Terms of Service
Customer and Applatix, Inc., hereby agree to the following:
These Terms and Conditions shall apply to Customer’s use of Applatix, Inc. ‘s (or related third party) subscription services, packaged professional services, all linked pages, content, products and offline components (“Service(s)”) identified in one or more ordering documents signed by the parties, including any exhibits or Statements thereto (“Order(s)”). These Terms and Conditions and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Applatix, Inc. ordering document, and no terms included in any such purchase order or other non-Applatix, Inc. ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control.
2. Right to Use the Services
During the Subscription Term set forth in an Order. Applatix, Inc. grants to Customer, a nontransferable (except pursuant to Section XIII), nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement.
Customer shall be solely responsible for obtaining and maintaining appropriate Customer-side equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”).
3. Usage Restrictions and Representations
Except as expressly permitted hereunder, Customer shall not directly or indirectly:(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (whether Applatix, Inc. proprietary or third party-proprietary) (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) knowingly or negligently use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Applatix, Inc.; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
Customer shall not knowingly or willfully use the Services in any manner that is intended to damage, disable, overburden, impair or otherwise interfere with Applatix, Inc.’s provision of the Services. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer and Applatix, Inc. agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.
Customer acknowledges Applatix, Inc.’s claim, and Applatix, Inc. hereby represents and warrants that Applatix, Inc. owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). Applatix, Inc. shall use commercially reasonable efforts to ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to the Services and Software (including all derivatives and improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Applatix, Inc., and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.
Any rights not expressly granted herein are reserved by Applatix, Inc..
Applatix, Inc. acknowledges Customer’s claim, and Customer hereby represents and warrants that Customer owns any data, information or material originated by Customer that Customer submits or compiles in the course of using the Services (“Customer Data”). Applatix, Inc. has no ownership rights in or to Customer Data. Customer shall use commercially reasonable efforts to ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data (including all derivatives and improvements thereof). Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below.
5. Billing and Payment
Customer shall pay all undisputed fees set forth in an Order, net thirty days (30) days following the invoice date from Applatix, Inc.. All fees are non-cancelable and nonrefundable, except in the event of material breach of these Terms and Conditions or the Order by Applatix, Inc., and except as expressly specified in an Order. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Applatix, Inc.’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
If at any time Customer is exceeding the Usage Rights, Applatix, Inc. shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Applatix, Inc.’s notice, Applatix, Inc. reserves the right to charge and Customer agrees to pay Applatix, Inc.’s then current usage fees for such overage.
6. Term and Termination
The Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. Applatix, Inc. may immediately suspend Customer’s password, account, and access to the Services if (i)
Customer fails to make payment due within ten business days after Applatix, Inc. has provided.
Customer with notice of such failure; or (ii) Customer violates Section 2, 3, or 9 of these Terms and Conditions. Any suspension by Applatix, Inc. of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement. If Applatix, Inc. terminates an Order for Customer’s material breach, all fees set forth on such Order will remain due and payable in accordance with the applicable payment terms described in Section V above.
Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer’s request if received within 30 days of termination of the Order, Applatix, Inc. will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Applatix, Inc.’s possession. Customer acknowledges and agrees that Applatix, Inc. has no obligation to retain Customer Data and that Applatix, Inc. will irretrievably delete and destroy Customer Data after 30 days following the termination of the Agreement.
Customer Data means all electronic data, text, messages or other materials submitted to the Services by the Customer, Customer’s Agents and Customer’s End-Users in connection with the use of the Service, including, without limitation, Personal Data.
7. Representations, Disclaimer of Warranties, Indemnities
Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Applatix, Inc. warrants to Customer that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a timely, professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify Applatix, Inc. of any of the above-described warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.
For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services in a conforming manner, or if Applatix, Inc. cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover the fees paid to Applatix, Inc. attributable to such deficient Services, and such refund shall be Applatix, Inc.’s entire liability.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Applatix, Inc.’s reasonable control, but Applatix, Inc. shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services and to minimize the duration and impact of any such downtime.
Applatix, Inc. shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to Applatix, Inc.; (b) givesApplatix, Inc. sole control of the defense and settlement of the Claim (provided that Applatix, Inc. may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Applatix, Inc., at Applatix, Inc.’s cost, all reasonable assistance.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, APPLATIX, INC. AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, APPLATIX, INC. AND ITS THIRD PARTY PROVIDERS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPLATIX, INC. AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER APPLATIX, INC. NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. APPLATIX, INC. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE TO THE EXTENT RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY APPLATIX, INC., THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
8. Limitation of Liability
EXCEPT FOR A PARTY’S BREACH OF SECTION IX (CONFIDENTIALITY), OR CLAIMS OF BODILY INJURY OR DEATH, NEITHER PARTY OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEEDING 12 MONTHS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
9. .Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Accounts and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 6.3, and, upon Customer’s request, Applatix, Inc. shall certify to such destruction in writing.
10. Statistical Information
Applatix, Inc. may give notice to Customer by written communication sent by first class mail or pre-paid post to Customer’s address on record in Applatix, Inc.’s account information. If Customer has a dispute with Applatix, Inc., wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Applatix, Inc. at 111. W. Evelyn avenue, Sunnyvale CA 94806.
11. Force Majeure.
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided (although payment due dates will be extended, as appropriate).
12. General provisions
Any action, Claim, or dispute related to the Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
The Agreement and all Order(s), represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement and such Order. The Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between Applatix, Inc. and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.