideration our pricing recommendations. The Product price on the Marketplaces must be the same as the fee charged for the Product outside of Marketplaces. Partner acknowledges that we may offer promotions, discounts, and sales that will temporarily change the Product pricing

1.2.6.       provide Users with accurate written documentation on how the Product works.

1.2.7.       not solicit or permit reviews that are fake, inaccurate, irrelevant, misleading, being used improperly for commercial gain, posted in exchange for a financial or other gain, posted multiple times (whether from the same or more than one account), misleading as to the reviewer’s identity or their connection to the Product being reviewed, or reviews that contain or link to prohibited or illegal content.

1.2.8.       not subvert or override any User relationship to the Marketplaces, such as inserting spam links, upselling services that do not involve the WordPress ecosystem, utilizing tracking about Users’ usage of WordPress.

1.2.9.       not collect any revenue based on the total value of payments completed using the Product or features available within the Product (also known as Total Payment Volume). Partner must enter into a separate agreement with Automattic and/or WooCommerce for any revenue collection related to Total Payments Volume.

1.2.10.    ensure the Product is not a solution for processing or enabling payment transactions (“Payments Solution”). In order to make a Payments Solution available to Users of the Marketplace(s), Partner must enter into a separate agreement with Automattic and/or WooCommerce, as applicable.

1.2.11.    not collect any revenue based on the total amount of payments transacted using the Product. To collect any such revenue from the Product, Partner must enter into a separate agreement with Automattic and/or WooCommerce, as applicable.

1.2.12.    abide by the following additional terms and conditions for Products on the Woo Marketplace:

(a) Partner shall not create branded top level menus for Products listed on the Woo Marketplace.

(b) The Product may be made available standalone or as part of a Woo Bundle. With respect to any Woo Bundle in which the Product is used, WooCommerce will pay Partner the Net Product Revenue on a pro-rata basis, proportionate to the value of the Woo Bundle as a whole as determined in WooCommerce’s reasonable judgment.

Partner acknowledges that failure to adhere to Sections 1.1 and 1.2 or to provide adequate support to Users may result in low support ratings, less prominent Product exposure, low sales, billing disputes, and/or removal of the Product from the Marketplace. We reserve the right to withhold revenue from all Partner Products if at any time if Partner does not comply with the terms of this Agreement or does not respond to our attempts to resolve an issue.

2.     Fees

2.1. For Products listed on the WP Marketplace, Automattic will pay Partner 70% of the Product Net Revenue that Automattic collects in connection with a User’s subscription to the Product from WP Marketplace on a monthly basis within thirty (30) days of the end of each calendar month.

2.2.  For Products listed on the Woo Marketplace, WooCommerce will pay Partner 70% of the Product Net Revenue that WooCommerce collects in connection with a User’s purchase of the Product from the Woo Marketplace on a monthly basis within thirty (30) days of the end of each calendar month.

2.3. Partner shall be responsible and liable for all amounts relating to Taxes. We will be responsible for facilitating any User requests or claims related to returns, cancellations, refunds, and/or fraud. We will not be liable and Partner shall have no right to claw back any such amounts relating to the amounts outlined in the preceding sentence.

3.     Removal of the Product

3.1. While we do not take on an obligation to monitor the Product, we reserve the right to suspend or remove a Product from the Marketplace(s) and/or a User’s Website at any time at our discretion, and to modify a Product for the purpose of fixing bugs or protecting the security and/or performance of Automattic, WooCommerce, or our Users’, systems or Websites. We will give Partner thirty (30) days’ notice before we remove a Product from a Marketplace, but we may suspend a Product immediately, including for the reasons listed in Sections 3.3.1 – 3.3.8 below. Once suspended, a Product will not be available for purchase or renewal until/unless the issue is resolved, as determined in our sole discretion.

3.2. Partner’s requests to remove a Product will require our consent, which will not be unreasonably withheld, but will take into account the best course of action to ensure continuity of service to Users.

3.3. In the event that we remove a Product from a Marketplace, Partner may be required to continue to provide support to active Users until the subscription term for that Product is due for renewal, or refund purchases of Users who purchased the Product within the past year, as we reasonably determine. Additionally, upon such removal, we will have the right to directly provide Product support to active Users. We may remove the Product, at our sole discretion, including for any of the following reasons:

3.3.1.       the Product or any portion thereof infringes or misappropriates any third party’s intellectual property rights or any other rights of any third party, and Partner is not able to develop a work around or obtain a license so that the Product is non-infringing within a period of 14 days;

3.3.2.       the Product or any portion thereof violates any applicable law or is subject to an injunction;

3.3.3.       the Product or any portion thereof violates Policies and Procedures, Automattic’s brand guidelines (https://automattic.com/press/brand-materials/), or WooCommerce’s brand guidelines (https://woocommerce.com/trademark-guidelines/)

3.3.4.       the Product or any portion thereof poses a risk of damaging Automattic, WooCommerce, or any third party’s software or systems, or is deemed by us to have a virus or be malware or spyware;

3.3.5.       the Product or any portion thereof violates the terms of this Agreement;

3.3.6.       the Product receives low Product ratings, support ratings, we determine it to be harmful to our brand or reputation, or the Product is not being adequately supported by Partner;

3.3.7.       the Product becomes redundant due to a feature being rolled into Automattic’s WordPress.com platform or WooCommerce’s platform; or

3.3.8.       in response to Partner’s request to terminate this Agreement or remove the Product.

4.     Automattic Responsibilities

Subject to the terms of this Agreement, we:

4.1.        will operate and maintain the Marketplace(s)

4.2.        will list the Product in the Marketplace(s) subject to this Agreement.

4.3.        will update the Product(s) as requested by Partner from time to time.

4.4.        will provide Partner with Monthly Reporting.

4.5.        will host Partner’s Product and documentation about the Product on the Marketplace(s) and determine the functionality and design.

4.6.        may, in its sole discretion, promote Partner or the Product, by conducting marketing and promotional activities using commercially reasonable efforts and/or implementing a system to provide product and support rankings (based on User reviews and ratings) with rules to promote fairness and accuracy.

For clarity, we reserve the right to provide access to the Marketplace(s) to competitors of the Partner and make no promise of exclusivity in any particular market segment.

5.     Intellectual Property and Ownership

5.1.        Each Party owns its Brand Features and any intellectual property not explicitly transferred or licensed to the other Party under this Agreement.

5.2.        Each Party grants the other Party a non-exclusive, non-transferable license to use its Brand Features solely with respect to any promotional activities that directly relate to the promotion and sale of the Product on the Marketplace(s). Partner agrees to follow the Automattic brand guidelines (https://automattic.com/press/brand-materials/) when using Automattic’s Brand Features and WooCommerce’s brand guidelines (https://woocommerce.com/trademark-guidelines/) when using WooCommerce’s Brand Features.

5.3.        The Parties acknowledge that User Data is our Confidential Information. From time to time, we may provide User Data to Partner to facilitate Partner’s provision of Product support. Partner shall not use the User Data for any purpose other than provision of such Product support without our prior written consent.

6.     Term and Termination

6.1.        This Agreement will continue indefinitely until terminated by either Party.

6.2.        Either Party can terminate this Agreement upon thirty (30) days’ written notice to the other Party for any reason.

6.3.        We may terminate this Agreement with immediate effect in the event that Partner breaches any warranty, representation or provision of this Agreement, including Partner’s obligations to provide support to Users. We will make a good faith effort to give Partner an opportunity to remedy certain breaches before terminating this Agreement, while taking into account the best course of action to ensure continuity of service to Users. In such instances, we reserve the right to suspend payments to Partner until the breach is remedied.

6.4.        Upon termination, you must remove any derivative or variation of WordPress.com, Automattic, or WooCommerce from the name of the Product.

7.     Warranty

Partner represents and warrants that it has all rights and licenses necessary to make the Product available in the Marketplace(s), and that the Product does not (a) infringe or misappropriate the intellectual property of any third party, (b) violate any applicable laws, or (c) contain any malware, viruses, Trojan horses, or other malicious code. Except as expressly set forth in this Agreement, each Party disclaims all other warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.

8.     Indemnity

Partner will indemnify, defend, and hold harmless Automattic, WooCommerce, its Affiliates, and its and their directors, officers, employees and agents from and against any and all liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) to the extent arising out of any third-party claim or bona fide allegation in writing related to (a) any actual or alleged breach of this Agreement by Partner, (b) the Product, or (c) Partner’s Brand Features.

9.     Limitation of Liability

Except with respect to a Party’s obligations under Section 8 (Indemnity), a Party’s breach of Section 10 (Confidentiality), or Partner’s breach Section 1 (Partner Responsibilities) or Section 7 (Warranty), in no event will either Party have liability (a) for any special, incidental, consequential, punitive or exemplary damages, even if advised of the possibility of such damages; or (b) exceeding the greater of One Hundred Thousand U.S. Dollars (US$100,000) or the amounts actually payable to a Party under this Agreement in the preceding twelve (12) months from the claim giving rise to such liability.

10.   Confidentiality

Each Party will (a) protect the other Party’s Confidential Information against unauthorized access and use, (b) use the other Party’s Confidential Information only to exercise its rights and perform its obligations under this Agreement, and (c) not disclose the other Party’s Confidential Information except to anyone acting on its behalf who need to know it in connection with the performance of this Agreement and who have agreed in writing to keep it confidential. A Party compelled by a court or other governmental authority to disclose the other Party’s Confidential Information shall provide advance notice to the other Party to the extent permitted under applicable law. Confidential Information excludes information that: (i) was known by the receiving Party prior to disclosure; (ii) enters the public domain through no wrongful act of either Party; (iii) is disclosed to the receiving Party by a third party legally entitled to make such disclosure; or (iv) is independently developed by a Party without reference to the other Party’s Confidential Information.

11.   Audit

Upon fifteen (15) days’ prior written notice, we shall have the right to audit, or to appoint an independent auditor under appropriate non-disclosure conditions (as determined by us in our sole reasonable discretion) to audit the Partner and/or the Product to confirm Partner’s compliance with this Agreement, including without limitation Partner’s compliance with our requests for Partner’s adherence to data collection practices and requests from Users, as applicable, to delete User Data obtained through the Marketplace(s). Such an audit will take place during the Partner’s normal business hours. We will bear any third party auditor costs, provided, however, that if such audit reveals Partner’s noncompliance with this Agreement, the Partner will be responsible for the cost of such audit. If requested, Partner must provide proof that Partner’s Product complies with this Agreement.

12.   Data Privacy

To the extent we collect personal data in connection with this Agreement, we will use such data as set forth in our Privacy Policy. To the extent Partner collects personal data in connection with this Agreement, Partner will use that data only as set forth in its published privacy policies, privacy notices, and in compliance with all applicable laws.

13.   Assignment; Sale of Product

This Agreement is not assignable or transferable without the express written consent of the other Party, not to be unreasonably withheld; provided, however, that this Agreement may be assigned in its entirety by Automattic to a successor-in-interest or an Affiliate. Partner must notify us in writing at least thirty (30) days in advance of any Change of Control.

14.   Similar Products

We are not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with the Product, provided that we do not use Confidential Information of the Partner in so doing. Further, Partner acknowledges that we may recommend alternatives to the Product to Users.

15. No Waiver

The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

16.   Independent Contractors

The Parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both Parties as joint venturers or partners for any purpose.

17.   Survival

Any provisions which by their nature should survive termination or expiration of this Agreement will survive.

18.   Entire Agreement

This Agreement sets forth the entire understanding of the Parties and supersedes any prior oral or written agreements or understandings between the Parties as to the subject matter of this Agreement.

19.   Governing Law

Except to the extent any applicable law provides otherwise, the Agreement will be governed by the laws of the state of California, U.S.A. excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement will be the state and federal courts located in San Francisco County, California.

20.   Definitions

20.1.      “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a Party. For purposes of this definition, “control” means having more than 50% ownership or the right to direct the management of the entity.

20.2.      “Affiliate Costs” means any amounts paid by us for affiliate programs run by us or our Affiliates. For clarity, notwithstanding anything to the contrary in other agreements you have with us, Partner will not be eligible for Affiliate costs related to the sale of Products.

20.3.      “Brand Features” means any trademarks, trade names, service marks, logos, designs and other distinctive brand features of a Party that such Party provides to the other Party in connection with this Agreement.

20.4.      “Change of Control” means a change of control of a Party’s business, including, without limitation, experiencing or initiating a stock purchase or sale, merger, or other form of corporate transaction, including acquisition by another entity, whether in whole or in part.

20.5.      “Confidential Information” means information that one Party or its Affiliate discloses to the other Party under this Agreement, and that is marked as confidential or proprietary or would otherwise reasonably be considered confidential information under the circumstances.

20.6.      “Monthly Reporting” means either a monthly report or dashboard access to reporting that will include the number of Product sales, revenue share earned from the sale of Products, and any returns or refunds.

20.7.      “Partner Page” means the linked webpage from the WP and/or Woo Marketplace, as appropriate, that describes the Product.

20.8.      “Policies and Procedures” mean all WordPress, Automattic, WooCommerce Product coding standards, policies, and procedures, including, without limitation, Privacy Policy, Product Developer Guidelines, Best Practices Guidelines, Product Security Requirements, and Support Guidelines each as may be updated from time to time. For Products listed on the Woo Marketplace, this includes the Woo Plugin Developer Handbook, Woo Support Best Practices, Woo Support Guidelines, and Woo Marketplace Documentation each as may be updated from time to time.

20.9.      “Product” means a piece of software developed by a Partner listed on a containing functionality or features that can be added to a Website.

20.10.   “Product Net Revenue” means the amount paid by Users for subscribing to and/or purchasing the Product or features within the Product on the WP Marketplace or Woo Marketplace less any amounts for Affiliate Costs, refunds, reversals, payment processing fees, and Taxes.

20.11.   “Safeguards” mean administrative, technical and physical safeguards.

20.12.   “Taxes” means any sales, use, license, value added, withholding, excise or similar federal, state or local tax that apply to the sale or use of the Product.

20.13.   “User” means any individual or entity using products or services offered by us, including the Product(s).

20.14.   “User Data” means any personal information or other data or information collected by or on behalf of us from Users of the Products, our products, or of any website or service operated or maintained by us

20.15.   “Website” means any websites that are owned, operated or managed by Automattic and/or the Users.

20.16.   “We,” “us,” and “our” mean Automattic and/or WooCommerce as appropriate.

20.17.   “Woo Bundle” means a collection of software product(s), website theme(s), plugins, services, or offers including the Product, that WooCommerce offers for sale and/or sells through any means of storage, transmission, or copying now known or hereafter devised, including the WooCommerce website and makes available for a one-time, subscription, or platform subscription fee.

20.18.   “Woo Marketplace” means an online webpage operated by WooCommerce that allows Users to purchase a Product or subscription access to a Product.

20.19.   “WP Marketplace” means an online webpage operated by Automattic that allows Users to purchase a Product or subscription access to a Product.