These AptEdge Terms of Service (the “Agreement”) is a legal agreement between you (“Subscriber”) and AptEdge.io, Inc. (“AptEdge”). This Agreement specifies the terms and conditions under which Subscriber can access and use our Services (as defined below). Please read this Agreement carefully. By accessing and/or using our Services, or otherwise manifesting assent to this Agreement, Subscriber agrees to be bound by the terms of this Agreement. If Subscriber does not agree to (or cannot comply with) all of the terms of this Agreement, Subscriber is not permitted to access or use the Services. The person executing this Agreement on behalf of Subscriber represents that he or she is an authorized representative of Subscriber capable of binding Subscriber to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber and AptEdge hereby agree as follows:
(a) “Analytics” means analytical results prepared by AptEdge and the Services based on the processing of Subscriber Data.
(b) “Authorized User” means Subscriber’s employees, contractors, or agents authorized by Subscriber 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 Subscriber. Subscriber is responsible for all acts and omissions of Authorized Users and any other person who accesses and uses the Services using any of Subscriber’s or its Authorized Users’ login credentials.
(c) “Subscriber Data” means data and other information, including all personal information (as defined under applicable data privacy and security Laws), provided or otherwise made available to AptEdge by or on behalf of Subscriber.
(d) “Laws” means any law, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, requirement, or other binding restriction of or by any governmental authority.
(e) “Products” means collectively, Service and Analytics.
(f) “Services” means AptEdge’s proprietary online analytics platform and all applications, algorithms, computer programs, and related documentation.
(g) “Service Order” means an order form for the Service mutually executed by the Parties that set forth, among other things, the applicable fees and any other applicable terms and conditions.
(h) "Usage Data" means the data that AptEdge collects in connection with its monitoring of the performance and use of the Product by Subscriber and Authorized Users, including, without limitation, date and time that Subscriber accesses the Product, the portions of the Product visited, the frequency and number of times such pages are accessed, the number of times the Product is used in a given time period and other usage and performance data.
(a) Use of the AptEdge Services. Subject to the terms and conditions of this Agreement, AptEdge grants to Subscriber during the term a limited, worldwide, non- exclusive, non-transferable (except as permitted in Section 9(d)) right during the term of this Agreement to use the AptEdge Services solely in connection with Subscriber’s internal business operations. Subscriber agrees that its purchase of the AptEdge Service under an applicable Service Order 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. Subscriber will not have any rights to the AptEdge Services except as expressly granted in this Agreement.
(b) Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Service Order, AptEdge will use reasonable efforts to provide Subscriber with technical support services relating to the AptEdge Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
(c) Use Restrictions. Except as otherwise explicitly provided in this Agreement, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the AptEdge Services (b) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the AptEdge Services; (c) "frame," "mirror,” copy or otherwise enable third parties to use the AptEdge Services (or any component thereof) as a service bureau or other outsourced service; (d) use the AptEdge 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, storage and backup; (e) use the AptEdge Services for the purpose of developing a product or service that competes with the AptEdge’s products and services; (f) circumvent or disable any security features or functionality associated with AptEdge Services; (g) use the AptEdge Services in any manner prohibited by law; or (h) allow access to or use of the AptEdge services by anyone other than the Authorized Users.
(d) Subscriber Data. As between the parties, Subscriber will retain ownership of the Subscriber Data. Subject to the terms and conditions of this Agreement, Subscriber hereby grants Aptedge a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Subscriber Data for the purpose of providing the Services hereunder. Subscriber shall have sole responsibility for the accuracy, quality, and legality of Subscriber Data. Notwithstanding anything to the contrary herein, Aptedge may use, and may permit our third-party service providers to access and use, the Subscriber Data, as well as any Usage Data that Aptedge may collect, in an anonymous and aggregated form (“Aggregate Data”) for the purposes of operating, maintaining, managing, and improving its products and services including the Product. Aggregate Data does not identify customer or any individual. Subscriber hereby agree that Aptedge may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.
(e) Intellectual Property. As between the parties, all right, title, and interest in and to the Services, the API, and the Aggregated Data (as defined below), including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of AptEdge.
(a) Fees and Payment Terms. Subscriber will pay AptEdge the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the Service Order. Unless otherwise specified in the Service Order, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
(b) Taxes. Other than net income taxes imposed on AptEdge, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by AptEdge after all such taxes are paid are equal to the amounts that AptEdge would have been entitled to in accordance with this Agreement as if the taxes did not exist.
(a) Term. This Agreement will commence on the specified activation date set forth on the Service Order and will continue for the initial term specified in the applicable Service Order, (“Initial Term”) unless terminated earlier in accordance with the terms of this Agreement (“Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for the renewal term specified in the applicable Service Order (each, a “Renewal Term” and collectively, with the Initial Term, the “Term”), unless either party notifies the other party of its intent to not renew at least thirty (30) days prior to the expiration of the then-current Term.
(b) Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 60 days of receiving written notice of the material breach from the non-breaching party. If Subscriber fails to timely pay any fees, AptEdge may, without limitation to any of its other rights or remedies, suspend performance of the AptEdge Services until it receives all amounts due.
(c) Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber and its Authorized Users will stop all access to and use of the Services, (b) Subscriber will pay to AptEdge any fees or other amounts that have accrued prior to the date of such termination, (c) any and all liabilities accrued prior to the date of such termination will survive, and (d) Subscriber will provide AptEdge with a written certification signed by an authorized Subscriber representative certifying that all use of the AptEdge Services by Subscriber has been discontinued. If this Agreement is terminated prior to the end of the Initial Term, Subscriber will pay all fees owed for the remainder of the Initial Term unless the Agreement was terminated by Subscriber in accordance with Section 5(b).
(d) Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 4(c) (“Post-Termination Obligations”), Section 4(d) (“Return of Subscriber Data”), this Section 4(e) (“Survival”), Section 5 (“Confidentiality”), Section 6 (“Warranties and Disclaimer”), Section 7 (“Indemnification”), Section 8 (“Limitation of Liability”), and Section 9 (“General”).
(a) For the purpose of this Agreement, “Confidential Information” means any and all non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient. The AptEdge Services and the pricing and terms of this Agreement are AptEdge’s Confidential Information and Subscriber Data is Subscriber’s Confidential Information.
(b) Each of the parties agrees: (i) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those employees and subcontractors hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (iii) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. Each party shall be responsible and liable for any breach of this Section 5 by its employees and subcontractors. Notwithstanding the foregoing, Confidential Information that is protectable as a trade secret will remain so as long as it remains qualified for such a designation under applicable law.
(c) Notwithstanding anything to the contrary in this Agreement, AptEdge may maintain, use and publish general, anonymous, non-personally identifiable, aggregated statistical data and information based on Subscriber Data and Subscriber’s use of the AptEdge Service (“Aggregated Data”) for the purposes of benchmarking, making improvements to AptEdge’s products and services, and AptEdge marketing and promotional materials. Any such Aggregated Data shall not identify Subscriber, or any of Subscribers Authorized User.
(a) 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; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
(b) Additional Warranties by Subscriber. In addition to the representations and warranties set forth in Section 6(a), Subscriber represents and warrants that Subscriber has all rights and permissions necessary for Subscriber to provide AptEdge with or grant AptEdge access to and use of all Subscriber Data.
(c) AptEdge Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, APTEDGE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. APTEDGE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. APTEDGE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE APTEDGE SERVICES. APTEDGE DOES NOT WARRANT THAT THE APTEDGE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE APTEDGE SERVICES WILL BE SECURE OR UNINTERRUPTED. APTEDGE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE APTEDGE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE APTEDGE SERVICES WILL ALWAYS BE AVAILABLE. APTEDGE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE APTEDGE 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.
(a) Subscriber. Subscriber shall indemnify and hold AptEdge, its suppliers, employees, contractors, agents, officers and licensors harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) (“Losses”) incurred by any such parties in connection with a third party claim, action or proceeding (each, a “Claim”) arising from (i) Subscribers’ breach or violation of this Agreement; (ii) alleging that the use of the Subscriber Data in accordance with this Agreement infringes, violates, or misappropriates any third-party intellectual property or privacy rights; or (iii) gross negligence or willful misconduct of Subscriber.
(b) AptEdge. AptEdge shall indemnify and hold Subscriber its suppliers, employees, contractors, agents, officers and licensors harmless from and against any and all Losses incurred by any such parties in connection with any Claim that (i) AptEdge has violated any applicable data privacy and security Laws in connection with the performance of its obligations under this Agreement or (ii) the AptEdge Services infringe or misappropriate any U.S. patents issued as of the activation date set forth on the applicable Service Order or any copyright or trade secret of any third party during the term of this Agreement. Notwithstanding the foregoing, AptEdge shall have no indemnification obligation, , for any infringement Claims arising from (i) the combination of the AptEdge Services with any aspects of Subscriber’s business, for instance Subscriber’s content, products, services, hardware or business processes, or (ii) for any use of the AptEdge Services not in accordance with this Agreement.
(c) Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
(a) Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
(b) Cap on Liability. EXCEPT FOR EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO APTEDGE UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE CLAIM.
(c) Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY APTEDGE TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
(a) Relationship. AptEdge will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
(b) Public Reference. Subscriber consents that AptEdge may refer to Subscriber name and marks on AptEdge's website and in public logo materials. Subscriber agrees to participate in one or more of the following: a case study, a press quote, a customer testimonial, and joint participation in industry events or webinars.
(c) Feedback. To the extent Subscriber sends or transmits any communications, comments, questions, suggestions, or related materials to AptEdge, whether by letter, e-mail, telephone, or otherwise suggesting or recommending changes to the AptEdge Service including, without limitation, new features or functionality relating thereto (“Feedback”), Subscriber hereby grants AptEdge a perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Subscriber’s and its licensors’ intellectual property rights to reproduce, prepare derivative works of, distribute, perform, display, and otherwise fully use, practice and exploit such Feedback for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.
(d) Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
(e) Subcontractors. AptEdge may utilize a subcontractor or other third party to perform its duties under this Agreement so long as AptEdge remains responsible for all of its obligations under this Agreement.
(f) Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 9(f). Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
(g) Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
(h) Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
(i) Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
(j) Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the AptEdge Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the AptEdge Services will immediately terminate.
(k) Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
(l) Entire Agreement. This Agreement together with all exhibits attached hereto, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the AptEdge Services, and supersedes any prior or contemporaneous communications, representations, or agreements between the parties with respect to the subject matter hereof. No employee, agent, or other representative of AptEdge has any authority to bind AptEdge with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. AptEdge will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless AptEdge specifically agrees to such provision in writing and signed by an authorized agent of AptEdge.