Marketplace Provider Agreement

Updated: December 14, 2020. Effective January 14, 2021

NOTE:LUMEN MARKETPLACE IS AVAILABLE FOR PROVIDERS ACCEPTED BY LUMEN PRIOR TO THE DATE OF THIS AGREEMENT AND CURRENT SUBSCRIBERS AND THEIR EXISTING SERVICES ONLY.

This Marketplace Provider Agreement (“Agreement”) describes the relationship between the Provider (“Provider” or “you”) and CenturyLink Communications, LLC d/b/a Lumen Technologies Group (“Lumen”) and its affiliates (“we” or “us” or “Lumen”“Lumen”) and governs your publication of any Product (as defined below) within Lumen Marketplace.

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND LUMEN. BY REGISTERING FOR, ACCESSING, AND/OR MAKING AVAILABLE ANY PROVIDER PRODUCT ON LUMEN MARKETPLACE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, AND ANY ADDITIONAL POLICIES, TERMS, CONDITIONS OR GUIDELINES (AND ANY AMENDMENTS THERETO) REFERENCED AND/OR INCORPORATED BY REFERENCE HEREIN (COLLECTIVELY, THE "TERMS").

1. The Service; Eligibility

1.1 The Lumen Marketplace is a forum through which Provider Products are made available by a Provider to other Lumen Cloud Customers. Lumen’s role is to provide the technology and services to enable the Marketplace and to process the related purchases, returns, and chargebacks to you. You appoint Lumen to act as your agent for these purposes, and you acknowledge that you, not Lumen are the seller, provider, distributor, and licensor of Provider Products to Subscribers.

1.2 The Lumen Marketplace is available only to valid Lumen Cloud Customers in good standing who have not previously been suspended or removed from the Lumen Cloud Service. Lumen’s initial and continued acceptance of this Agreement from Provider is subject to Provider’s assertion and continued agreement that it does not and will not resell Lumen’s Cloud services. Lumen may require you to provide additional registration information to verify your identity. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide, including checking commercial databases.

2. Provider Obligations & Responsibilities.

You may list your Provider Product in the Lumen Marketplace subject to the following:

2.1 Review of Products. You must maintain your Provider Product in accordance with the Marketplace Provider Program Guide, and Lumen may accept or reject it for any reason. You will not be permitted to list or continue to list your Provider Products unless and until you comply with all requirements specified by Lumen. You are responsible for evaluating and testing your Provider Product to confirm that it complies with this Agreement, all applicable Policies and operates properly with Lumen Cloud. We reserve the right to continue to review and test your Provider Product listed in the Lumen Marketplace at any time, including for security-related concerns and to check the accuracy of descriptions and other materials included with your Provider Product. You will cooperate with our review and testing.

2.2 Provider Responsibilities. You are responsible for your Provider Product and the seller of record for your Provider Product. You must (i) specify separate terms and conditions (including applicable licensing rights and third party software terms), restrictions on use and a Privacy Statement applicable to all Provider Products listed on Marketplace in accordance with applicable laws; (ii) establish the User Fees to be charged for use of the Provider Product and the terms/parameters associated with a Free Trial Product, if any; and (iii) ensure that the Lumen Cloud Customer who are purchasing Provider Products continue to authorize Lumen, its affiliates, and its third-party payment processors to charge and invoice for the Provider Products selected so long as they continue use of the Services on Lumen Cloud; (iv) designate different product SKUs, metering methodology, and ensure geographic regions and supported currencies are within any published Lumen guidelines; and (v) establish procedures for technical support and dispute handling and requests related to Provider Products (collectively, the “Subscriber Agreement”). We have no obligation to provide any support, technical or otherwise, to any Subscriber. You acknowledge and agree that you are solely responsible for ensuring that each Subscriber is provided with a Subscriber Agreement and that each Subscriber accepts the terms of the Subscriber Agreement in a manner that creates a legally enforceable contract between you and the Subscriber. You further acknowledge that any and all issues and/or disputes and/or support requests arising out of or related to the Provider Products is solely between you and the Subscriber. You acknowledge and agree that Lumen has no control over and that any permission to list does not guarantee the legality of terms or the quality, safety or legality of items advertised, the truth or accuracy of any listing or third party software imbedded within such Provider Products and Lumen assumes no liability or responsible therefrom. Lumen is not a party to the agreement between Provider and the Lumen Cloud Customer who elects to use the Provider Product (hereinafter the “Subscriber”).

2.3 Maintenance and Removal of Your Provider Product. You will ensure that all software contained in your Provider Product is kept up to date with current bug fixes and patches. If Lumen determines that an update to the operating system utilized in your Provider Product is necessary or desirable, it may, but is not obligated to, contact you to request that you update your Provider Product and resubmit your Provider Product in accordance with Section 2.1. If you fail to update your Provider Product within the time-period specified in such notice, Lumen reserves the right to, either promptly remove all or a portion of the Provider Product(s) from the Lumen Marketplace or exclusively on your behalf and at your expense, update, or engage a third party to update, the operating system of your Provider Product to apply software patches deemed necessary by Lumen in its sole discretion. We reserve the right to set off the costs associated with such update against any Provider Net Proceeds. Review and/or modification of your Provider Product by Lumen or its third party contractor in accordance with this Agreement will not abrogate, modify or otherwise limit your obligations under this Agreement, and you will continue to remain solely responsible for your Provider Product and for ensuring that all software contained in your Provider Product is kept up-to-date with current bug fixes and patches.

2.4 Marketing Restriction. You may not include in your Provider Product, any advertisements or promotions for, or opportunities for a Subscriber to purchase products not listed in the Lumen Marketplace.

2.5 Fair Treatment of Subscribers. Your Marketplace Product must continue to be offered; (i) on substantially similar terms and conditions for and (ii) at prices competitive with the same product(s) on similarly situated sales channels (“Similar Sales Channels”). You must also provide all updates and new versions of the Provider Product as soon as those updates or versions are made available through a Similar Sales Channel if those updates or versions are required for Subscribers use of the service until the end of their then-current term.

2.6 [Intentionally Left Blank]

3. Privacy; Confidentiality; Data Confidentiality.

3.1 Confidentiality. Neither party will, without the prior written consent of the other party disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the Confidential Information received from the other party. Each party will use reasonable efforts to protect the other party’s Confidential Information and will use at least the same efforts to protect such Confidential Information, as the party would use to protect its own Confidential Information. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under the Agreement. Each party agrees to limit disclosure and access to Confidential Information to those of its employees, contractors, attorneys or other representatives who reasonably require such access in order to accomplish the purposes of this Agreement and who are subject to confidentiality obligations at least as restrictive as those contained herein. This section does not prohibit either party from responding to lawful requests from law enforcement authorities.

3.2 Subscriber Information. Except as expressly permitted by us or you obtain permission from the Subscriber for other purposes in your Privacy Statement or otherwise, you may only use Subscriber Information in the provision, operation and support of your Provider Product or to provide technical support. You may not directly or indirectly use Subscriber Information for any other purpose, including by way of example: (a) to disclose any Subscriber Information to any third party, except as necessary for you to perform your obligations under this Agreement and only if you ensure that every recipient uses the information is under confidentiality obligations and other restrictions/requirements substantially similar to the confidentiality terms herein; (b) use any Subscriber Information for any marketing or promotional purposes not expressly permitted hereunder, including communications related to offering or advertising products or services not listed on Lumen Marketplace; (c) use any Subscriber Information in any way inconsistent with applicable privacy policies or law; (d) contact a Subscriber to influence them to make an alternative purchase; (e) disparage Lumen, its Affiliates or any other Lumen products and services; or (f) target communications of any kind on the basis of the intended recipient being a customer of Lumen and/or a Subscriber. Your communications with Subscribers must comply with all applicable laws. You are solely responsible for implementing and maintaining all appropriate security measures to prevent unauthorized use or disclosure of Subscriber Information.

3.3 Privacy Statement. Your Privacy Statement must (i) comply with applicable laws and regulations; (ii) inform Subscribers about any Subscriber Information that you collect in accordance with this Agreement, including the country of origin or geographical region where the physical connection for the Provider Product is, and how that information is used, stored, secured, and disclosed and/or transferred among geographical regions or countries; and (iii) describe the controls that Subscribers have over the use and sharing of their Subscriber Information and how they may access their information. Lumen’s privacy policies apply solely to its Customers’ use of Lumen’s services and will not apply to Subscribers’ use of any third-party Provider Product.

4. Term and Termination.

4.1 The term of this Agreement commenced on the date you clicked to accept these terms and became a Provider and will continue until the term of the last Subscriber account on Marketplace is cancelled or expires, at which time this Agreement will automatically terminate.

4.2 [Intentionally Left Blank].

4.3 Either party may earlier terminate this Agreement for any or no reason by providing 30 days’ prior written notice to the other party. Notwithstanding the foregoing, Lumen may, in its sole discretion suspend and/or terminate the Agreement immediately and without notice in the event Provider violates material provisions of this Agreement, including the Confidentiality provisions of Section 3, Marketplace requirements, Intellectual Property or Warranty terms and conditions per the Agreement or any applicable Lumen policy. Lumen may suspend Service or terminate the affected Service: (a) upon five (5) days’ notice in the event of any uncured payment default; or (b) upon notice in the event Provider violates any other provision of this Agreement that is not cured during the notice period.

4.4 You are responsible for billing Subscribers if this Agreement is terminated by Lumen for cause.

4.5 Notwithstanding anything in this Agreement to the contrary, we may terminate an existing Subscriber’s use of your Provider Product (i) at any time if the underlying agreement between Lumen and Customer (i.e. your Subscriber) is terminated for any reason or (ii) upon termination of this Agreement for any or no reason. In addition, Lumen may disable or remove Provider Products already purchased by a Subscriber, if Lumen determines in its sole discretion that the Provider Products may violate any Lumen policies or any other regulations, policies or laws. Provider acknowledges and agrees that Lumen shall have no liability for any action taken pursuant to this subsection.

4.6 Lumen may stop providing the Lumen Marketplace (or any features of or listings methods within the Marketplace) at Lumen’s sole discretion at any time and without further notice and provide Provider with up to 60 days to transition Subscriber’s services provided on Lumen Cloud.

4.7 Upon any termination or expiration of this Agreement, any Provider data, content or other materials will be deleted and Provider shall: (i) immediately cease all use of the Lumen Marketplace Provider Program materials; and (ii) promptly return to Lumen (or, if Lumen so requests, destroy in accordance with Lumen instructions) all copies of any firmware or software provided by Lumen in connection with the Marketplace program, all Confidential Information and any other Lumen materials related to the Marketplace in Provider's possession. You are responsible for Your Marketplace Product. Subject to Section 2.5 of this Agreement, you will establish the pricing, license rights and other terms governing subscribers’ use of Your Marketplace Product. The terms governing use of Your Marketplace Product by subscribers must be consistent with our terms for use of any web services offered by Lumen that are used with Your Marketplace Product, and our terms will control to the extent of any conflict. If you do not specify license rights for Your Marketplace Product, you agree to license Your Marketplace Product to subscribers on the same terms that we license software offered by Lumen to subscribers. You will ensure that all information about Your Marketplace Product (including information about applicable fees) displayed on the Lumen Site is, at all times, accurate, complete, not misleading, and in compliance with applicable law. Except as provided in this Agreement, Lumen obtains no rights under this Agreement from you to Your Marketplace Product.

5. User Fees, Payments, and Refunds

5.1 Billing. On your behalf, we will charge or invoice Subscribers for use of your Provider Product in accordance with the User Fees specified, including any applicable discounts from promotional codes entered by Subscribers. We may convert the User Fees associated with a Provider Product into a local currency or to a currency associated with a Subscriber’s existing customer agreement with Lumen. You will ensure that all fees and charges payable for use of your Provider Product are billed and collected through the Marketplace, and you will not offer or establish any alternative means of payment. We do not guarantee payment on behalf of any Subscribers. We may withhold for investigation, or refuse to process, any of your transactions that we suspect is fraudulent, unlawful or otherwise violates the terms of this Agreement or our billing policies.

5.2 Provider Net Proceeds. Amounts payable to you will be calculated as follows: (i) aggregate User Fees paid and actually collected from Subscribers (exclusive of taxes) for use of your Provider Products over the previous calendar month; less (ii) the Marketplace Listing Fee; less (iii) any other amount we may withhold, deduct, or setoff from amounts payable by you to us or our Affiliates, including any applicable taxes, refunds, and/or chargebacks. The total sum payable to Provider hereunder is referred to as “Provider Net Proceeds.” We will include a transaction report along with payments made to you hereunder that reflects the calculation of Provider Net Proceeds and the number of Provider Products used by Subscribers during the relevant billing period.

5.3 Payment Terms. Lumen will pay applicable Provider Net Proceeds monthly. If Provider Net Proceeds are less than $250.00 USD in any given month, we may elect to carry forward the amount owed until the total amount owed is at least $250.00 USD. All Provider Net Proceeds will be paid using Lumen’s standard payment methods and in the manner Provider indicated during account setup which may include checks payable to you and sent via U.S. mail and/or ACH electronic payment to a financial institution that you designate. You must provide us (or our third-party payment processor) with all financial, tax, and banking information requested so that we can pay you under this Agreement. We are not responsible for delay, loss, or misapplication of payment because of incorrect or incomplete information supplied by you or a bank or for failure of a bank to credit your account. We will remit payment to you in US Dollars regardless of the currency in which we bill or receive payment from Subscribers. Lumen will utilize Lumen’s then-current currency conversion/exchange rates at the time the Provider Net Proceeds are calculated. Provider acknowledges and agrees that Provider Net Proceeds may vary month by month based on current conversion/exchanges rates.

5.4 Refunds and Offsets. Any requests for refunds or credits from Subscribers will be directed to Provider for resolution. You agree to inform us if any Subscriber is owed a refund for your Provider Product. In such case, we will be solely responsible for processing any refunds through our payment system. You will not receive payment for any Product that is sold and later refunded or subjected to a chargeback, and we may offset future payments to you if a refund or chargeback is issued for a transaction for which you previously received payment.

6. Tax Calculation and Remittance.

6.1 General. If you chose to make Provider Products available in countries outside of the United States, you will have sole responsibility to determine your tax obligation in such country, if any.

6.2 Related to Subscribers. Subject to 6.1 above, in certain countries, we will collect and remit sales, use, goods and services, value added, or similar taxes, if any, applicable to the sale of your Provider Product to Subscribers in such countries through the Marketplace consistent with how Lumen invoices and taxes its Customers. We make no warranty that the taxes we charge in any country will be equivalent to yours or that the taxes we collect and remit in such countries will relieve you of primary liability for taxes on such sales, whether or not such taxes are separately stated by us and any and all taxes payable by you shall not reduce any amounts to which Lumen is entitled. We may not charge sales, use, goods and services, value added or other similar taxes in all countries and you acknowledge and agree that you are solely responsible for (a) determining the appropriate tax applicable in all countries in which the Provider Product is available; and (b) determining whether you have an obligation to register, collect, and remit taxes in any country in which Lumen may not or elects to not charge applicable taxes, and you must designate the User Fees associated with your Provider Product as made available in such country to include any applicable taxes that you are obligated to collect and pay. We are not obliged to determine if any taxes apply, and we are not responsible for remitting taxes to any taxing authority, or for reporting any information (including the payment of taxes).

6.3 Exemption Certificates. You will be solely responsible for obtaining any necessary exemption certificates and for any tax liability resulting from your failure to do so.

6.4 Taxes on the Marketplace Service Fee. If we are required to collect any sales, use, goods or services, value-added, or similar taxes in connection with your payment of the Marketplace Listing Fee, we may deduct and retain the amount of such taxes from amounts otherwise due to you and remit them to the applicable taxing authority.

7. Proprietary Rights.

7.1 The Lumen Marketplace, including, by way of example and not limitation all visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, trademarks, services marks is proprietary to Lumen, its Affiliates and/or its licensors and is protected by United States and international copyright, trade dress, patent, and trademark laws, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing in the performance of the Marketplace program shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by Lumen, its Affiliates or its licensors and Lumen shall retain at all times all right, title and interest in and to the Lumen Cloud Services and the Marketplace program and any other materials or information it discloses or otherwise makes available in connection with this Agreement. Lumen intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Lumen Cloud Service and the Marketplace program. Except as expressly permitted herein, nothing herein authorizes Provider to use, create or distribute any product or technology that is (a) derived from the Lumen Cloud Service or any related software or documentation, or (b) made available by Lumen free of charge.

7.2 You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of any intellectual or materials provided to or available via the Marketplace program that is not solely owned by You.

7.3 Other Rights. During the term of this Agreement and for so long as Subscribers are using your Provider Product, you grant Lumen a nonexclusive, worldwide license to: (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), your Provider Product through the Lumen Marketplace; (b) display (i) your trademarks and logos in the form you provide them to us (with any modifications to optimize their viewing), and (ii) limited portions of your Provider Product (e.g. product description) in connection with the Lumen Marketplace; and (c) access, display, promote and otherwise use your Provider Product solely in connection with making your Provider Product available for potential subscribers. We may permit our Affiliates and independent contractors to exercise the rights that you grant to us in this Agreement.

8. Warranty; Disclaimers.

Provider represents and warrants that: (i) it has all rights, permissions, licenses and certifications (if applicable) to upload and provide for use the Provider Products, including any Provider Products that include third party software or intellectual property or open source code; (ii) that the Provider Products are free from bugs; (iii) it will maintain at all times updated terms and conditions and requirements for use of the Provider Products for the entire time such Provider Products are posted; and (iv) you will ensure that all information about your Provider Product (including information about applicable fees) displayed on the Lumen Marketplace is, at all times, accurate, complete, not misleading, and in compliance with all applicable law. Further, Provider warrants that the Provider Products will not contain an Unmitigated Vulnerability. “Unmitigated Vulnerability” means any technology or configuration that, from a security perspective induces unacceptable operational risks and, is (i) inconsistent with industry-accepted practices, (ii) susceptible to being hacked, broken into or compromised, or (iii) referenced by the Carnegie Mellon CERT® Coordination Center at www.cert.org.

9.DISCLAIMER OF WARRANTY.

LUMEN MARKETPLACE IS PROVIDED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF PUBLISHING YOUR PROVIDER PRODUCTS THROUGH THE MARKETPLACE FOR USE BY SUBSCRIBERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT RELATING TO THE LUMEN CLOUD SERVICES AND THE MARKETPLACE. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF, THE LUMEN SERVICES OR THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE COMPLETENESS, ACCURACY, RESULTS, OPERATION, SECURITY AND PERFORMANCE OF THE LUMEN MARKETPLACE, THE PROVIDER PRODUCTAND RELATED MATERIALS IS ASSUMED BY PROVIDER.

10. LIMITATION OF LIABILITY.

EXCEPT FOR PROVIDER’S BREACH OF ITS OBLIGATIONS RELATED TO CONFIDENTIALITY PURSUANT TO SECTION 3 AND INTELLECTUAL PROPERTY AND PROVIDER’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE TOTAL TRANSACTION PROCEEDS ACCRUED BY Lumen UNDER THIS AGREEMENT FOR THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM, MINUS THE AMOUNT OF ANY DAMAGES PAID BY SUCH PARTY OR ITS AFFILIATES OR LICENSORS TO THE OTHER PARTY DURING SUCH SIX-MONTH PERIOD. EXCEPT FOR PROVIDER’S BREACH OF ITS OBLIGATIONS RELATED TO CONFIDENTIALITY OR INTELLECTUAL PROPERTY OR ITS INDEMNIFICATION OBLIGATIONS, NEITHER PARTY NOR ANY OF EITHER PARTY’S RESPECTIVE AFFILIATES OR LICENSORS WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, LOSS OF DATA OR EXEMPLARY DAMAGES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ASSOCIATED WITH: LOSS OF PROFITS OR GOODWILL; UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES; INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OR ACCESS TO THE SERVICES; OR UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION OR LOSS OF YOUR DATA OR CONTENT, INCLUDING REPLACEMENT COSTS. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE OR COUNTRY DOES NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES.

11. Indemnification.

11.1 General.

Provider will defend, indemnify, and hold harmless Lumen, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of or relating to any claim concerning:

11.1.1 alleged infringement or misappropriation of any third-party rights by your Provider Product, or by the use, distribution, sale, development, design, production, advertising or marketing of your Provider Product;

11.1.2 a dispute between you and any Subscriber;

11.1.3 any royalties or payments due to any third parties as a result of this Agreement;

11.1.4 any actual or alleged violation of law, negligence, willful misconduct, or fraud by you in connection with your Provider Product, including making them available on Lumen Marketplace;

11.1.5 any actual or alleged breach of your representations, warranties, covenants or obligations set forth in this Agreement; or

11.1.6 any claim or demand for payment of any taxes imposed in connection with any transactions/payments contemplated herein, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit or report any taxes in connection with any transactions/payments contemplated herein.

12. General.

We will promptly notify you of any claim, but our failure to promptly notify you will only affect your obligations to the extent that our failure materially prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.

12.1 Notice.12.1 Except as otherwise provided in this Agreement, all notices that you provide to us under this Agreement must be sent to the following email Marketplace@centurylink.com. We will provide notice to you via the contact information provided during account set up. We may disclose your contact information as necessary for us to administer this Agreement through our Affiliates and other parties that help us administer this Agreement.

12.2 Force Majeure. Lumen is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, governmental actions, fires, explosions, labor disputes, war, pandemic, terrorism, riots, inability to obtain energy (each, a "Force Majeure Event"). Lumen will take all reasonable steps to remove the causes of non-performance and resume performance as soon as practical as the causes are removed.

12.3 No Exclusivity. Each party acknowledges and agrees that the rights granted to and obligations due to the other party in this Agreement are intended to be non-exclusive and therefore that nothing in this Agreement will be deemed or construed to prohibit either party from engaging in or participating itself or with one or more third parties in business arrangements similar to or competitive with those described herein.

12.4 Other. This Agreement constitutes the entire agreement between Provider and Lumen regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, agreement, or communication between Lumen and Provider, whether written or oral, regarding such subject matter. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its principles for resolving conflicts of law. Any legal proceeding relating to the Agreement must be brought exclusively in a U.S. District Court or in a state court of competent jurisdiction, in Denver, Colorado. Notwithstanding anything to the contrary, Lumen may seek injunctive relief or other relief in any court of competent jurisdiction for any actual or alleged infringement of Lumen's or any third party's intellectual property and/or proprietary rights. A waiver of any default is not a waiver of any subsequent default. Provider may not assign or otherwise transfer any of its rights hereunder without Lumen's prior written consent, and any such attempt is void. The relationship between Lumen and Provider is not one of a legal partnership, joint venture, employee or franchise relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Each party is solely responsible for all costs and expenses incurred by it in connection with its performance of this Agreement. If we receive a claim from a third party requesting that your Provider Product be changed or removed, in addition to our rights under this Agreement we may refer that claim to you. You must comply with the notice as soon as reasonably practicable, together with any other requirements we reasonably request. If you discover that your Provider Product violates the terms of this Agreement, you must immediately notify us and work with us to cure the violation. We may sublicense our rights under this Agreement to third parties or otherwise authorize third parties to assist us in performing our obligations or exercising our rights under this Agreement. We may update this Agreement from time to time. If we update this Agreement, we will indicate the last date on which the Agreement was modified at the top of the Agreement and provide you with 30 days’ notice prior to the effective date of the updated version of the Agreement. By continuing to make Provider Products available, your continuance of Subscriber subscriptions, and the receipt of payments from Lumen from Subscribers in the Marketplace after such notice period, you agree to be bound by the terms and conditions contained in the updated Agreement. The foregoing notice period will not apply to updates to any guidelines or policies referenced herein, which we may update at any time. In the event of a conflict between the terms of this document and the terms of an applicable guideline or policy, this document will control.

13. Definitions

“Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party.

“Confidential Information” means any non-public business plans, analyses, forecasts, predictions or projections, technical information, business models, pricing strategies, marketing ideas, or financial information of either party that is disclosed by one party to the other party either in the formation or implementation of the Agreement. Confidential Information includes Subscriber Information. Confidential Information will not include information that is in the public domain through no breach of the Agreement by the receiving party, information that is already known or is independently developed by the receiving party.

“Customer” means a duly authorized and valid user of Lumen Cloud services. For purposes of this Agreement a Customer may not be reselling Lumen Cloud services. Only a Customer may be a Provider or Subscriber.

“Subscriber Information” means all data, including all text, sound, video, or image files, software and information that is provided to, accessed or made available to Provider by, or on behalf of, Subscribers through their use of your Provider Products, including contact information, purchase history or usage information.

“Marketplace” means a catalog and/or limited repository of links operated by Lumen on the Lumen Cloud platform that allows metered subscriptions to Provider Products offered to and purchased by other Lumen Cloud Customers. Any Provider Products offered through the Lumen Marketplace constitutes third party software not provided by Lumen. Subscribers may access the Marketplace via a web-based management portal, Marketplace APIs, or other mechanisms made available by Lumen.

“Marketplace Listing Fee” means the fee charged by Lumen for the promotion, availability of the Provider Products and associated billing and collection. For purposes of this Agreement the Marketplace Listing Fee is 20% of aggregate, gross User Fees billed in a calendar month. Lumen reserves the right to modify this fee upon sixty (60) days prior notice.

“Marketplace Participation Policies” means the business policies and requirements for publishing in the Marketplace, as set forth at https://www.ctl.io/knowledge-base/marketplace/providers/centurylink-marketplace-provider-program-guide/.

“Marketplace Provider Program Guidelines” means the guidelines for participation in and the documentation by which Lumen provides technical instructions and baseline requirements to Providers to assist them in creating, testing, and publishing Provider Products within the Marketplace, as set forth at https://www.ctl.io/knowledge-base/marketplace/providers/Lumen-marketplace-provider-program-guide/ or at an alternate site that we identify.

“Provider Product” means any software, data, media, or service published or proposed to be published in the Marketplace under this Agreement, and includes, without limitation, the Provider Product categories described in the applicable policies or guidelines. Provider Product may include operating system and application software associated with a Provider Product, not including any software proprietary to Lumen, its Affiliates or licensors, irrespective of whether Provider is the owner of such software. All Provider Products offered through the Lumen Marketplace constitutes third party software not provided by Lumen. All individual products offered by Provider are collectively referred to as Provider Product.

“Provider” means a Lumen Cloud Customer with a legal entity and billing address in the United States who has provided a valid IRS Form W-9 and who has entered into the appropriate terms and conditions to list Provider Products on the Lumen Marketplace.

“Privacy Statement” means a privacy statement that describes Provider’s practices regarding collection and use of Subscriber Information, as specified in the Listing Information associated with your Provider Product.

“User Fees” means a set of fees that you authorize Lumen to charge Subscribers for use of a Provider Product. All User Fees shall be listed in USD. The Marketplace Participation Policies sets forth the pricing models (e.g. hourly, monthly, one-time, etc.) supported by the Marketplace.

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