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These AptEdge Terms of Service (the “Agreement”) are effective as of the Effective Date (defined below) and are entered into by and between AptEdge.io, Inc., a Delaware corporation with offices at 19 S B Street, Suite 8, San Mateo, CA 94401 (“AptEdge”), and the Customer who executes a Service Order with AptEdge incorporating these terms by reference (“Customer”). This Agreement specifies the terms and conditions under which Customer can access and use AptEdge’s Services (as defined below).
IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. CUSTOMER CONFIRMS THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT BY EXECUTING AN ORDER (DEFINED BELOW) REFERENCING THIS AGREEMENT.
IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY, GOVERNMENTAL ENTITY OR OTHER ENTITY (AN “ENTITY”), CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THE TERM “CUSTOMER” REFERENCED HEREIN REFERS TO: (1) THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY.
THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE EFFECTIVE DATE OF ANY APPLICABLE ORDER. EACH ORDER MAY NOT BE CANCELLED ONCE THIS AGREEMENT HAS BEEN ACCEPTED, AND NO REFUNDS WILL BE GRANTED.
AptEdge may update this Agreement from time to time. If Customer has an active subscription to the Services, AptEdge will provide notice of any update via in-application notification or by email. If Customer does not have an active subscription, an updated set of terms and conditions will be indicated by the “Date last modified” date below.
Date last modified: February 15, 2024
1. Definitions
1.1. “Affiliate” means, with respect to AptEdge or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with AptEdge or Customer, respectively. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “AI Models” means any AptEdge owned or controlled machine-based artificial intelligence or large language model.
1.3. “Analytics” means analytical results prepared by AptEdge and the Services based on the processing of Customer Data.
1.4. “Authorized User” means Customer’s employees, contractors, or agents authorized by Customer to access and use the Services pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Services will be limited to their provision of services to Customer.
1.5. “Customer Data” means all electronic Data submitted by or on behalf of Customer to the Service.
1.6. “Confidential Information” means each party’s technical and business information (including but not limited to hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business and marketing plans or opportunities, finances, vendors, penetration test results and other security information, defect and support information and metrics, and third party audit reports and attestations) that is designated by the disclosing party as confidential or the receiving party should reasonably know is confidential given the nature of the information and circumstances of disclosure. The Services, Documentation, and pricing are AptEdge’s Confidential Information.
1.7. “Data” means text, images, documents, statistics, graphics, and all other forms of data or communication.
1.8. “Data Processing Agreement” or “DPA” means AptEdge’s data processing agreement which is incorporated by reference herein and applies to the processing of Customer Data that is Personal Information (as the term is defined in the DPA) by AptEdge. For detailed information, please refer to the full DPA at https://www.aptedge.io/dpa. This agreement ensures the protection, proper use, and confidentiality of personal data.
1.9. “Documentation” means any manual and other documentation regarding the Services made generally available by AptEdge to its customers, as may be updated from time to time.
1.10. “Feedback” means suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Authorized Users relating to the features, functionality, or operation of the Services.
1.11. “Integration” means any integration of any component of the Services with any Third Party Product using one or more connectors or other technical or manual methods developed from time to time by or on behalf of AptEdge.
1.12. “Laws” means any local, state, or national law, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, or other binding restriction of or by any governmental authority applicable to a respective party.
1.13. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents, or programs.
1.14. “No Cost Pilot” means any AptEdge Services or functionality that AptEdge makes available to Customer to try at Customer’s option, at no additional charge, and which is designated as “trial,” “pilot,” “evaluation,” “proof of concept (POC),” “proof of value (POV)” or by a similar designation in the applicable Service Order.
1.15. “Service Order” means a Service Order for the Service mutually executed by the Parties that set forth, among other things, the applicable fees and any other applicable terms and conditions. Service Orders do not include the terms of any preprinted terms on a Customer purchase order or other terms on a purchase order that are additional or inconsistent with the terms of this Agreement.
1.16. “Personal Information” has the meaning as set forth in the DPA.
1.17. “Services” means AptEdge’s proprietary online analytics platform and all applications, algorithms, computer programs, APIs, Integrations, and related Documentation, and the Analytics.
1.18. “Term” means the term of each subscription to the Services as specified in the applicable Service Order.
1.19. “Third Party Product” means any third party software, website, application, platform, program, data feed, or data source not provided or licensed by AptEdge to Customer under this Agreement.
1.20. “Usage Data” means anonymized or aggregated data, statistics, usage analytics and analysis derived from the Services and Customer’s use thereof.
2. Services
2.1. Services.Subject to Customer’s compliance with the terms and conditions of this Agreement and the payment of Fees (as defined in Section 7.1) owed hereunder, AptEdge shall make the Services available to Customer on a subscription basis pursuant to this Agreement and the applicable Service Order during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non- transferable (except as expressly permitted in Section 12.1) right during the Term to allow its Authorized Users to access and use the Service in accordance with the Documentation, solely in connection with Customer’s internal business operations. Customer acknowledges and agrees that AptEdge shall only provide Customer with the specific Services identified on the Service Order, and not any other products or services that AptEdge may offer.
2.2. Affiliates
2.2.1. Subject to the terms of the Service Order and this Agreement, the Customer may make the Services available for use by its Affiliates provided that (a) all licensing restrictions are complied with by each Affiliate, and (b) such Affiliates are bound by obligations as protective of AptEdge as this Agreement for the benefit of AptEdge. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Service Order with AptEdge for the Services pursuant to Section 2.2.2.
2.2.2. In addition to Section 2.2.1, Customer’s Affiliates may acquire Services subject to the terms and conditions of this Agreement by executing Service Orders hereunder directly with AptEdge. Each Service Order executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between AptEdge and such Affiliate. Each Affiliate executing a Service Order shall be solely responsible for its obligations pursuant to such Service Order as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer. Customer shall have no obligations or liabilities as to such Service Order signed by its Affiliate and AptEdge shall look solely to the Affiliate executing such Service Order.
2.3. Support Services. During the applicable Term, provided that Customer is current with its payment of the fees specified in the applicable Service Order, AptEdge will use commercially reasonable efforts to provide Customer with technical support services relating to the AptEdge Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays, in accordance with AptEdge’s then current service level agreement.
2.4. Integrations. AptEdge may maintain Integrations for the Services with third party vendors. Customer acknowledges that use of any Integration requires a separate agreement with a third party vendor and may require the payment of fees to a third party vendor for access to the Third Party Product(s) to which the Integration connects. Customer acknowledges and agrees that AptEdge has no obligation to enter into any agreement with any third party vendor on Customer’s behalf. Any third party vendor with whom Customer enters into an agreement for the purposes of using the Integration processes Customer Data independent from this Agreement on behalf of Customer and any such third party vendor is not a subcontractor or subprocessor of AptEdge under this Agreement. Customer is responsible for ensuring it has appropriate terms for the processing of Customer Data in place with any such third party vendor. AptEdge is not responsible or liable for: (i) any Third Party Products, (ii) any delay, unavailability or connectivity issues caused by Third Party Products or third party vendors who provide Third Party Products, or (iii) errors that may arise in the Services as a result of any such Third Party Products or modifications thereto made by anyone other than AptEdge. The availability of any Integration to a Third Party Product does not mean AptEdge endorses, supports, or warrants any Third Party Product or third party vendor.
3. Obligations
3.1. Restrictions on Use. Customer and its Authorized Users shall use the Service in compliance with this Agreement, the applicable Service Orders, Documentation, and all applicable Laws and shall not, and shall not permit or authorize third parties to: (i) copy, rent, sell, lease, sublicense, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Services, or any part thereof; (ii) except as otherwise set forth in an Service Order, send or store in the Services any personal health information, credit card data, personal financial data or other sensitive data that may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store infringing or unlawful material in connection with the Services; (iv) send Malicious Code to the Services; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the Data contained therein; (vi) modify, copy or create derivative works based on the Services, or any portion thereof; (vii) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (viii) delete, alter, add to or fail to reproduce in and on the Services the name of AptEdge and any copyright or other notices appearing in or on the Services or which may be required by AptEdge at any time; (ix) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Services; (x) “frame,” “mirror,” copy or otherwise enable third parties to use the Services (or any component thereof) as a service bureau or other outsourced service; (xi) use the Services in a manner that interferes with, degrades, or disrupts the integrity or performance of any AptEdge technologies, services, systems or other offerings, including data transmission or storage; (xi) circumvent or disable any security features or functionality associated with AptEdge Services; (xii) allow access to or use of the AptEdge services by anyone other than its Authorized Users; use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services; (xiii) or probe, scan or test the vulnerability of the Services, or breach the security or authentication measures on the Services. Customer acknowledges and agrees that it is not permitted to imbed the Services into any of Customer’s own products or services, and Customer may not provide access the Services to its consumers or customers. Customer is responsible for all acts and omissions of Authorized Users and any other person who accesses and uses the Services using any of Customer’s or its Authorized Users’ login credentials.
3.2. Customer Data
3.2.1. Customer shall be responsible for the accuracy, quality, integrity, completeness, and legality of Customer Data and the means by which Customer acquired Customer Data. Customer shall comply with all Laws in the provision of Customer Data hereunder. Customer represents and warrants that Customer either own fully and outright or otherwise possess and have obtained (and paid for) all rights, approvals, licenses, consents, clearances, releases, and permissions as are necessary to provide Customer Data (or to allow the Services to access or connect to Customer Data or any Integration) for use in connection with the Services and AptEdge will not be obligated to execute a separate agreement with any third party in order to access or use Customer Data for the purposes of providing the Services as described in this Agreement. AptEdge shall have no obligation to verify the accuracy, quality, integrity, completeness, and legality of Customer Data and AptEdge shall be entitled to rely on the accuracy, quality, integrity, completeness, and legality of Customer Data. Customer acknowledges and agrees that AptEdge does not scan Customer Data for Malicious Code, and Customer is responsible for scanning Customer Data for Malicious Code prior to inputting the Customer Data into the Services. Customer shall be responsible and liable for any Malicious Code introduced into the Services by Customer.
3.2.2. Customer hereby grants to AptEdge a royalty-free, non-exclusive, worldwide right and license to host, access, copy, transmit, display, use, and store Customer Data to perform the Services and provide the Analytics to Customer. Without limiting the foregoing, Customer grants AptEdge the right to run Customer Data through AI Models to perform the Services and provide the Analytics to Customer. Customer Data will not be used for the purposes of training, testing, or validating AI Models.
3.3. Suspension of Services. Any use of the Services in breach of this Agreement, Documentation or Service Orders by Customer or Authorized Users that in AptEdge’s judgment threatens the security, integrity or availability of the Services may result in AptEdge’s immediate suspension of Customer’s access to the Services; however, AptEdge will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3.4. Security. AptEdge shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security and integrity of the Services and the Customer Data. To the extent that AptEdge processes any Personal Information on Customer’s behalf in the provision of the Services, the DPA shall apply, and the parties agree to comply with such terms.
4. Confidentiality
Each party agrees to protect the Confidential Information (as defined below) of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A party shall not disclose or use any Confidential Information of the other party for any purpose except carrying out such party’s rights and responsibilities under this Agreement, without the disclosing party’s prior written permission. A party may disclose the other party’s Confidential Information to its employees, contractors, agents, and Affiliates that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” to carry out the purpose of this Agreement. Confidential Information shall not include any information that (a) is or becomes generally known to the public, other than as a result of the act or omission of the receiving party; (b) was rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party; or (d) was independently developed by a party without breach of any obligation owed to the other party. If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there may be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it. Confidential Information is and shall remain the property of the disclosing party.
5. Ownership
5.1. Customer Data. As between AptEdge and Customer, Customer owns its Customer Data.
5.2. AptEdge Intellectual Property. Except for the rights expressly granted under this Agreement, AptEdge and its licensors retain all right, title, and interest in and to the Services, AI Models, Documentation and Usage Data, including all related intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.3. Feedback. AptEdge shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into its products and services any Feedback. AptEdge shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback. AptEdge will not include or use any Customer Data or Customer’s Confidential Information in any improvements based on Feedback. Feedback shall not be attributed to Customer. Feedback is provided “as-is” without warranty of any kind.
5.4. Usage Data. Customer acknowledges and agrees that during the term of this Agreement and thereafter, AptEdge may collect, analyze, copy, display and use Usage Data for the purposes of benchmarking, providing, operating, analyzing, and improving the Services and other AptEdge products and services. AptEdge may disclose Usage Data to its partners, customers, and on its public facing website for the purposes of benchmarking and online marketing, provided however AptEdge will not disclose any Usage Data unless it is in an aggregated and anonymized format that would not permit a third party to identify the data as associated with Customer or any individual.
6. Fees
6.1. Fees. Customer agrees to pay AptEdge all fees set forth in the applicable Service Order (“Fees”) in accordance with this Agreement and the Service Order. If not otherwise specified on a Service Order, all Fees (except Fees subject to a good faith dispute) will be due within thirty (30) days of the invoice date. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to AptEdge hereunder are non-cancelable and non-refundable. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are in United States dollars, and Customer will pay all such amounts in United States dollars.
6.2. Failure to Pay. If Customer fails to pay any Fees due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of Law, (i) AptEdge reserves the right to suspend the Service upon thirty (30) days written notice, until such amounts are paid in full, and (ii) AptEdge will have the right to charge interest at a rate equal to the lesser of one and one- half percent (1.5%) per month or the maximum rate permitted by applicable Law until Customer pays all amounts due; provided that AptEdge will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
6.3. Taxes. Fees do not include and may not be reduced to account for any taxes including any local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on AptEdge’s net income or property), unless Customer provides AptEdge with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Limited Warranty, Disclaimer
7.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) it has the authority to enter into this Agreement.
7.2. AptEdge Warranties. AptEdge warrants that during the applicable Term, the Services shall perform materially in accordance with the applicable Documentation. AptEdge shall use commercially reasonable efforts to correct the non-conforming Services at no additional charge to Customer, and in the event AptEdge fails to successfully correct the Services within a reasonable time (at least 30 days) of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Service Order as to the non-conforming Services and receive an immediate pro rata refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection will be Customer’s sole remedy and AptEdge’s entire liability for breach of these warranties. The warranties set forth in this subsection shall apply only if the applicable Service has been utilized in accordance with the Documentation, this Agreement and applicable Law.
7.3. Disclaimers. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, APTEDGE AND ITS SUPPLIERS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND AS TO THE SERVICES OR ANY MATTER WHATSOEVER. APTEDGE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED. APTEDGE MAKES NO WARRANTY REGARDING ANY THIRD PARTY APPLICATION WITH WHICH THE SERVICES MAY INTEROPERATE. APTEDGE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. APTEDGE DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. APTEDGE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. APTEDGE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES INCLUDING ANY OUTPUT CREATED USING AI MODELS. TO THE EXTENT THAT APTEDGE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF DATA AND LOST PROFITS AND COSTS, OR LOSS OF BUSINESS, IN CONNECTION WITH THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. APTEDGE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO APTEDGE UNDER THE SERVICE ORDER FOR THE SERVICES WHICH FORMS THE SUBJECT OF THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS SET FORTH ABOVE DO NOT APPLY TO EITHER PARTY’S WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD, CUSTOMER’S BREACH OF APTEDGE’S’S INTELLECTUAL PROPERTY RIGHTS, CUSTOMER’S OBLIGATION TO PAY FEES OWED HEREUNDER, OR TO ANY CLAIM THAT CANNOT BE LIMITED BY APPLICABLE LAW. APTEDGE’S THIRD PARTY LICENSORS HAVE NO LIABILITY UNDER THIS AGREEMENT. Except for actions of non-payment, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
9. Indemnification
9.1. Indemnification by AptEdge. AptEdge will indemnify, defend and hold Customer harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or Law, (b) use of the Services after AptEdge notifies Customer to discontinue use because of an infringement claim, (c) any claim relating Customer Data, (d) modifications to the Services made by anyone other than AptEdge (where the claim would not have arisen but for such modification), or (e) the combination, operation, or use of the Services with software, applications, materials, data or equipment which was not provided by AptEdge, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use. If the Services are held to infringe, AptEdge will, at its own expense, in its sole discretion use commercially reasonable efforts either (i) to procure a license that will protect Customer against such claim without cost to Customer; (ii) to replace the Services with non-infringing Services without material degradation; or (iii) if (i) and (ii) are not commercially feasible, terminate this Agreement and refund to Customer any prepaid unused fees paid to AptEdge for the infringing Services. The rights and remedies granted to Customer under this Section 9.1 state AptEdge’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
9.2. Indemnification by Customer. Customer shall indemnify, defend, and hold AptEdge harmless from and against all Losses resulting from a claim, suit, action, or proceeding brought by any third party against AptEdge that arises out of or results from the Customer Data or Customer’s breach of its obligations in Section 3.
9.3. Procedure.The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost). The indemnified party may participate in the defense of the claim at its sole expense.
10. Term and Termination
10.1. Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Service Orders have expired or have otherwise been terminated. Subscriptions to the Services commence on the subscription start date and are for the Term as set forth in the applicable Service Order. Except as otherwise specified in a Service Order, subscriptions to the Services will automatically renew for additional terms equal to the expiring Term, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Term. Any such renewal shall be subject to an annual fee increase.
10.2. Termination. Either party may terminate this Agreement by written notice to the other party (i) in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination for cause by Customer pursuant to this Section 10.2, AptEdge will refund Customer a pro-rata portion of any prepaid fees that cover the remainder of the applicable Term after the effective date of termination.
10.3. Effect. Upon expiration or termination of this Agreement for any reason, (a) all rights and subscriptions granted to Customer (including all Service Orders) will immediately terminate, (b) Customer will cease using the Services and AptEdge Confidential Information, and (c) Customer will pay to AptEdge any fees or other amounts that have accrued prior to the date of such termination. If this Agreement is terminated prior to the end of the Term, Customer will pay all fees owed for the remainder of the Term unless the Agreement was terminated by Customer in accordance with Section 9.2. Those provisions which by their nature should survive termination of this Agreement shall survive any termination or expiration of this Agreement.
10.4. Data Deletion.If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, AptEdge shall make available to Customer all Customer Data stored within the AptEdge Service at the time of expiration or termination in accordance with AptEdge’s then-current reasonable procedures. Thirty (30) days after termination, AptEdge shall have no further obligation to Customer with respect to the storage of Customer Data and shall delete the Customer Data.
11. General
11.1. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or AptEdge without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Service Orders), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid (in the case of an assignment by Customer) and the assignee agrees to be bound by all the terms of this Agreement. AptEdge may utilize a subcontractor or other third party to perform its duties under this Agreement so long as AptEdge remains responsible for all its obligations under this Agreement.
11.2. Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by the laws of the State of California, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties’ consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys’ fees. Each party knowingly, voluntarily, and intentionally waives (to the extent permitted by applicable law) any right the party may have to a trial by jury of any dispute arising under or relating to this Agreement.
11.3. Notices. All legal notices shall be in writing and effective upon: (i) personal delivery, (ii) one (1) business day after deposit with a recognized overnight courier for U.S. deliveries (or three (3) business days for international deliveries), or (iii) the day of sending by email (except for notices of indemnifiable claims), if to AptEdge then to INSERT EMAIL ADDRESS, or if to Customer then to the email address on the applicable Service Order, in each case with the words “Legal Notice” in the subject line. Billing-related notices to Customer may be provided by email to the relevant billing contact designated by Customer in the applicable Service Order.
11.4. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction so long as the impacted party uses commercially reasonable efforts to avoid or remove the causes of non-performance.
11.5. Independent Contractor. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no thirdparty beneficiaries under this Agreement, and the parties do not intend that any term of this Agreement be enforceable by any third party. Customer agrees this is not an exclusive relationship, and nothing in this Agreement prohibits AptEdge from providing the same or similar Services to any third party.
11.6. Export. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not permit any Authorized User to access or use the Service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
11.7. Restricted Rights Legend. The Services, including any software or technology provided hereunder for ultimate federal government end use, or that are otherwise subject to the Federal Acquisition Regulations (FAR), are “Commercial Items” as defined in 48 C.F.R. 2.101 and are being provided as commercial computer software and commercial computer software documentation subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If such items are acquired by or on behalf of any agency within the Department of Defense (“DOD”), then they are subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This Section 12.7 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data. If a government agency needs additional rights beyond those customarily given by AptEdge to the public, Customer must negotiate with AptEdge a mutually acceptable written addendum to this Agreement specifically granting those rights.
11.8. No Cost Pilots. If Customer orders a No Cost Pilot, then the applicable provisions of this Agreement will govern that No Cost Pilot, and AptEdge will make such No Cost Pilot available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the Test Period set forth in the applicable Service Order, or (b) the start date of any Initial Term for Services purchased by Customer. A Test Period may be extended upon mutual agreement by AptEdge and Customer. Notwithstanding anything to the contrary in this Agreement, a No Cost Pilot is provided “AS IS.” APTEDGE MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A NO COST PILOT. APTEDGE SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A NO COST PILOT, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE APTEDGE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A NO COST PILOT IS US$1,000. CUSTOMER SHALL NOT USE THE NO COST PILOT IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A NO COST PILOT. ANY CUSTOMER DATA ENTERED INTO CUSTOMER’S NO COST PILOT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE NO COST PILOT UNLESS CUSTOMER ORDERS A PAID SUBSCRIPTION TO THE SERVICES THAT WERE INCLUDED IN THE NO COST PILOT. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS SECTION 11.8 AND ANY OTHER SECTION OF THIS AGREEEMENT, THE TERMS OF THIS SECTION 11.8 SHALL CONTROL WITH RESPECT TO A NO COST PILOT ONLY.
11.9. Modifications to the Terms of Service. AptEdge may modify this Agreement from time to time. Any modifications will be effective as of the Effective Date or renewal date of any Services Order that follows the posting of a notice of such modifications to [INSERT WEBPAGE].
11.10. Insurance. AptEdge shall maintain reasonably sufficient (as determined by AptEdge) insurance coverage to enable it to meet its obligations and liabilities created by this Agreement.
11.11. Modifications to the Services. AptEdge may make modifications to the Services or components of the Services from time to time provided that such modifications do not materially degrade any functionality of the Services (and may provide alternative features that have materially the same benefits as the previous feature). AptEdge reserves the right to change the rates, applicable charges, and usage policies for the Services (or any part thereof) and to introduce new charges, in each case to be effective at the start of the next renewal date, by providing Customer written notice (by email) of the change at least thirty (30) days prior to the next renewal date. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by AptEdge with respect to future functionality or features.
11.12. Waiver, Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
11.13. Use of Name. AptEdge may use Customer’s name and logo to identify Customer as an AptEdge customer of the Services, including on AptEdge’s public facing website and in AptEdge’s marketing materials.
11.14. Entire Agreement. This Agreement, together with the Service Order(s) between AptEdge and Customer, constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and all prior or contemporaneous written or oral agreements existing between the parties hereto, including any non-disclosure agreement(s), and related to the subject matter hereof are expressly superseded hereby. The parties agree that any term or condition stated in Customer’s purchase order or in any other Customer’s order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Service Order between AptEdge and Customer, and (2) this Agreement. Other than as set forth in Section 11.9 (Modification to the Terms of Service), No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.