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Magento

Extension Distribution & Service Agreement

 

This EXTENSION DISTRIBUTION & SERVICE AGREEMENT (this “Agreement”) is a binding contract between you (“Developer” or “you” or “your”) and Magento, Inc. (“Magento”).  Developer and Magento are each a “Party” and collectively the “Parties.”  You are agreeing to be bound by this Agreement on behalf of your employer or other entity, and you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement.  If you do not have the requisite authority, you may not accept this Agreement on behalf of your employer or other entity.  By accepting these terms where the option is made available to you, and/or by accessing or using the Magento Developer portal or submitting or uploading your Extension to Magento Marketplace, you agree to be bound by the terms of this Agreement.

 

In consideration of the mutual covenants and the premises contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, Magento and Developer hereby agree as follows:

 

           

  1. 1.             DEFINITIONS.  As used in this Agreement, the following terms shall have the meanings as set forth below:

1.1          “Business Day” means any day, which is not a Saturday, Sunday, an official federal holiday in the United States (and for services provided in a specific country, the official federal holidays of such country), or December 24th.

1.2          “Corporate Affiliate” of a party means an entity or person that directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such party, where "Control" means possession of the power to direct or cause the direction of the management and policies of that party through direct or indirect: (a) majority ownership; or (b) ownership sufficient to be deemed a controlling interest.  An entity shall be deemed an affiliate for only so long as such Control exists.

1.3          “Extension”  "Extension(s)" means a product or service that is purchased or downloaded through Magento Marketplace, together with any provided documentation. Extensions include, but are not limited to, development modules, add-ons, language packs, design interfaces and themes, and any copies thereof, whether singularly, collectively or in any combination.

1.4          “Magento Marketplace” means the Magento Extension Marketplace at the Magento website, as may be modified by Magento from time to time.

1.5          “Magento Software” means the proprietary software developed by Magento designed to implement certain connected features when integrated with or distributed in conjunction with Developer’s Extension pursuant to this Agreement, and all derivatives thereof.

1.6          “Merchant Customers” means persons or entities who access Magento Marketplace in any manner and are licensed by Magento for the use of the community edition version of the Magento Software or for merchants, who are currently licensed for the enterprise edition of the Magento Software.

1.7          “Third-Party Service Provider” means a third party other than Magento that provides services. 

  1. 2.             OWNERSHIP AND GRANT OF RIGHTS.

2.1          Ownership.  Except as set forth herein, no right, title or interest in the Extension is transferred to Magento by means of this Agreement.  Magento will not remove, alter, cover or obscure any Developer trademark, copyright notice or any other proprietary rights notice in the Extension.  The Extension other than the Magento Software (the “Works”), including all intellectual property rights therein, shall be exclusively owned by Developer.  No right, title or interest in the Magento Software is transferred to Developer by means of this Agreement.

2.2          Grant of Rights to Magento.  Subject to the terms and conditions of this Agreement, Developer hereby grants to Magento the limited, non-exclusive, non-transferable, sublicenseable right during the term of this Agreement to use, execute, install, market and distribute the source code versions of the Extension directly to Merchant Customers. 

2.3          Software Modification License.  Subject to the terms and conditions of this Agreement, Developer grants to Magento a non-exclusive, non-transferable, sublicensable, and limited license to modify and create derivative works of the Extension software solely as reasonably required to implement a version of the Extension software for Merchant Customers that includes Developer’s font and color selections and a display of Developer’s logo.

2.4          Documentation License.  Subject to the terms and conditions of this Agreement, Developer grants to Magento a non-exclusive, non-transferable, sublicenseable, and limited license: (i) to reproduce Software-related user documentation provided by Developer (“Documentation”) to Merchant Customers pursuant to merchant end user license agreements and solely in conjunction with the Software licensed to Merchant Customers, and (ii) to modify and create derivative works of such Documentation, and to modify and create such derivative works solely as are reasonably required to permit Magento branding of the Documentation in the form of Developer’s font and color selections and a display of Developer’s logo.

2.5          Compatibility with Magento Software. Developer shall be responsible for the  integration and shall ensure full compatibility of such Extension with the Magento Software in accordance with the documentation and standards made available to Developer.  As a registered Developer, you may have access to certain proprietary content that Magento may make available to you from time to time (“Content”).  Subject to the terms and conditions of this Agreement, Magento hereby grants to Developer a limited, revocable, non-exclusive, non-transferrable, non-sublicenseable license to access and use such Content solely for the purposes contemplated by this Agreement.  Except for the license rights expressly set forth in this Section, no right, title or interest in the Content or the Magento Software is transferred to Developer by means of this Agreement.  Your rights under this license to use and access the Content will terminate automatically without notice from Magento if you fail to comply with any of these provisions.

  1. 3.             RESTRICTIONS.

3.1 You agree not to exploit Magento Marketplace or any services or content provided to you as a registered Developer, in any unauthorized way, including, but not limited to, by trespass, burdening network capacity, falsifying or modifying user reviews, inflating page views, tampering with system or quality signals, or using Magento Marketplace or the Content other than for authorized purposes.  Copyright and other intellectual property laws protect Magento Marketplace and its Content and you agree to abide by and maintain all notices, license information, and restrictions contained therein.  Unless expressly permitted herein or otherwise permitted in a separate agreement with Magento, you may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit Magento Marketplace, or Content in whole or in part.  You may not decompile, reverse engineer, disassemble, attempt to derive the source code of any security components of Magento Marketplace (except and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing).  Use of Magento Marketplace, Content or services to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited.  Magento retains ownership of all of its rights in Magento Marketplace, the Content and services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Magento intellectual property.

3.2       Maintenance.  Following the launch of Developer’s Extension, Developer shall use reasonable efforts to provide product updates and content refreshments for all titles and brands associated with the Extension that Developer provides to Magento hereunder when Developer releases such updates and refreshments as part of its regular development and release schedule.   

  1. 4.             DELIVERY, REVIEW AND ACCEPTANCE.  Magento shall have thirty (30) business days from receipt of the Extension hereunder to evaluate and accept or reject such Extension for distribution (the “Acceptance Testing Period”).  If Magento rejects the Extension pursuant to this Section 4, Magento shall notify Developer in writing or via e-mail within the Acceptance Testing Period.  Any acceptance of the Extension shall not prejudice Magento’s rights or limit Developer’s obligations and warranties under this Agreement.

4.1          Technical Review.  You are responsible for evaluating and testing your Extension as to its technology, functionality, performance, security, and user interface before your Developer Extension can be submitted to Magento for review and listing on the Magento Marketplace.  Upon submission of Developer’s Extension, Magento reserves the right to conduct any type of review of your Extension and will perform a review, which may include, but is not limited to, security testing, plagiarism review and evaluation of your coding practices.

4.2          Adherence to Magento Extension Guidelines.  If Developer’s Extension passes Magento’s technical review, the Extension will be subject to Magento’s “Extension Guidelines”, which guidelines may be modified or updated, in Magento’s discretion, from time to time.  The technical and guideline review will be completed within the Acceptance Testing Period, and Developer will be notified if such Extension has passed all applicable reviews. 

  1. 5.             PAYMENTS.

5.1          Payments and Compensation for Services.  Unless the Parties otherwise agree in writing, Developer and Magento shall pay the fees as set forth in Appendix A or in accordance with the terms and conditions set forth in the http://magento.com/legal/terms. If Developer obtains revenue from the initial sale of an Extension, or collects subsequent revenue after the sale of, and related to, the Extension, within the Magento interface or externally, including, but not limited to: ongoing subscription fees, referral revenue, add on fees, upgrades or affiliate fees, Developer shall be required to make a payment to Magento as set forth in Appendix A or in a separate document otherwise agreed in writing between the Parties.  Developer acknowledges and agrees that these transactions shall be subject to additional charges by Magento and shall be quoted separately by Magento.

5.2          Invoices.  All invoices submitted to Magento shall be provided in accordance with the terms and conditions.  Magento shall not be required to remit payments for any invoices received by Magento more than thirty (30) days after Magento provides to Developer the applicable monthly report described in Appendix A.

5.3          Minimum Payout Amount.  Unless and until the aggregate outstanding amount owed by Magento to Developer under this Agreement (the “Outstanding Amount”) exceeds $100 USD, the Outstanding Amount will be retained by Magento until the following invoice period.  Once the Outstanding Amount exceeds $100 USD, or at the end of the calendar year (regardless of the amount), Magento will pay Developer the Outstanding Amount.

5.4          Currency.  All payments to and from each Party under this Agreement will be made in USD.

5.5          Taxes.  Magento will collect and remit sales and other applicable taxes associated with purchases of Extensions through Magento Marketplace, and the fees applicable to such purchases shall be adjusted for such taxes as set forth in Appendix A.  Prior to making any Extensions available through Magento Marketplace, Developer must provide to Magento all tax-related documentation that Magento reasonably requires, in complete, accurate, trackable and verifiable form, including but not limited to: (i) if you are located within the United States, you must complete a W-9; and (ii) if you are located outside of the United States, you must complete a W-8BEN (consumer) or W-8BEN-E (business) or W-8ECI, as applicable.  Magento will send Developer the applicable form of such documentation to Developer’s registered email address.  You hereby authorize Magento to withhold any or all amounts reasonably necessary to comply with applicable tax laws, rules or regulations, and you shall provide to Magento sufficient evidence of any exemption from such tax laws. 

5.6          Dispute Resolution. If any dispute arises relating to either Parties' rights or obligations hereunder and the Parties are unable to resolve the dispute in the ordinary course of business, Developer and Magento will work together in good faith to resolve the matter in accordance with this Section 5.6.  If the Parties are unable to resolve the dispute, either Party shall be free to pursue any remedy it may have at law or in equity. 

  1. 6.                 RETENTION OF RECORDS, REPORTS AND AUDIT RIGHTS.  During the term of this Agreement, Magento shall deliver to Developer a report within thirty (30) days after the end of each calendar month of all sales of the Extension.  During the Term, and for a period of one (1) year thereafter, each Party will keep books and records sufficient to verify the accuracy of the payments required by this Agreement.  At Developer’s sole expense, Developer may hire a reputable certified public accountant (subject to the requirement of such accountant signing a non-disclosure/confidentiality agreement in a form agreed upon in advance by the Parties) to inspect Magento’s financial records so long as: (a) Developer gives Magento thirty (30) Business Days’ prior written notice of its intent to inspect; (b) the inspection extends only to Magento’s records upon which the reports under this Section 6 are based; (c) the inspection occurs during Magento’s normal business hours; and (d) the inspection occurs no more than once annually during the term of this Agreement.  If Magento is found to have made an error in its favor, Magento shall pay to Developer all underpayments within thirty (30) days of the discovery thereof.

6.1          Audit Rights. Magento will have the right, during normal business hours and upon at least ten (10) Business Days’ prior notice, to have an independent audit firm selected by Magento inspect your servers and premises and audit your records relating to the administration of this Agreement in order to verify that you have paid Magento the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement.  Such audits will be conducted no more than once in any period of six consecutive months.  The audit will be conducted at Magento’s expense, unless the audit reveals that you have underpaid the amounts owed to Magento by more than five percent (5%) or failed in some other material respect to comply with the terms of this Agreement, in which case you will reimburse Magento for all reasonable costs and expenses incurred by Magento in connection with such audit.  This right will survive termination or expiration of this Agreement for two (2) years.  You will promptly pay Magento for any amounts shown by any audit to be due and owing to Magento.

6.2          Order Review.  Magento will maintain reasonable order review policies and procedures designed to detect and limit fraud in connection with payments and orders and may implement any new technology or process on Magento Marketplace that is designed to improve order processing and fraud prevention for Magento Marketplace.  Such measures may include requests for additional data or implementation of tracking codes.

  1. 7.             TRADEMARK LICENSE.

7.1          Trademarks.  The Magento Marks (as defined below) shall be the sole and exclusive property of Magento.

7.2          Use of Marks by Developer.  Subject to the terms and conditions of this Agreement, and upon your electionto license the Extension Software and Documentation branded with the Magento Marks (defined below in this Section), pursuant to Section 7.1 above, Magento grants to you, during the term of this Agreement, a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses except as expressly set forth in this Agreement) to use and reproduce the trademarks and trade names of Magento as notified by Magento to Developer (“Magento Marks”), solely in connection with marketing Magento Software and in accordance with Magento’s Trademark Usage Policy, which is incorporated herein by reference.  Magento grants no rights in the Magento Marks other than those expressly granted in this Section 7.2.  You acknowledge Magento’s exclusive ownership of the Magento Marks.  You agree not to take any action inconsistent with such ownership and to cooperate, at Magento’s request and expense, in any action (including the conduct of legal proceedings), which Magento deems necessary or desirable to establish or preserve Magento’s exclusive rights in and to the Magento Marks.  You will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Magento Marks or in such a way as to create combination marks with the Magento Marks.  Upon Magento’s request, you will provide Magento with samples of all your materials that contain the Magento Marks prior to their public use, distribution, or display for Magento’s quality assurance purposes and will obtain Magento’s written approval before such use, distribution, or display.  At Magento’s request, you will modify or discontinue any use of the Magento Marks if Magento determines that such use does not comply with Magento’s Trademark Usage Policy.  You acknowledge and agree that, except with respect to the trademark license granted herein and to the Magento Marks, no licenses are granted by Magento to any other trademarks, service marks, or trade names owned by Magento or its Corporate Affiliates.  The use of any Magento Marks, directly or indirectly, by Developer inures solely to the benefit of Magento and its applicable affiliates.

7.3          Use of Marks by Magento.  Subject to the terms and conditions of this Agreement, Developer grants to Magento the limited, non-exclusive, non-transferable, sublicenseable right during the term of this Agreement to use the trademarks, trade names, logos and other proprietary indicia owned or licensed by Developer associated with Developer or Developer’s Extensions, as well as descriptions of Developer’s Extensions, in marketing materials and communications and in connection with Magento Marketplace or other Magento sites, applications or services for the purposes of marketing, selling, distributing or providing services related to Developer’s Extensions.

  1. 8.             HOSTING, DISTRIBUTION AND CUSTOMER SERVICE.

8.1          Customer Service.  Developer shall be solely responsible for performing, in a manner consistent with good industry practice, all 24/7 technical support services requested or required by Merchant Customers and end-user merchants of Developer’s channels that are related to the Magento Software and services.  Developer will provide all direct communications and services to and from Merchant Customers with respect to all support services.  Developer will use continuous efforts, with appropriate escalation to senior management, to provide a resolution for any problem as soon as is commercially reasonable, but no later than two (2) business days.

8.2          Terms of Use.  You must include your terms of use and privacy policy for each Extension in accordance with Magento’s Extension Guidelines and this Agreement (“your Terms”).  You must comply with your Terms and you are liable for all claims related thereto.  Magento is not a party to your Terms, as your Terms are between only you and the Merchant Customer that downloads the Developer Extension.  Accordingly, you and not Magento are responsible for the Extension, the content therein, and any warranties or claims that any party may have relating to your Extension.  You agree that your Terms will not imply or state that Magento is responsible for anything related to your Extension and your Terms may not contradict this Agreement.  You acknowledge that Magento is a third party beneficiary of your Terms and Magento has the right to enforce your Terms.

8.3          Third-Party Service Providers.  You may use third party services from Third-Party Service Providers that you have contracted with to provide services.  You shall be responsible for the services and fees for the Third Party Service Providers pursuant to its separate agreements and you shall be responsible for integrating with the Third Party Service Providers in accordance with the terms and conditions of a mutually agreed upon SOW.  Magento does not provide warranties, guaranties or indemnification regarding any Third Party Service Providers or any of their products or services, regardless of whether Magento had involvement in your introduction to such Third Party Service Provider.  Any exchange of data or other interaction between you and a Third Party Service Provider or use of the products or services of a Third Party Service Provider by you is solely between you and such Third Party Service Provider.  

  1. 9.             REPRESENTATIONS AND WARRANTIES.

9.1          By Developer.  Developer hereby represents and warrants to Magento that:

(a)           Developer owns or is a valid licensee of the Extension provided by Developer to Magento hereunder, and Developer has the right to license and has licensed the Extension hereunder;

(b)           The Extension developed and/or provided by Developer to Magento pursuant to this Agreement does not infringe upon the proprietary rights of any third parties;

(c)           To the extent the Extension collects any personal information from users, Developer agrees to provide Magento with a privacy policy that is also maintained on Developer’s home page and available on the landing screen of the Extension.

9.2          By Magento.  Magento hereby represents and warrants to Developer that:

(a)           Magento is a Delaware corporation in good standing, with full power and authority to enter into this Agreement and to carry out its obligations hereunder; and

(b)           This agreement constitutes a valid and binding Agreement of Magento, enforceable against it in accordance with its terms.  

9.3          Disclaimer of Warranties.  EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY PROVIDES ANY OTHER WARRANTIES TO THE OTHER PARTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  1. 10.          INDEMNIFICATION. 

10.1        Developer Indemnification.  Developer agrees to indemnify and hold Magento and its employees and affiliates harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees, arising out of any third party claim related to (a) a breach of the warranties set forth in Section 9.1 hereof, or (b) the gross negligence or intentional misconduct of Developer or Developer’s employees or agents.  Magento shall promptly inform Developer of any such claim, demand, suit or judgment, and Magento shall cooperate with Developer with respect to the defense or settlement thereof.

10.2        Magento Indemnification.  Magento agrees to indemnify and hold Developer and its employees and affiliates harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees, arising out of any third party claim related to (a) a breach of the warranties set forth in Section 9.2 hereof, or (b) the gross negligence or intentional misconduct of Magento or Magento’s employees or agents.  Developer shall promptly inform Magento of any such claim, demand, suit or judgment, and Developer shall cooperate with Magento with respect to the defense or settlement thereof.

  1. 11.              LIMITATION OF LIABILITY.  EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 HEREOF IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY CLAIMS OF LOST OR ANTICIPATED PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR OWED BY MAGENTO TO DEVELOPER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM.
  2. 12.          CONFIDENTIALITY. 

12.1        Definitions.  For purposes of this Section 12, the following terms shall be defined as follows:

Confidential Information” shall mean: (i) the trade secrets and technology embodied in the Extension, including, without limitation, the source code thereof and/or in any work in progress in connection therewith; (ii) any information disclosed by the disclosing Party to the receiving Party or any of each Party’s employees or agents in connection herewith, including, without limitation, any financial disclosures; (iii) information concerning each Party’s marketing or product plans and any other confidential business or technical information disclosed to the receiving Party in the furtherance of this Agreement, including information of a Party’s Corporate Affiliate(s); and (iv) the terms of this Agreement.  “Confidential Information” shall not include information that: (A) is or becomes generally known or available by publication, commercial use or otherwise through no breach of this Agreement by the receiving Party; (B) is known by the receiving Party at the time of disclosure by the disclosing Party; (C) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information; (D) is lawfully obtained from a third party who has the right to make such disclosure; or (E) is released for publication by the disclosing Party in writing.

12.2        Confidentiality Obligations.  Unless the receiving Party receives the prior written consent of the disclosing Party, each Party hereby agrees that the Confidential Information (a) is confidential to the disclosing Party; (b) shall be held in strict confidence by the receiving Party; and (c) shall not be disseminated or disclosed to any third party, or to any employee, agent, contractor or Corporate Affiliate of the receiving Party without a need to know.  The receiving Party shall not use the disclosing Party’s or its Corporate Affiliates’ Confidential Information for any purpose whatsoever other than performance of its rights and obligations under this Agreement.  The receiving Party shall use at least the same degree of care, and in no event less than reasonable care, in protecting the disclosing Party’s Confidential Information as it uses to protect its own.  The receiving Party shall remind all employees, agents or contractors of the receiving Party of the confidentiality requirements imposed by this Agreement, which requirements shall apply to all such employees, agents and contractors.

  1. 13.          TERM AND TERMINATION.

13.1        Term.  The term of this Agreement shall begin on the Effective Date and continue until this Agreement is terminated by either Party in accordance with this Section 13.

13.2        By Magento.  Magento may terminate or suspend you as a Developer immediately, at any time in Magento’s sole discretion.  If Magento terminates you as a Developer, thus terminating this Agreement, Magento reserves the right to deny your reapplication at any time in Magento’s sole discretion. 

13.3        By Developer.  In the event of a material breach by Magento of a provision hereof, which breach is not cured by Magento within thirty (30) days of Magento receiving written notice of such breach from Developer, Developer may immediately terminate this Agreement by delivering written notice thereof to Magento.  In addition, Developer may, for any other reason, terminate this Agreement by provision of thirty (30) days’ advance written notice to Magento.

13.4        Change of Control.  Magento may terminate this Agreement upon provision of ninety (90) days’ advance written notice upon the occurrence of one of the following (each, an “Exit Event”): (i) the acquisition, directly or indirectly by any person or related group of persons, of beneficial ownership of securities possessing more than fifty percent (50%) of the total combined voting power of Developer’s outstanding securities (other than an acquisition by such party or an affiliate of such party); (ii) a merger, consolidation, reorganization of the other party or a similar business combination, in which Developer is not the surviving entity (except for reorganization for tax/other technical reasons); or (iii) the sale, transfer or other disposition of all or substantially all of Developer’s assets.

13.5        Effect of Expiration or Termination. Upon any expiration, termination or suspension of this Agreement, all rights and licenses granted to you by Magento will automatically and immediately cease, including your right to access Magento Marketplace.  Upon the expiration or termination of this Agreement: (a) Magento shall remove the Extension from Magento Marketplace; (b) all rights in the Extension granted to Magento by Developer hereunder shall revert to Developer; (c) Magento’s right to distribute the Extension will cease; (d) each Party shall cease all use of the other Party’s logos and trademarks and destroy or deliver all materials in their control or possession, which bear such logos or trademarks; and (e) each Party shall deliver or destroy, in accordance with the disclosing Party’s instructions, all materials that contain the disclosing Party’s Confidential Information.  Developer shall not be entitled to any refund or partial refund of any amounts paid under this Agreement.  Any amounts owed to Developer under this Agreement before such termination or expiration (less any costs, expenses, fees, Merchant Customer refunds, damages or other liabilities arising from Developer’s Extensions or Developer’s performance under or breach or termination of this Agreement) will be due and promptly paid by Magento upon such expiration or termination.  Any amounts owed to Magento under this Agreement before such termination or expiration will be due and promptly paid by Developer upon such expiration or termination.  

13.6        Survival.  Termination of this Agreement shall not affect any right of either Party that accrued prior to the date of termination.  The provisions of Sections 2.1, 6, 10, 11, 12, 13.5, 13.6, and 14 shall survive the termination or expiration of this Agreement.

  1. 14.              MAGENTO INDEPENDENT DEVELOPMENTNothing in this Agreement will impair Magento’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, or distribute.  In the absence of a separate written agreement to the contrary, Magento will be free to use any information, suggestions or recommendations you provide to Magento pursuant to this Agreement for any purpose, subject to any applicable patents or copyrights.
  2. 15.              NON-DISPARAGEMENTEach Party agrees that it will not disparage or make negative statements (or induce or encourage others to disparage or make negative statements) about the other Party, its Corporate Affiliates, or any of its past or present officers, directors, agents, employees, attorneys, successors and assigns.  For the purposes of this provision, the term "disparage" means any comments or statements, which would adversely affect in any manner: (i) the conduct of a Party's business; or (ii) the business reputation or relationships of a Party and/or any of its past or present officers, directors, agents, employees, attorneys, successors and assigns.
  3. 16.              GENERAL.

16.1        Governing Law.  This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of California, without regard to conflicts of laws principles.  The Parties further submit to and waive any objections to personal jurisdiction and venue in any of the following forums:  U.S. District Court for the Northern District of California, California Superior Court for Santa Clara County, Santa Clara County Municipal Court, or any other forum in Santa Clara County, for any disputes arising out of this Agreement.

16.2        Relationship of Parties.  The Parties acknowledge and agree that Developer has the status of independent contractor in relation to Magento, and nothing in this Agreement shall be deemed or construed to place the Parties in the relationship of employer/employee or principal/agent.  Neither you nor Magento is a partner, an agent or has any authority to bind the other.  You agree not to represent otherwise.  You also certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to become a registered Magento Developer.  Developer shall be responsible for any withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges on payments to Developer hereunder.

16.3        Assignment.  This Agreement may not be assigned in part or in whole by either Party without the prior express written consent of the other Party; provided, however, that Magento may assign this Agreement to its affiliates or in connection with a merger, acquisition, divestiture or similar corporate transaction.

16.4        Interpretation.  This Agreement shall be interpreted in accordance with its terms and without any strict construction in favor of or against either Party.

16.5        Severability.  Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in full force and effect as though such provisions were deleted.

16.6        Notices.  Any notice required or permitted to be sent hereunder, unless otherwise stated herein, shall be made in writing and shall be deemed delivered (a) if hand delivered, on the date of delivery, or (b) if mailed, three (3) days after it is placed in the mail if mailed by certified or registered mail, postage pre-paid with return receipt requested, to either Party at the addresses listed above.

16.7        Third Party Beneficiaries.  Magento’s Corporate Affiliates are intended third party beneficiaries of this Agreement, and each such affiliate may enforce any of Magento’s rights under this Agreement.  Magento’s Corporate Affiliates, as may be identified by Magento from time to time, may perform Magento’s obligations and receive performance from Developer under this Agreement.

16.8        Entire Agreement; Amendment; Communication.  This Agreement states the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, understandings, discussions, representations or agreements between the Parties hereto with respect to the subject matter hereof.  Both Parties acknowledge and agree that they are not entering into this Agreement based upon any representations other than those contained herein.  Both Parties have had the opportunity and ability to consult legal counsel of their own choosing.  This Agreement may be amended by an instrument in writing signed by both Parties.  In addition, Magento reserves the right, at its discretion, to modify this Agreement, including any rules and policies, at any time by posting notice of such changes to the legal page.  You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) (collectively, “Additional Terms”) communicated to you or posted by Magento.  All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of Magento Marketplace will indicate your acceptance of any Additional Terms.  If Developer does not agree with all Additional Terms, (i) Developer shall immediately provide written notice to Magento of its termination of this Agreement, which shall be Developer’s sole and exclusive remedy, and (ii) all of Magento’s obligations and all rights granted to Developer under this Agreement shall immediately cease.  Additional Terms will not be retroactive.  Additional Terms will become effective, and will be deemed accepted by Developer, (a) immediately for those who become Developers after the notification is posted, or (b) for pre-existing Developers, on the date specified in the notice, which will be no sooner than 10 days after the changes are posted (except changes required by law which will be effective immediately).  In addition, Magento may be sending communications to you from time to time.  Such communications may be in the form of phone calls and/or emails and may include, but not be limited to, marketing materials, technical information, and updates and/or changes regarding your participation as a Developer.  By agreeing to this Agreement, you consent that Magento may provide you with such communications.