The following additional terms (“Additional Terms”) apply to Order Forms placed with Fivestars for Applova Services:

Suspension or Termination of Services. Fivestars may direct that Applova suspend or terminate Merchant’s access to the Services if Merchant fails to timely pay amounts due under an Order Form. In addition, Fivestars may terminate Merchant’s access to the Services upon 10 days written notice for any reason, including if Fivestars ceases to be a licensed reseller of the Services.

Indemnity. Merchant will defend (at its sole expense) any third party claims, suits, actions, demands, threats, allegations or other legal proceedings brought against Fivestars and each of its affiliates, and their respective directors, officers, employees, representatives, and agents arising out of (a) Merchant’s use of the Services, or (b) Merchant’s breach of the EULA, and Merchant will pay (i) any settlements entered into between Fivestars or Merchant and the third party claimant, or (ii) judgments awarded to the third party claimant by a court of competent jurisdiction. Fivestars shall (x) provide Merchant with prompt written notice of any claim, (y) subject to Fivestars’ right to approve or reject controlling counsel, grant Merchant control of the defense and settlement of the claim, and (z) provide reasonable information and assistance to Merchant in the defense or settlement of the claim at Merchant’s expense.

Warranty Disclaimer. FIVESTARS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OR CONDITION OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES. MERCHANT AGREES THAT ITS USE OF THE SERVICES IS SOLELY AT ITS OWN RISK. FIVESTARS MAKES NO WARRANTIES OR PROMISES OF ANY KIND THAT MERCHANT WILL REALIZE CERTAIN RESULTS FROM THE APPLOVA SERVICES.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF ACTION (E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) FIVESTARS SHALL NOT BE LIABLE TO MERCHANT OR TO ANY OTHER PARTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS ORDER FORM FOR (A) ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION), OR (B) ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY MERCHANT TO FIVESTARS UNDER THIS ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER OR NOT FIVESTARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

General Provisions. Merchant may not assign an Order Form or any of its rights or delegate any of its duties under an Order Form without Fivestars’ prior written consent, except to a successor to all or substantially all of its business or assets; Fivestars may assign the Order Form and/or any of its rights and/or delegate any of its duties under an Order Form without consent. Each Order Form contains the entire understanding of the parties with respect to the transactions and matters contemplated, and supersedes all previous communications and understandings (whether oral or written). All notices required hereunder will be provided via email. Notices to Fivestars must be sent to [email protected] or another email address provided to Merchant in writing; notices to Merchant will be sent to the email provided on the Order Form or another email address provided to Fivestars in writing. Notices will be considered to have been delivered once sent. The Order Form, together with these Additional Terms, represents the entire agreement between the parties with respect to its subject matter; any additional or conflicting conditions, printed or otherwise, appearing on any orders, copy instructions or other documents will be of no effect. The Order Form shall be governed by and construed in accordance with the laws of the State of California, without regard for conflict of law principles. The parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California. It is the express wish of the parties that the Order Form, these terms and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.