To help you understand the Vendor Terms of Service, we’ve prepared a bullet-point list that summarizes some of the main ideas (yes, including rights, obligations, liabilities, and all that legalese!) covered in there.

IMPORTANT: The following bullet-point list is for convenience purposes only, in order to help you navigate (and hopefully, better understand) the Vendor Terms of Service. This bullet-point list is not a substitute for, or even a part of, the Vendor Terms of Service, whose terms and conditions constitute a legally binding contract. It is your responsibility to fully read those terms and conditions.

General

The agreement is published at https://freemius.com/terms/vendor/
You (the “Vendor”) must be of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old to access or use the Freemius service.
You must be the legal owner and posses all rights necessary for each of the products you register to Freemius. If you’re trying to open an account on behalf of another individual, please invite them to register to be the account owner.
Your products and content must not contain viruses, malware, spyware or similar malicious items. Nor can they be offensive, harassing, deceptive or abusive, or promote or contain violence or other illegal activities or content (like illegal drugs, pornography, impersonation of others, breaches of national security, etc.). And just as important, they must not infringe or violate any third party rights (including intellectual property rights). Bottom line: you are responsible for your products and content, not Freemius.
The agreement is between you and Freemius, Inc. You may not assign or transfer it without Freemius’ express prior written consent.
To better protect personal data, we are providing this Data Processing Addendum (DPA) to govern Freemius’ and your handling of personal data.
The agreement contains various clauses to limit and exclude Freemius’ liability, and it also contains indemnity protection for Freemius.
Please also check out Section 18 (Dispute Resolution), as it contains important rights, obligations, and limitations as to how you and Freemius are to handle any disputes between us.

Selling with Freemius

As a reseller, similar to Walmart®, we buy software licenses from you in a wholesale gradual discounted prices (check Exhibit A of the agreement), and sell them to customers based on the full-price (MSRP) you configure in the Freemius Dashboard. The more sales of your product(s) we generate the lower the discounted price can go (and grow your sales margin accordingly). After selling licenses at the worth of $5,000 the discounted price will be 7% (our margin).
You are not allowed to upload products which you do not own.
You grant Freemius a license to commercialize your product(s) (including re-selling those licenses) to customers. You also grant us other licenses – for example, to use and process your content.
You will receive your earnings once a month (around the 10th calendar day) for your total sales and renewals made up to the last calendar day of the month prior to the previous month.
The minimum payout amount is USD $100. If your earnings do not meet the minimum threshold, the earnings will be withheld and roll over and be payable in a subsequent payment cycle when the threshold (USD $100) will have been met.
We can send you the earnings via PayPal, Payoneer, or bank wires (SWIFT/IBAN). Each payout method incurs different fees (check Exhibit A).
As a reseller, Freemius handles consumer sales-related taxes (like VAT) for you. However, it’s your responsibility to pay any taxes or similar governmental charges on earnings paid to you by Freemius.
You are responsible for managing and handling customer refunds.
You are responsible for supporting your customers, not Freemius. If there are any issues relating to any of the Freemius mechanisms, you should contact us via [email protected] and we’ll help out, if the issue is indeed related to any of our services.
Check out Exhibit A to get a complete overview of the Gateway Fees, Payout Fees, Refund Fees, and Chargeback Fees.

Vendor Terms of Service

Last Updated: May 24, 2018

THESE TERMS AND CONDITIONS (THIS “Agreement”) CONSTITUTE A BINDING CONTRACT BETWEEN VENDOR (DEFINED BELOW) AND FREEMIUS, INC. (“Freemius”, “we”, “us” and “our”), THE PARTIES HEREIN MAY BE REFERRED TO INDIVIDUALLY AS A “Party” AND COLLECTIVELY AS THE “Parties”. BY ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date”):

  1. THIS AGREEMENT, AND
  2. OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.

IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.

As used in this Agreement “Vendor” means either you personally or, if you are entering into this Agreement on behalf of an entity (for example, if you are subscribing using an entity’s email domain), such entity, and in such case you represent that you have the authority to bind such entity to this Agreement.

You represent that you are of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to access or use Service. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the Service.
This Agreement (including any exhibits) represent the entire agreement between Freemius and Vendor with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Vendor and Freemius with respect to such subject matter. Vendor acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site (defined below). The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Vendor hereby irrevocably waives, to the maximum extent legally permitted, any Law applicable to you requiring that the Agreement be localized to meet Vendor’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.

Freemius reserves the right to make changes to this Agreement at any time by posting the changed Agreement at https://freemius.com/terms/vendor/. (We may – but are not obligated to – also provide notice through a pop-up or banner within the Service, by sending an email to any address Vendor you may have used to register for the Service, or through other similar mechanisms). Such changes will be effective ten (10) days after such posting, and Vendor’s continued use of the Service thereafter shall constitute Vendor’s acceptance of such changes. In such cases, we will also update the “Last Updated” date set forth above. Please check the above webpage regularly for any changes to this Agreement.

At Freemius’ sole discretion, any Freemius obligation hereunder may be performed (in whole or in part), and any Freemius right or remedy may be exercised (in whole or in part), by a Freemius Affiliate (defined below).

1. DEFINITIONS AND INTERPRETATION

This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.

Affiliate” means with respect to Freemius, any person, organization or entity controlling, controlled by, or under common control with, Freemius, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.

Authorized User” means an employee of Vendor that the Vendor authorizes to access and use the Service.

Content” means any text, data, information, files, images, graphics, sounds, videos, code, audio clips, links, and/or other similar materials.

Checkout” means the Service functionality that enables the purchase by Customers of Product Licenses.

Chargeback” means a circumstance where the applicable bank or financial institution refuses to settle the Customer Transaction, or otherwise charges back the Transaction Amount under the Customer Transaction.

Customer” means a natural or legal person that owns or operates a Digital Property (defined below) and that wishes to make a Product available to end users of such Digital Property.

Customer Transaction” means the transaction between Freemius and a Customer, pursuant to which Freemius resells a Product License to such Customer for the purpose of making the Product available on the corresponding Digital Property.

Digital Property” means a digital property or service (such as a website, browser extension, mobile app, etc.) owned or operated by a Customer.

Dashboard” means the administrative dashboard Feature that, inter alia, enables Vendor to upload Products (for onward licensing by Freemius) and set up plans and pricing, as well as monitor and manage Customer subscriptions, payments & refunds, coupons, affiliate marketers, reviews, licenses, and usage to/of the Products.

Data Processing Addendum” means Freemius’ then-current Data Processing Addendum (or DPA) available at: https://freemius.com/terms/dpa/.

Discount Percentage” means the discount percentage Freemius will receive from Vendor’s MSRP (defined below) under this Agreement when purchasing a Product License from Vendor. The Discount Percentage is based on a tiered approach (depending on the Vendor Total Gross, defined below), as specified in Exhibit A to this Agreement.

Feature” means any module, tool, functionality, or feature of the Service.

Freemius Content” means any Content (excluding Vendor Content) appearing or made available on or in the Service.

Gateway Fees” means the then-current payment processing fees charged by a Payment Gateway (defined below), on the Transaction Amount, and which charge is dependent on the payment method selection by the Customer (at the Checkout). Some of the Gateway Fees are further described in Exhibit A to this Agreement.

Intellectual Property” means any and all inventions, discoveries, improvements, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.

Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property, and includes without limitation patents, copyright and similar authorship rights, personal rights (such as moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, database rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.

Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.

MSRP” means the Vendor’s suggested retail price for Product Licenses, as configured by Vendor via the Dashboard.

Order Form” means any order form entered into between Freemius and Vendor for subscription to the Service, whether executed via an online web form or interface, or executed offline.

Payment Gateway” means a payment gateway provider (such as PayPal or Stripe) that is supported by the Service.

Personal Data” has the meaning given to it in our Data Processing Addendum.
Privacy Policy” means Freemius’ then-current privacy policy available at: https://freemius.com/privacy/.

Product” means any of Vendor’s proprietary software products or services (such as a WordPress plugin or theme, or Serviceware plugin) that Vendor uploads to the Service for onward commercialization by Freemius. References herein to “Product” shall be deemed to include any of its related documentation.

Product License” means a license to the Product.

Refund” means any refund of a Customer Transaction.

Service” means the online monetization, analytics, and marketing automation service, operated by Freemius’ proprietary platform and other Intellectual Property.

Site” means https://freemius.com/.

Transaction Amount” means the gross amount charged to, and collected by Freemius from, a Customer under a Customer Transaction. For the avoidance of doubt, the Transaction Amount includes Transaction Costs (defined below).

Transaction Costs” means the portions of the Transaction Amount, other than the Product License(s) price. Transaction Costs include, but are not limited to, Gateway Fees and Sales Taxes (each as defined below). Freemius shall be responsible for the remittance of Transaction Costs to third parties as applicable.

Update” means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the Service.

Vendor Content” means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Vendor.

Vendor Total Earnings” means the Vendor’s total Vendor Earnings accrued under this Agreement, for any and all Products.

Vendor Total Gross” means the Vendor’s total Transaction Amounts minus: (a) total Transactions Costs; (b) total Refunds; (c) total Chargeback amounts; and (d) total of any other return fees.

2. SERVICE ACCOUNT

In order to access and use the Service, Vendor must register for an account (“Account”) by submitting the information requested in the applicable web form or interface. If Vendor is an entity, it will need to set up an administrator’s Account (“Admin Account”) and a user Account for each Authorized User (each, a “User Account”). Vendor represents and warrants, on behalf of itself and its Authorized Users (if applicable), that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Freemius and Vendor, Vendor alone shall be responsible and liable for maintaining the confidentiality and security of its Account(s) credentials, as well as for all activities that occur under or in such Account(s). Vendor shall immediately notify Freemius in writing of any unauthorized access to, or use of, an Account, or any other breach of security. If applicable, Vendor must make each Authorized User aware of this Agreement and its provisions, prior to authorizing such Authorized User to create a User Account. But in any event, Vendor shall procure each Authorized User’s compliance with the restrictions and obligations in this Agreement, and shall be primarily responsible and liable for the acts and omissions of each Authorized User.

3. SUBSCRIPTION RIGHTS

Subject to the terms and conditions of this Agreement, Freemius grants Vendor a limited, non-exclusive, non-assignable, non-sublicensable, revocable right, during the Term (defined below), to access and use the Service solely for Vendor’s own internal business or personal use (the “Service Subscription”). Use of the Service must be in accordance with any Service-related user manuals (or similar documentation) that Freemius publishes via the Service.

To the extent Vendor has entered into an Order Form for the Service Subscription, and such Order Form specifies any quantity, location, Feature, duration or other limitations or conditions on the scope of the Service Subscription (such as limitations on the number of Authorized Users, if applicable), the Service Subscription shall be subject to such limitations and conditions. Each Order Form is hereby incorporated into, and made a part of, this Agreement by reference.

4. DATA AND PRIVACY

4.1.
General. Vendor Content received during the Account registration process will be processed by Freemius in accordance with the Privacy Policy. The Privacy Policy is hereby incorporated into, and made a part of, this Agreement by reference. Furthermore, Freemius reserves the right to automatically download Vendor Content to Freemius’ cloud-based database(s) for the purposes of backup and otherwise providing Vendor with the Service.
4.2.
Location Data. Certain Features may be dependent on data related to Vendor’s geographic location (“Location Data”), and using such Features constitutes Vendor’s consent to provide or to make its Location Data accessible to us. To the extent that we do collect Location Data, we shall use it in accordance with the Privacy Policy. If Vendor does not provide or make such Location Data accessible, then the Features may be limited or not operate.
4.3.
Data Processing Addendum. To the extent that Freemius, as part of processing Vendor Content in connection with the Service or performance under this Agreement, processes any Personal Data that is subject to the EU’s General Data Protection Regulation (the “GDPR”), the provisions of the Data Processing Addendum shall apply. The Data Processing Addendum is hereby incorporated into, and made a part of, this Agreement by reference. For Vendor’s located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission also apply to such processing. Vendor acknowledges, in all cases and under all data protection and data privacy Laws of the EU and EEA, that Freemius acts as the ‘data processor’ (or Processor, as defined in the Data Processing Addendum), and Vendor is the ‘data controller’ (or Controller, as defined in the Data Processing Addendum) of Vendor Content and any Personal Data therein.

5. USAGE RESTRICTIONS

As a condition to the Service Subscription, Vendor shall not do any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service or any Freemius Content, on any other server or wireless or Internet-based device; (b) sell, assign, transfer, lease, rent, sublicense, distribute, publicly perform, display or communicate, offer as part of a time-sharing, outsourcing or service bureau environment, or otherwise make available, the Service or Freemius Content; (c) modify, alter, adapt, arrange, or translate the Service or any Freemius Content (except to the extent permitted by any translations projects operated by Freemius); (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or any Freemius Content; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service or any Freemius Content; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (g) make a derivative work of the Service or any Freemius Content that was not specifically open-sourced by Freemius under an open source project, or use them to develop any service or product that is the same as (or substantially similar to) them; (h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service or any Freemius Content; (i) use the Service or any Freemius Content to infringe, misappropriate, or violate any third party’s Intellectual Property Rights, or any applicable Law (such as anti-spamming Laws), or to otherwise engage in any fraudulent activity; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any restrictions on scope of authorized use under an Order Form; (k) forge or manipulate identifiers in order to disguise the origin of any Vendor Content inputted or uploaded to, or transmitted through, the Service; or (l) take any action that imposes or may impose (as determined in Freemius’ reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

6. THIRD PARTY CONTENT AND SOURCES

The Service may present, or otherwise allow Vendor to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Freemius (such Content, “Third Party Content”). The Service may also enable Vendor to communicate with the related third parties. The display or communication to Vendor of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Freemius of such Third Party Content or third party, nor any affiliation between Freemius and such third party. Freemius does not assume any responsibility or liability for Third Party Content, or any third party’s terms of use, privacy policies, actions, omissions, or practices. Vendor should read the terms of use and privacy policy of any third party that Vendor interacts with before it engage in any such activity.

7. VENDOR CONTENT AND PRODUCTS

7.1.
Responsibility. As between Vendor and Freemius, Vendor is solely responsible and liable for (and agrees to hold harmless and release Freemius and all Freemius Affiliates from) all Vendor Content and Products, and for Freemius’ use of the foregoing, as well as for the consequences of inputting, uploading, or transmitting Vendor Content (including without limitation, for obtaining any licenses, permissions, consents, approvals, and authorizations from individuals appearing or disclosed therein) and Products, and for the way in which any Vendor Content and Products are used by others (including, without limitation, by Customer).

Similarly, Freemius does not assume and shall not have any responsibility or liability for any Customers or Digital Properties, including without limitation any of their respective terms of use/service, privacy policies, actions, omissions, or practices. Further, Vendor agrees to be solely responsible and liable for the performance of any Vendor obligations, and the exercise of any Vendor rights, that Vendor may have in respect of Customers and Digital Properties and the exercise of any rights under any contract it may have with a Customer. Without limiting the generality of the foregoing, as between Vendor and Freemius, Vendor is solely responsible and liable for providing Customers with any warranty, maintenance, support (or similar) services for any Products.

7.2.
Vendor Representations and Warranties. Vendor hereby represents and warrants that: (a) it owns and possesses all the rights necessary to make, have made, copy, modify, license, sell, offer to sell, market, export, import and distribute each of the Products on a worldwide basis, as well as to grant the Vendor Content License and the Reseller License (each as defined below); (b) neither the Products nor any Vendor Content infringe, misappropriate, or violate any third party’s Intellectual Property Rights, or any Law; (c) its Vendor Content wholly accurate and is not, and will not be, disparaging, libelous, threatening, offensive, harassing, omit any information, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; (d) neither the Products nor any of its Vendor Content will contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service or any Digital Property; and (e) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required for performing under this Agreement and for granting Freemius the rights and licenses (such as the Reseller License) granted under this Agreement.
7.3.
No Obligation by Freemius. Freemius has no obligation to accept, display, review or maintain any Products or Vendor Content. Freemius may, without notice, remove, suspend, disable, block and/or delete Vendor Content and Products in our sole discretion, including, without limitation, if we: (a) suspect or determine that Vendor is in breach of any provision of this Agreement, or has violated any Law; and/or (b) deem it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of Freemius, our users, Vendor, or the public.

8. FEATURES

8.1.
General. All references herein to the “Service” shall include its Features as well. Freemius reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to Vendor, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Freemius in its sole discretion. Moreover, if Freemius determines that Vendor is in breach of any provision of this Agreement, we reserve the right to block or suspend Vendor from certain Features. We make Features available because we believe it enhances the user experience of the Service; but Vendor acknowledges and agrees that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will either (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Freemius may in its sole discretion charge for new and modified Features and/or require additional Personal Data, provided however that: (a) in the case of a new Feature, it will be optional; and (b) in the case of a modified Feature, we will give Vendor sixty (60) days’ prior notice. Without limiting the generality of the foregoing, Vendor acknowledges that whereas Features may currently make the Service compatible for use with Vendor’s device or operating system, these Features may be removed or modified in the future.
8.2.
Beta Products. Freemius may from time to time make available, in “beta”, “pre-release” (or similar designation) mode, new versions of the Service, and/or new Features, that are still undergoing internal development and testing (each, a “Beta Product”). Beta Products may be time-limited, feature-limited, and/or functionality-limited. Freemius may also decide to only make a Beta Product available to closed list of users. If Freemius makes a Beta Product available to Vendor, Vendor may use it on the following conditions: (i) only for evaluation purposes; (ii) Vendor must comply with any specific guidelines issued by Freemius in respect of the Beta Product, which may include a requirement to provide Feedback (as defined below) and participate in surveys about the Beta Product; and (iii) Vendor must not publicize the fact that there is a Beta Product, nor show, display, or otherwise make available the Beta Product to any other person (which includes, without limitation, making such disclosures to traditional or social media). For the avoidance of doubt, the provisions of this Agreement that apply to the Service (such as the Usage Restrictions in Section ‎‎5, and the Disclaimers in Section ‎11) shall also apply to Beta Products.

9. UPDATES AND SUPPORT

9.1.
Updates. All references herein to the “Service” shall include the Updates we provide as well. Freemius may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies we may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Freemius in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Vendor, and Vendor consents to any such automatic updating or upgrading of the Service. In some cases, Vendor may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will either (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Freemius may in its sole discretion charge for Updates and/or require additional Personal Data, provided however that we will give Vendor sixty (60) days’ prior notice.
9.2.
Support. Freemius’ technical support for the Service is limited to whatever support is offered via the Service functionality, such as email support via [email protected] (“Freemius Support”). Other than the Freemius Support, Freemius is under no obligation to provide any technical support for the Service.

10. OWNERSHIP AND LICENSES

10.1.
Service and Freemius Content. Vendor acknowledges that the Service is or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Freemius and its licensors. As between Vendor and Freemius (and except for the Service Subscription), Freemius is the sole and exclusive owner of all Intellectual Property Rights in and to the Service and all Freemius Content, as well as any Enhancements (defined below) to or of the foregoing (regardless of authorship or inventorship). “Enhancement” means an improvement, customization, derivative work, adaptation, modification, or similar change.

For the avoidance of doubt, “Freemius” (and its respective logos) are trademarks of Freemius and/or Freemius Affiliates, and all other trademarks appearing on or in the Service are the trademarks of their respective owners.

10.2.
Vendor Content Ownership and Licenses. As between Vendor and Freemius, Vendor is the sole and exclusive owner of Vendor Content. Notwithstanding such ownership, Vendor hereby grants to each of Freemius and all Freemius Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels (now known or hereafter developed): (a) to process Vendor’s Vendor Content to perform under this Agreement, including without limitation to provide Vendor with the functionality of the Service and any technical support; and (b) to process Vendor’s Vendor Content (including, for clarity, Personal Data) and Vendor’s usage of the Service on an aggregated or otherwise anonymous basis, for the purposes of improving the Service, analytics, and/or generally for research and development ((a) and (b) collectively, the “Vendor Content License”). Vendor hereby represents and warrants that: it has obtained, and will maintain during and after any termination of this Agreement, all licenses, permissions, consents, approvals, and authorizations required to grant the Vendor Content License. The Vendor Content License shall survive any termination of this Agreement.
10.3.
Vendor Product Ownership and Licenses. As between Vendor and Freemius, Vendor is the sole and exclusive owner of its Products. Notwithstanding such ownership, Vendor hereby grants to each of Freemius and all Freemius Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees, including through affiliate programs related to the Service), irrevocable license, during the Term, to copy, distribute, publicly perform, publicly display, import, and otherwise commercialize the Products and Product Licenses to Customers via the Service (the “Reseller License“). For distributed (i.e., non-SaaS) Products, Freemius will only provide the Customer with a download link and license keys once payment of the Transaction Amount has been approved by the Payment Gateway. In connection with each Customer Transaction, Freemius may, in addition to any contract that Vendor enters into with the Customer (such as a EULA), impose its own terms and conditions on the Customer.
10.4.
Feedback. If Vendor provides Freemius with any ideas, suggestions, or similar feedback about performance of the Service or for improving the Service (“Feedback”), Vendor hereby grants to each of Freemius and all Freemius Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (now known or hereafter developed) (“Feedback License”). Vendor hereby represents and warrants that: (A) its Feedback does not, and will not, infringe, misappropriate or violate any third party’s Intellectual Property Rights, or any Law; and (B) it has obtained, and will maintain during and after any termination of this Agreement, all licenses, permissions, consents, approvals, and authorizations required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.

11. PAYMENTS

11.1.
Transaction Amount. The MSRP is determined by Vendor, and may be changed by Vendor at any time (via the Dashboard). The Transaction Amount is determined by Freemius. Vendor acknowledges and agrees that Product License renewal prices are determined at the time of the original Customer Transaction (i.e., at Checkout), and such renewal pricing will apply regardless of whether or not the MSRP is changed by Vendor.
11.2.
Transaction Costs. From the Transaction Amount, Freemius will collect and remit: (a) to the proper authorities any required sales tax, value added-tax (VAT), or similar tax or other government fees that are based on Freemius’ sale of Product Licenses (collectively, “Sales Taxes”); and (b) to the applicable third parties (such as Payment Gateways) any other Transaction Costs (such a Gateway Fees). For the avoidance of doubt, Transaction Costs will not be included in the calculation of Vendor’s account balance, and shall not be payable to Vendor.
11.3.
Vendor Earnings. For each Customer Transaction, Freemius shall pay to Vendor an amount equal to (each such amount, the “Vendor Earning“):
[MSRP – MSRP x Discount Percentage – Gateway Fees and other Transactions Costs (excluding Sales Taxes) – Refunds – Chargeback Fees]
11.4.
Vendor Earnings Payout. On the first (1st) day of every calendar month, Freemius will execute a process calculating the total Customer Transactions made up to the last calendar day of the month prior to the previous month just ended, and calculating the aggregate Vendor Earnings payable for such Customer Transactions. Following such calculations, such Vendor Earnings will be distributed to Vendor on or around the tenth (10th) calendar day of the month in which such calculations are made. For the avoidance of doubt, Vendor shall be solely responsible and liable for paying any taxes or similar governmental charges on Vendor Earnings paid to Vendor. If a Customer Transaction’s payment requires currency conversion, Freemius will determine an exchange rate at the time the Vendor Earnings payout is processed. Vendor Earnings will only be distributed to Vendor in a given month, if the amount in question is at least One Hundred US Dollars (US$100); otherwise, the Vendor Earnings shall be withheld and roll over and be payable in a subsequent payment cycle when the aforesaid threshold has been met. Freemius shall, at its sole discretion, be entitled to recover from Vendor, or to set off against future amounts owing by Vendor, payments that are charged back or disputed by the Customer, and Freemius shall not be liable if Customers continue use of the Product.
11.5.
Refunds. Except as permitted otherwise in this Agreement, Vendor shall be solely responsible for determining and administering, via the Dashboard, any Refunds under a Customer Transaction. In the event of a Refund, Freemius will refund the Customer the Transaction Amount, and the Refund amount shall be comprised of the amount Freemius credited to the Vendor for the Customer Transaction, plus Freemius’ Discount Percentage deduction, plus any other funds that, in Freemius’ sole discretion, should be returned to the Customer; provided, however, that if the Refund was executed thirty (30) days or more after the Customer Transaction date, Vendor shall be responsible for the entire Refund amount, and Freemius may deduct (from future payment to Vendor) an amount equal to the Discount Percentage deduction under such Customer Transaction to which the Refund applies.
11.6.
Chargebacks. In the event of a Chargeback: (a) Vendor shall be responsible for the entire Chargeback amount, and Freemius may deduct (from future payment to Vendor) an amount equal to the Discount Percentage deduction under such Customer Transaction to which the Chargeback applies; and (b) Freemius may deduct (from future payment to Vendor) any Gateway Fees charged for such Chargeback. If Freemius determines, in its sole discretion, that Vendor has an excessive Chargeback rate, Freemius reserves the right to temporarily suspend distributing all or a portion of Vendor’s Product(s).
11.7.
Retention of Funds. Freemius may, in its sole discretion, retain some or all of the funds that are in Vendor’s account if Freemius determines they will be necessary to cover future Chargebacks or Refunds, charges against the account, or other liabilities Vendor may owe to Freemius. Freemius may also retain some or all of the funds if Freemius believes that the funds resulted from fraudulent transactions or involve other activities that are otherwise illegal in a jurisdiction in which the Products are offered, or if Freemius believes any of the Products violate any of Vendor’s representations, warranties or covenants hereunder. Freemius will only retain those amounts that it determines to be reasonable under the circumstances. Freemius shall communicate to Vendor the amounts retained and the reason for retention of funds. Freemius will keep any retained amounts only for a reasonable time as determined in Freemius’ sole discretion, and will promptly pay over to Vendor any remaining retained amounts after such reasonable time elapses. Notwithstanding any funds retained by Freemius under such circumstances, Vendor agrees to pay Freemius, upon demand, funds owed to Freemius due to Refunds and Chargebacks.
11.8.
Payment Currency. Unless otherwise agreed in writing, all payments between both Parties will be made in US Dollars ($USD), with Vendor responsible for costs of conversion from local currency(ies) into US Dollars ($USD).
11.9.
Invoicing. Freemius is authorized to invoice Customer, collect payment from Customer and, in Freemius’ sole discretion, issue Refunds to a Customer’s purchase and debit the amount against Vendor’s account, in which case Freemius shall have no resulting liability to Vendor if Freemius determines the Customer is credibly threatening a Chargeback or Vendor fails to respond to communications from the Customer after Freemius twice attempts to contact Vendor regarding such Customer Transaction.
11.10.
Subscription Fees. The Service Subscription may be subject to recurring fees (“Subscription Fees“). Unless expressly stated otherwise in an Order Form: (a) all Subscription Fees are stated, and are to be paid, in US Dollars; (b) all Subscription Fees are payable in advance; (c) all Subscription Fees are non-refundable, and are without any right of set-off or cancellation; and (d) any Subscription Fees not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (a) the rate of one and a half percent (1.5%) per month; and (b) the highest amount permitted by applicable Law. Subscription Fees payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Freemius’ net income. In the event that Vendor is required by any Law applicable to it to withhold or deduct taxes for any Subscription Fees, then the amounts due to Freemius shall be increased by the amount necessary so that Freemius receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Vendor not made any such withholding or deduction.

12. DISCLAIMERS

12.1.
THE SERVICE, ANY FREEMIUS CONTENT, AND ANY THIRD PARTY CONTENT ARE PROVIDED AND MADE AVAILABLE TO VENDOR ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY FREEMIUS AND ITS LICENSORS AND SUPPLIERS.
12.2.
IN ADDITION, NEITHER FREEMIUS NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
  1. REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SERVICE OR SUCH FREEMIUS CONTENT OR THIRD PARTY CONTENT;
  2. THAT VENDOR’S USE OF, OR RELIANCE UPON, THE SERVICE OR ANY FREEMIUS CONTENT OR THIRD PARTY CONTENT WILL MEET ANY REQUIRMENTS OR EXPECTATIONS;
  3. THAT THE SERVICE OR ANY FREEMIUS CONTENT OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED; OR
  4. REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.

13. LIMITATION OF LIABILITY

13.1.
IN NO EVENT SHALL FREEMIUS, ANY FREEMIUS AFFILIATE, OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
  1. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
  2. ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
  3. ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
  4. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
13.2.
THE COMBINED AGGREGATE LIABILITY OF FREEMIUS AND ALL FREEMIUS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED: (A) THE AMOUNTS ACTUALLY REALIZED BY FREEMIUS PURSUANT TO THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTHS THIS AGREEMENT IS IN EFFECT, MINUS (B) THE SUM OF ALL AMOUNTS PAID TO OR ON BEHALF OF VENDOR, ALL TRANSACTION COSTS, AND ALL REFUNDS OR CHARGEBACKS TO CUSTOMERS WITH RESPECT TO THE CUSTOMER TRANSACTIONS GENERATING SUCH AMOUNT.
13.3.
THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF FREEMIUS OR A FREEMIUS AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
13.4.
The Service is intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by Law, Vendor hereby acknowledges and agrees that consumer Laws shall not apply to this Agreement. Furthermore, some jurisdictions’ Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to Vendor, such exclusions and limitations shall not apply. Furthermore, nothing in this Agreement shall be deemed to exclude or limit liability for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation.

14. INDEMNIFICATION

If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Freemius, a Freemius Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an “Indemnitee”), and it is based upon or arises from:

  1. Vendor’s use of the Service, including without limitation Vendor’s integration of the Service with any Digital Property;
  2. Vendor’s breach under any contract it may have with a Customer; and/or
  3. Vendor’s breach of any provision of this Agreement (such as any of its representations and warranties)

(each of the foregoing, an “Indemnity Claim”) then, upon written request by Freemius (to be decided in our sole discretion), Vendor agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Freemius reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Vendor agrees to reasonably cooperate with Freemius’ defense activities at Vendor’s own cost and expense; and (d) Vendor shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).

In addition, and regardless of whether (or the extent to which) Vendor controlled or participated in the defense and/or settlement of an Indemnity Claim, Vendor agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).

15. TERM AND TERMINATION

15.1.
Term. This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance with this Agreement (unless an Order Form sets out a limited Subscription Service period, in which case this Agreement shall terminate upon expiration of such period) (the “Term”). If Vendor registered for a free trial of the analytics Feature only (“Free Trial”), then the Service Subscription term will expire upon the end of the Free Trial period stated during the registration process (and if not stated, then a default of 60 days); provided, however, that if Vendor continues to use the Service following expiration of the Free Trial, the Service Subscription shall continue on a non-Free Trial basis and Vendor will be required to activate the monetization and reselling Features of the Service.
15.2.
Termination for Convenience. Freemius reserves the right to terminate this Agreement, and/or to otherwise modify, suspend, or discontinue the Service, for any reason whatsoever, at any time, by giving ninety (90) days’ prior written notice to Vendor. Vendor reserves the right to terminate this Agreement for any reason whatsoever, at any time, by giving thirty (30) days’ prior written notice to Freemius. Except for Post-Termination Obligations (defined below), Freemius will have no responsibility or liability to Vendor for any termination, modification, suspension, or discontinuance pursuant to this Section 15.2 (Termination for Convenience).
15.3.
Termination for Cause. Each Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party commits a material breach under this Agreement; and/or (b) upon the occurrence of any of the following events in respect of the other Party: (i) a receiver is appointed for it, which appointment is not dismissed within sixty (60) days; (ii) it makes a general assignment for the benefit of its creditors; (iii) it commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) it is liquidating, dissolving or ceasing normal business operations. Except for Post-Termination Obligations (which Freemius may, in its sole discretion, elect not to apply or provide, in whole or in part, in the event Freemius terminates under this Section 15.3 (Termination for Cause)), Freemius will have no responsibility or liability to Vendor for any termination pursuant to this Section 15.3 (Termination for Cause).

16. CONSEQUENCES OF TERMINATION; SURVIVAL

16.1.
Post-Termination Obligations. Following termination of this Agreement: (a) any Vendor Earnings payable to Vendor’s Account shall continue to be paid out by Freemius, as specified in this Agreement; and (b) the Dashboard in Vendor’s Account will remain active and accessible to Vendor and Freemius for the sole purpose of managing existing Product Licenses (such as processing subscription renewals and providing support) for the duration of their respective terms (but, for the avoidance of doubt, Freemius shall not be required to process any new Customer Transactions). The foregoing (a) and (b) shall be referred to collectively as the “Post-Termination Obligations“.
16.2.
Consequences of Termination. Upon termination of this Agreement, and except for the Post-Termination Obligations: (a) the Service Subscription will automatically terminate and be deemed revoked, and Vendor must immediately cease use all of the Service; (b) Freemius may, at any time, require Vendor to remove any reference to Freemius on Vendor’s site, including hyperlinks from all online media and all printed media, and marketing collateral and print advertising; (c) Vendor shall pay all outstanding Subscription Fees; (d) Vendor’s Account(s) will be disabled; and (e) the Reseller License will automatically terminate. Furthermore, following termination Freemius may retain a reasonable reserve from the funds collected from Customer Transactions executed after termination for up to three (3) months to cover future Chargebacks and Refunds. All or a portion of this reserve will be paid to Vendor after termination when deemed appropriate by Freemius, and any remaining balance paid on the first regular payment date after the expiration of the three (3) month period.
16.3.
Survival. Sections ‎‎10 (Ownership) through ‎‎19 (Miscellaneous) shall survive any termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

17. GOVERNING LAW

This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are hereby disclaimed.

18. DISPUTE RESOLUTION

18.1.
Mandatory, Bilateral Arbitration. VENDOR AND FREEMIUS AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT (EACH, A “Dispute”) SHALL BE RESOLVED ONLY BY FINAL AND BINDING BILATERAL ARBITRATION, except that each party retains the right to bring an individual action in a small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights. This agreement to arbitrate is intended to be broadly interpreted.

  1. Arbitration Rules and Governing Law
  2. Notwithstanding Vendor’s and Freemius’ agreement that New York law governs this Agreement and its validity, interpretation and application, Vendor and Freemius hereby further agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
    Unless Vendor and Freemius expressly agree otherwise in writing in respect of a Dispute, the arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to JAMS Streamlined Arbitration Rules and Procedures (“JAMS Streamlined Rules”), as modified by this Agreement (that is, the terms of this Section ‎17 govern if they conflict with any of the JAMS Streamlined Rules), and consistent with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (“JAMS Consumer Fairness Standards”). The arbitrator must honor the terms and conditions of this Agreement (including without limitation all liability exclusions and limitations), and can award damages and relief, including any attorneys’ fees authorized by Law. VENDOR AGREES THAT, BY ENTERING INTO THIS AGREEMENT, VENDOR AND FREEMIUS ARE HEREBY EACH IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION (OR OTHER CLASS-WIDE PROCEEDING).
    Notwithstanding JAMS Streamlined Rule 8(b), Vendor and Freemius agree that any dispute as to the arbitrability of a Dispute brought by either Vendor or Freemius shall be resolved by a court of competent jurisdiction.

  3. No Class Arbitrations
  4. THIS ARBITRATION AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF THE JAMS STREAMLINED RULES, (OR OTHER PROCEDURES OR RULES OF JAMS) WOULD. RATHER, VENDOR AND FREEMIUS ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS. FURTHER, AND UNLESS VENDOR AND FREEMIUS EXPRESSLY AGREE OTHERWISE IN WRITING IN RESPECT OF A DISPUTE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.

  5. The Arbitrator’s Decision
  6. The arbitrator will render an award in accordance with JAMS Streamlined Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between Vendor and Freemius in any court of competent jurisdiction in a proceeding to vacate or enforce an arbitration award, VENDOR AND FREEMIUS HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the plaintiff/claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If Vendor prevails in arbitration Vendor will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable Law. Freemius will not seek, and hereby waives all rights Freemius may have under applicable Law, to recover attorneys’ fees and expenses if Freemius prevails in arbitration, unless Vendor asserts a frivolous claim.
    The arbitrator’s decision and award is final and binding, with some exceptions under the FAA.

  7. Location and Fees
  8. Unless Vendor and Freemius expressly agree otherwise in writing, the arbitration will take place in-person at the following locations: (a) if Vendor is a resident of a country in North America, Central America or South America, the arbitration will take place in New York City, New York, USA; or (b) if Vendor is a resident of any other country in the world, the arbitration will take place in Tel Aviv-Jaffa, Israel. In the event JAMS indicates that it is unable to provide, or arrange for, an arbitrator in Israel, Vendor agrees that the arbitration will be held in New York City, New York, USA.
    If Vendor initiates an arbitration for a Dispute, Vendor will be required to pay $250 of the fee required to initiate the arbitration and Freemius will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator’s services; Vendor will remain responsible for its respective costs relating to counsel, experts, witnesses, and travel to the arbitration.
    If Freemius initiates an arbitration for a Dispute, Freemius will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services; Vendor will remain responsible for its costs relating to counsel, experts, witnesses, and travel to the arbitration.

  9. Small Claims Court
  10. Notwithstanding the foregoing, either party may bring an individual action in a small claims court for Disputes within the scope of such court’s jurisdiction. This agreement to arbitrate does not preclude Vendor from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the Law allows, seek relief against Freemius on Vendor’s behalf.

18.2.
Opting Out of this Mandatory Arbitration. Vendor can decline this agreement to arbitrate by contacting [email protected] within thirty (30) days of the Effective Date and stating that Vendor declines this arbitration agreement. Furthermore, and notwithstanding the provisions regarding modification of the Agreement, if Freemius changes this Dispute Resolution Section after the Effective Date (or the date Vendor accepted any subsequent changes to this Agreement), Vendor may reject any such change by providing Freemius written notice of such rejection to [email protected] within thirty (30) days of the date such change became effective, as per the terms of this Agreement. In order to be effective, the notice must include Vendor’s full name and clearly indicate its intent to reject the change(s) to this Dispute Resolution Section. By rejecting such change(s), Vendor is agreeing that it will arbitrate any Dispute between Vendor and Freemius in accordance with the provisions of this Dispute Resolution Section as of the Effective Date (or the date Vendor accepted any subsequent changes to this Agreement), unless Vendor declined this arbitration agreement in the manner described above.

18.3.
Limitation on Claims. Regardless of any Law to the contrary, any claim or cause of action arising out of, or related to, this Agreement must be filed within one (1) year after such claim or cause of action arose, or else Vendor agrees that such claim or cause of action will be barred forever.

18.4.
Confidentiality of Disputes. All aspects of the arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only the extent) otherwise required by applicable Law. This paragraph shall not prevent a party from submitting to a court of competent jurisdiction any information necessary to enforce an arbitration award, or to seek equitable relief.

19. MISCELLANEOUS

19.1.
Assignment. Freemius may assign this Agreement (or any of its rights and/or obligations hereunder) without Vendor’s consent, and without notice or obligation to Vendor. This Agreement is personal to Vendor, and Vendor shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Freemius’ express prior written consent. Any prohibited assignment shall be null and void.
19.2.
Third Party Software. The Service may include third party software components, as well as proprietary components (such as the Service’s SDK component that is applied to the Product) that are subject to open source licenses and/or notices (“Third Party Software” and “Third Party Software Terms and Notices”, respectively). Freemius will comply with any valid written request submitted by Vendor to Freemius for exercising any rights Vendor may have under such Third Party Software Terms and Notices. This Agreement is not intended, and shall not be construed, to derogate from any rights Vendor may have under such Third Party Software Terms and Notices, and to the extent of any conflict between a provision of this Agreement and Third Party Software Terms and Notices, the latter shall prevail. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by Freemius in this Agreement concerning the Service (if any), are made by Freemius and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software.
19.3.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted or reformed (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
19.4.
Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
19.5.
Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Vendor, emails will be acceptable; for waivers by Freemius, the writing must be duly signed by an authorized representative of Freemius), and shall be valid only in the specific instance in which given.
19.6.
Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
19.7.
Notices. Vendor agree that Freemius may send Vendor notices by email, via Vendor’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Vendor, Vendor agrees to send all notices to Freemius, to [email protected]
19.8.
No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Freemius Affiliates, Freemius’ licensors and suppliers, and Indemnitees), there shall be no third-party beneficiaries of or under this Agreement.
19.9.
Affiliate Marketing System. Vendor may choose to utilize setup access to the Freemius Affiliate Platform Marketing System by accepting the applicable terms and conditions, including fees, after Vendor’s Account is active. In using this system, Vendor is agreeing to relationships with third party marketers that will advertise Vendor’s Products in exchange for commissions on sales they generate (“Third Party Marketers”). Vendor will be liable for those payments, and authorizes Freemius to calculate and remit payments owed to Third Party Marketers for sales generated through the Freemius Affiliate Platform Marketing System from Vendor’s Account directly to those Third Party Marketers. Furthermore, Vendor shall be solely responsible and liable for properly collecting and remitting any taxes payable in connection with Third Party Marketers, and for otherwise complying with all Laws related to affiliate marketing. Freemius takes no responsibility over the Third Party Marketers recruiting process, the way they market the Vendor Product(s), etc. Freemius will not be liable for any illegal activities by Third Party Marketers and preserve the right to ban any marketer on its sole discretion in case of any activity that is considered illegal.
19.10.
No Legal Advice. Vendor acknowledges and agrees that Freemius does not provide (and nor are any Features intended to provide) any advice or any recommendation with respect to any Laws or other requirements (such as contractual requirements Vendor’s licensors and suppliers) applicable to Vendor’s use of the Service.
19.11.
U.S. Government Rights. The Service is “commercial computer software” and the documentation is “commercial computer software documentation”, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Vendor is an agency, department, employee or other entity of the United States Government, then Vendor’s access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
19.12.
Export Compliance. Vendor represents and warrants (on behalf of itself and its Authorized Users, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Vendor named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Vendor breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Vendor agrees to indemnify and hold harmless Freemius and all Freemius Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Freemius or a Freemius Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Vendor and/or Freemius, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
19.13.
Force Majeure. Freemius shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Freemius’ reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Service shall not be deemed within Freemius’ reasonable control.

Exhibit A

PART A. DISCOUNT PERCENTAGE

For all other Customer Transactions, the Discount Percentage shall be as per the table below. Freemius may, upon thirty (30) days’ prior written notice to Vendor, modify the below Discount Percentages.

Discount Percentage
Vendor Total GrossDiscount Percentage
Initial USD $1,000Seven percent (27%)
USD $1,000 – USD $5,000Seventeen percent (17%)
Above USD $5,000Seven percent (7%)

PART B. GATEWAY FEES

The following Gateway Fees are charged per each Customer Transaction. Such Gateway Fees are subject to change, as determined by the corresponding Payment Gateway.

Gateway Fees
Stripehttps://stripe.com/us/pricing
Customer Transactions made via credit card2.9% + 30 cents (USD $0.30) per Customer Transaction
ChargebacksUSD $15 per Chargebac
RefundsUSD $0
PayPalhttps://www.paypal.com/us/webapps/mpp/merchant-fees 
Customer Transactions made via PayPal (for US PayPal accounts)2.9% + 30 cents (USD $0.30) per Customer Transaction
Customer Transactions made via PayPal (for non-US PayPal accounts)See: https://www.paypal.com/us/webapps/mpp/merchant-fees
ChargebacksUSD $20 per Chargeback
Refunds30 cents (USD $0.30) per Refund

PART C. PAYOUT FEES

Payout fees charged for payments made by Freemius to Vendor via:

Payout Fees
PayPalhttps://www.paypal.com/us/webapps/mpp/merchant-fees#paypal-payouts
PayPal Mass Pay (where Vendor’s PayPal account is US-based or Canada-based)

USD $1 for every USD $10,000 (or part thereof) where the Vendor’s PayPal account is US- or Canada-based.

(For example, a USD $5 payout fee will be charged when the payment to Vendor is USD $45,000.)

PayPal Mass Pay (where Vendor’s PayPal account is not US-based or Canada-based)Two percent (2%) of the payment amount, up to a maximum of USD $20.
Payoneerhttps://www.payoneer.com/fees/
PayoneerUSD $0
Bank Wires / SWIFT / IBAN 
Bank wire (international non-USD wires)A currency conversion fee of up to one percent (1%) above the real-time market’s currency conversion rate at the time of the payment.
Bank wire (international USD wires)USD $50
Bank wire (USD wires in the US)USD $25