Digital Goods Supply Agreement

PLEASE READ THIS DIGITAL GOODS SUPPLY AGREEMENT CAREFULLY AS IT, TOGETHER WITH THE ORDER FORM IN WHICH IT IS REFERENCED, CONSTITUTES A LEGALLY BINDING AGREEMENT. BY SIGNING THE ORDER FORM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS DIGITAL GOODS SUPPLY AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS DIGITAL GOODS SUPPLY AGREEMENT, YOU MUST NOT SIGN THE ORDER FORM OR PURCHASE THE DIGITAL GOODS.

This Digital Goods Supply Agreement (“Agreement”), is entered into by and between MacPaw Way LTD, a legal entity duly organized and existing under the laws of the Republic of Cyprus, with the registered office at 25 Serifou, Allure Center 11, Office No. 11-12, 2nd Floor, 3046 Zakaki, Limassol, Cyprus, company registration No. 428214, VAT number - 10428214K (“Seller”), and the buyer, identified on the Order Form, that is purchasing Digital Goods (“Buyer”), together referred to as the Parties, and individually as the Party.

The Agreement is effective as of the date of the last signature on the Order Form (“Effective Date”).

If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions.

1. Supply of Digital Goods.
   1. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon receipt of the applicable fees from the Buyer, the Seller shall supply to the Buyer the assortment and quantity of Digital Goods as specified in the Order Form.
   2. The subscription type selected by the Buyer in the Order Form shall determine the period during which the relevant Digital Good provides access to the Software. Depending on the Product selected, the Seller may make available any of the following subscription types: (1) Monthly Subscription; (2) Annual Subscription; (3) three-month subscription; (4) six-month subscription; or (5) One-Time Purchase. The Seller reserves the right to offer additional subscription types at its sole discretion, as may be specified in the Order Form.
   3. Unless otherwise specified, each Digital Good grants access to the Software on one (1) device per activation code.
   4. Title to and delivery of the Digital Goods shall be effected upon receipt by the Seller of payment in full of the fees specified in the Order Form. Delivery shall be made electronically to the Сontact Email designated by the Buyer in the Order Form. Risk of loss, damage, or corruption of the Digital Goods shall pass to the Buyer upon successful transmission of the Digital Goods to the Contact Email, regardless of whether the Buyer has accessed or activated the Digital Goods at that time.
   5. The Buyer may use the Digital Goods solely for the purpose of providing access to the Software to End Users in accordance with the terms of this Agreement. The Buyer shall not resell the Digital Goods, in whole or in part, whether for commercial gain or otherwise.
   6. The Buyer acknowledges and agrees that End Users' access to and use of the Software is subject to their prior acceptance of and ongoing compliance with the applicable End User Agreement. The Seller shall have no obligation to provide or continue providing access to the Software to any End User who has not accepted the End User Agreement or who is in breach thereof.
   7. The Seller retains the right, in its sole discretion, to upgrade or modify the Software from time to time.
2. Price and Payments.
   1. The price payable by the Buyer for the Digital Goods shall be as specified in the applicable Order Form. Unless otherwise expressly stated in the Order Form, all prices are exclusive of any applicable taxes, duties, or levies. Buyer agrees to pay all applicable taxes levied by any tax authority, which shall be separately invoiced, excluding taxes based on the net income of Seller. All applicable taxes (including VAT, GST, digital services tax, or withholding tax) shall be calculated in accordance with the applicable law of the relevant jurisdiction and reflected in the Pro-Forma Invoice and Invoice (as defined below) issued on the basis of the applicable Order Form. Buyer shall provide to Seller any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability.
   2. Following execution of the applicable Order Form, the Seller shall issue a pro-forma invoice to the Buyer specifying the amount due, the payment details, and the applicable payment deadline ("Pro-Forma Invoice"). Unless otherwise stated in the Order Form, fees are due ten (10) days from the Pro-Forma date. The Pro-Forma Invoice shall serve as the basis for the Buyer's payment. Upon the funds being credited in full to the Seller's bank account, the Seller shall issue a formal invoice to the Buyer ("Invoice") in respect of the relevant Order Form. For the avoidance of doubt, the issuance of the Invoice is conditional upon the Seller's receipt of full payment as specified in the Pro-Forma Invoice.
   3. The form of payment is a wire transfer of funds to the bank account of the Seller. Payment is considered to have been made at the time of crediting the funds to the Seller's current account, according to the Seller's bank details specified in the relevant Pro-Forma Invoice.
   4. The parties agreed that the commission of the correspondent bank of the Seller is paid by the Seller, the commission of the bank-correspondent of the Buyer is paid by the Buyer.
   5. Except as otherwise set forth herein or in an Order Form, (i) fees are quoted and payable in United States dollars, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
   6. If any amount due is not received by the Seller from the Buyer within fifteen (15) days' notice of late payment, the Seller shall be entitled to receive the amount due plus interest thereon at a rate of 1.5% per month (or, if impermissible by applicable law, then the highest rate deemed permissible) on all amounts that are not paid on or before the due date. The Buyer shall also pay all of the Seller's reasonable costs of collection including, but not limited to, reasonable attorney's fees.
3. Intellectual Property Rights.
   1. For the avoidance of any doubt, the subject matter of this agreement is selling of the Digital Goods in the form of activation codes to the Software. The Software and all intellectual property rights associated therewith remain in the sole and exclusive ownership of the Seller. The Buyer will take all reasonable measures to protect Seller’s proprietary rights in the Software. Except as provided herein, Buyer is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, franchises or licenses with respect to the Software.
   2. Buyer shall not at any time, directly or indirectly, and shall not permit any End User to (i) permit any third party to access or use the Software except as permitted herein or in an Order Form, (ii) copy, modify or create derivative works based on the Software, (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Software, (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part, or (iv) access the Software in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Software.
   3. Seller shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Buyer, including End Users, relating to the operation of the Software.
4. Quality of the Digital Goods.
   1. The Seller undertakes to supply to the Buyer a high-quality Digital Goods.
   2. The Parties agree and acknowledge that:
      1. The high quality of the Digital Goods is the quality of the activation codes, with the help of which the End User will be able to start using the Software, specified in the Order Form;
      2. Low-quality Digital Goods are the inability of the End User to start using the Software, specified in the Order Form, with the help of activation codes provided by the Seller.
      3. Buyer agrees that its purchase of Digital Goods is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Seller regarding future functionality or features.
5. Supply Terms
   1. The Seller shall deliver the Digital Goods to the Buyer in the quantity specified in the applicable Order Form no later than five (5) business days from the date of receipt of payment in full.
   2. Acceptance by the Buyer of the Digital Goods will be deemed effective if no defect or issue has been identified and reported in writing to the Seller by the Buyer within three (3) days after receipt of the Digital Goods. Notwithstanding the foregoing, deemed acceptance shall not limit the Buyer’s right to claim replacement of Low-quality Digital Goods under Section 5.3 where the Buyer had no reasonable opportunity to objectively verify the quality of the Digital Goods prior to the expiry of the acceptance period.
   3. If the defects or issues were reported by the Buyer, then the Seller shall eliminate all deficiencies identified by the Buyer (whether by replacing the relevant Digital Good or by such other means as the Seller deems appropriate) not later than five (5) business days from the date of receipt by the Seller of the relevant claim, unless the Parties have agreed otherwise.
6. Non-Disclosure.
   1. Each party agrees to exercise at least the same degree of care to safeguard the Confidential Information of the other party as such a party would exercise to safeguard the confidentiality of its own Confidential Information, but not less than reasonable care. Each party agrees not to (i) disclose to any third party any Confidential Information of the other party or (ii) use the Confidential Information of the other party for any purpose not reasonably required for the performance of this Agreement. Notwithstanding the foregoing, the parties may disclose such Confidential Information to their respective legal counsel, financial advisors or potential or actual investors. Each party agrees that all persons having access to the Confidential Information of the other party under this Agreement will abide by the obligations set forth in this Section 6 (“Non-Disclosure”) pursuant to a written confidentiality agreement or as a condition of their employment. Each party agrees to notify the other party promptly of any unauthorized disclosure of the other party’s Confidential Information and to assist the other party in remedying any such unauthorized disclosure. A party may disclose the other party’s Confidential Information pursuant to a requirement of a governmental agency or law so long as such party provides the other party with notice of such required disclosure prior to any such disclosure and such party uses commercially reasonable efforts to prevent the disclosure, or if disclosed, the Confidential Information is disclosed only for the limited purpose specified. The Non-Disclosure obligations shall survive the termination of this Agreement.
7. Warranty.
   1. Each Party represents and warrants that it has full power and authority to enter into this Agreement and that the person signing this Agreement on its behalf is duly authorized to do so.
   2. The Seller represents and warrants that (i) it will perform its obligations under this Agreement in a professional and workmanlike manner, and in accordance with industry standards; (ii) performance of its obligations under this Agreement will comply with all applicable laws and regulations; and (iii) the performance of its obligations under this Agreement will not violate any agreements between Seller and third parties.
8. Term of the Agreement and Termination
   1. The term of this Agreement shall commence as of the Effective Date and continue for one (1) year unless earlier terminated as provided for herein. Upon expiration of the initial term, this Agreement shall automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal to the other party no later than 30 days prior to the end of the then-current term.
   2. Either party may terminate this Agreement upon thirty (30) days written notice of a material breach of this Agreement if such breach is not cured within such thirty (30) day period. Notwithstanding the foregoing, the Seller may terminate this Agreement immediately, upon written notice, for breach of Section 3, 6, or 7 of this Agreement. The Seller may immediately terminate this Agreement upon notice if the Buyer shall become insolvent or fails to pay its obligations as they arise or upon any proceeding being commenced by or against Buyer under any law providing relief to Buyer as debtor.
   3. Either party may unilaterally terminate this Agreement upon sixty (60) days written (including via email) notice. In this case, the Agreement shall be terminated on the 61st calendar day from the date of sending the relevant written (including by means of electronic communication) notice or from the date specified in the relevant notice. In the event of early termination hereof, the Parties shall fulfill all the obligations that exist at a time of early termination.
   4. Rights Upon Termination:
      1. After notice of termination but prior to the effective termination date, the Seller shall be entitled to (i) reject all or part of any orders received from Buyer after notice but prior to the effective termination date and (ii) require Buyer’s payment of all unpaid orders submitted before notice of termination. All Digital Goods shall be paid for in full prior to the supply.
      2. Within ten (10) days after the effective termination date, each party shall return or destroy, at its own expense and the other party’s instruction, any of the other party’s Confidential Information.
      3. The payment date of all monies due to the Seller shall automatically be accelerated so that they shall become due and payable on the effective termination date, even if longer terms had been provided previously.
      4. Neither Party shall incur any liability or compensation obligation whatsoever for any damage (including, without limitation, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any lawful termination of this Agreement by such party that complies with the terms of the Agreement whether or not such Party is aware of any such damage, loss or expenses.
9. Limitation of Liability.
   1. IN NO EVENT SHALL SELLER'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE AMOUNT OF MONEY PAID BY BUYER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. BUYER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY BUYER TO SELLER HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
   2. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, THE SELLER AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS ACTUALLY PAID TO THE SELLER BY THE BUYER PURSUANT TO THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; OR (II) FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (IV) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
10. Miscellaneous.
    1. Export Compliance. Each Party shall comply with all applicable export control laws and regulations, including those of the European Union, Canada, the United States, and any other jurisdiction relevant to the performance of this Agreement. Without limiting the foregoing: (i) each Party represents and warrants that it is not named on any governmental list of persons or entities prohibited from receiving exports, including any such list maintained by the U.S. government; and (ii) the Buyer shall not permit End Users to access or use the Software in any manner that would violate any applicable export embargo, prohibition, or restriction, including those imposed by the United States.
    2. Data Protection Compliance. Each Party shall comply with all applicable data protection and privacy laws, regulations, and regulatory guidance in connection with its processing of personal data of the other Party's personnel, including: (i) Regulation (EU) 2016/679 and any national implementing legislation in EU member states or other jurisdictions within the European Economic Area; (ii) Directive 2002/58/EC (the ePrivacy Directive); (iii) the UK General Data Protection Regulation and the UK Data Protection Act 2018, as applicable following the United Kingdom's departure from the European Union; (iv) the California Consumer Privacy Act (CCPA) and any other applicable U.S. federal or state privacy laws; (v) any other applicable data protection or privacy laws in any jurisdiction in which either Party operates or processes personal data, as well as any legislation that amends, supersedes, or replaces any of the foregoing.
    3. Independent Contractors. The relationship of Seller and Buyer established by this Agreement is that of independent contractors, and neither part is an employee, agent, partner or joint venturer of the other.
    4. Notices. All notices permitted or required under this Agreement shall be in writing (including electronically) to the addresses at the beginning of this Agreement, or e-mails of the relevant representatives and, if not electronically, shall be delivered in person, by confirmed facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, receipt of confirmed facsimile transmission or five (5) days after deposit in the mail, or 48 hours after the email is sent to the designated email addresses as set forth herein:
       1. Seller: [email protected] and [email protected];
       2. Buyer: Contact Email indicated on the Order Form.
    5. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
    6. Assignment. This Agreement may not be assigned, transferred, or otherwise disposed of by the Buyer, whether by operation of law or otherwise, without the prior written consent of the Seller. The Seller may freely assign, transfer, or delegate any or all of its rights and obligations under this Agreement, in whole or in part, including to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets, without the prior consent of the Buyer. Any purported assignment by the Buyer in violation of this clause shall be null and void.
    7. Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
    8. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
    9. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Republic of Cyprus.
    10. Dispute resolution. Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be Limassol, Cyprus. The language to be used in the arbitral proceedings shall be English.
    11. Entire Agreement. This Agreement (including all Exhibits) contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements, negotiations, proposals and communications between the parties with respect thereto and may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is duly executed by the authorized representatives of both Parties.
    12. E-signing. The parties hereto agree that facsimile signatures and/or e-signatures (i.e. PDF, scan, document exchange electronic systems or other electronic means) shall be as effective as if the originals of their signatures.
    13. Order of Precedence. In the event of any conflict or inconsistency between the terms of an Order Form and the terms of this Agreement, the terms of the applicable Order Form shall prevail to the extent of such conflict or inconsistency, unless the Order Form expressly states that the terms of this Agreement shall take precedence in respect of a specific provision.
    14. Changes to the Agreement. The Seller reserves the right to amend, modify, or update the terms of this Agreement at any time at its sole discretion by publishing a revised version at the URL specified in the Order Form. Such amendments shall become effective upon publication unless a later effective date is specified by the Seller. Notwithstanding the foregoing, the version of this Agreement in force as of the date of execution of the applicable Order Form shall govern the rights and obligations of the parties in respect of that Order Form. For the avoidance of doubt, the execution of a new Order Form following any amendment to this Agreement shall constitute the Buyer's acceptance of the version of the Agreement in force at the date of such new Order Form.
11. Definitions.The following terms shall have a defined meaning as used in this Agreement:
    1. "Annual Subscription" means a Digital Good in the form of an activation code that, upon redemption, grants the End User access to the Software for a period of one (1) year from the date of activation, subject to the applicable End User Agreement.
    2. “Confidential Information” means information that one party provides to the other hereunder that is either (i) marked or identified as "confidential" or with a similar legend at the time of disclosure, or (ii) by its nature or the circumstances of its disclosure would reasonably be considered confidential, regardless of whether it is expressly designated as such. Confidential Information shall also include the terms of this Agreement, except those that are specifically designated for public disclosure (i.e., press releases). Confidential Information of a party shall not include, however, data or information which: (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality; (iii) was disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement by the receiving party; (v) is furnished to a third party by the disclosing party without an obligation of confidentiality; or (vi) was independently developed by the receiving party without the benefit of Confidential Information received from the disclosing party.
    3. “End Users” means individuals who are authorized by Buyer to access and use the Software on behalf of Buyer, and who have been supplied Digital Goods by Buyer. Users may include employees, consultants, contractors, agents or any authorized users of Buyer.
    4. “End User Agreement” means Seller’s standard end user license agreement, terms of use, or terms of service governing the use of the respective Software by End Users, as published and updated from time to time at: https://macpaw.com/legal or https://setapp.com/terms-of-use.
    5. “Digital Good” means an activation code to the Software owned by Seller which needs to be used by End User to get access to the Software upon first use so that Software functions properly.
    6. "Monthly Subscription" means a Digital Good in the form of an activation code that, upon redemption, grants the End User access to the Software for a period of one (1) month from the date of activation, subject to the applicable End User Agreement.
    7. "One-Time Purchase" means a Digital Good in the form of an activation code that, upon redemption, grants the End User a perpetual right to use the version of the Software current as of the date of activation. A One-Time Purchase does not entitle the End User to receive major upgrades or newly introduced features released after the activation date, access to which may require a separate paid upgrade or the purchase of a new license.
    8. “Order Form” means the invoice or order form, as applicable, agreed to by the Parties in which this Agreement is referenced. The Order Form will include some or all of the following information: the name of Buyer, Buyer's address and billing information, the fees due from Buyer, and a breakdown of the Digital Goods ordered, including the product name and subscription type.
    9. “Software” means the software-as-a-service, owned by the Seller and access to which is possible by use of Digital Good.