Aplicor General Terms and Conditions
THE GENERAL TERMS AND CONDITIONS SET OUT BELOW ARE PART OF YOUR AGREEMENT WITH US GOVERNING YOUR ACQUISITION AND USE OF OUR SERVICES ("AGREEMENT").
THE ORDER FORM IS ALSO PART OF THE AGREEMENT, TOGETHER WITH ANY SOW. YOU ACCEPT THE AGREEMENT BY EXECUTING A PRINTED VERSION OF THE ORDER FORM.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT EXECUTE THE ORDER FORM, AND YOU MAY NOT ACCESS OR USE OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL,
THIS AGREEMENT WILL GOVERN YOUR FREE TRIAL.
“Affiliate” means any person that directly or indirectly controls, is controlled by, or is under common control with the subject person. “Order Form” means the online form or offline document for placing orders for Subscription Services. “Professional Services” means our training, consulting, development and other professional services identified in the Order Form or an SOW, but does not include the Subscription Services. “Services” means the Professional Services and the Subscription Services. “SOW” means a statement of work, the online form or offline document for placing orders for Professional Services. “Subscriber Data” means any electronic data or information submitted by you that resides in your Subscription Services environment. “Subscription Services” means our hosted customer experience solutions identified in the Order Form, and any modifications we may periodically make, but does not include the Professional Services. “Subscription Term” means the period of time specified in the Order Form during which we will provide you with paid Subscription Services, beginning on the date the Subscription Services first become available for Users to input Subscriber Data. “Users” means your employees, consultants and other personnel who you authorize to use the Subscription Services and who you or we have supplied with user identifications and passwords. “We,” “us” and “our” refer to Aplicor, Inc., a Delaware corporation. “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by us in providing the Professional Services to you. “You,” “your” and “yours” refer to the person whose name appears on the Order Form as the “Subscriber,” together with your Affiliates.
2. Access to the Subscription Services
Upon our acceptance of the Order Form, we grant you the nonexclusive right to use the Subscription Services solely for your internal business operations during the Subscription Term and subject to the terms of this Agreement. Your right to use the Subscription Services will end upon expiration or termination of this Agreement. You may allow Users to use the Subscription Services for this purpose and you are responsible for each User's compliance with this Agreement. Subject to the limited rights expressly granted under this Agreement, we reserve all right, title and interest in and to the Services and the Work Product and all our intellectual property rights and those of our licensors. No rights or licenses are granted to you under this Agreement except the right to use the Services as expressly set forth in this Agreement. We will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into our Services any suggestions, enhancement requests, recommendations or other feedback relating to the operation, modification or improvement of the Services.
3. Conditions of Use
You may not
- (i) transfer to any other person any of your rights to use the Subscription Services;
- (ii) sell, rent or lease the Subscription Services;
- (iii) make the Subscription Services available to anyone who is not a User;
- (iv) create any derivative works based upon the Subscription Services;
- (v) copy any feature, design or graphic in, or reverse engineer our intellectual property;
- (vi) access the Subscription Services in order to build a competitive solution or to assist someone else to build a competitive solution;
- (vii) use the Subscription Services in a way that violates any criminal or civil law; or
- (viii) load test the Subscription Services in order to test scalability.
4. Subscriber Data
You will provide all Subscriber Data, and we are not obliged to modify or add to Subscriber Data. You are solely responsible for the content and accuracy of Subscriber Data, which belongs to you, and we make no claim to any right of ownership in it. We will use Subscriber Data to carry out our obligations under this Agreement. We may identify trends and publish reports on our findings, which will include data aggregated from more than one subscriber and will not identify you without your permission. We will take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access. We will comply with the principles of EU Data Protection Directive 95/46 and the Telecoms Data Protection Directive as amended and any successor legislation, to the extent of and in relation to any "personal data" received by or originating from you as a "data processor" within the meaning of these directives. We will back up your Subscriber Data once in each 24-hour period.
6. Subscription Services Warranties
We warrant that:
(i) the Subscription Services will function substantially as described in this Agreement; and
(ii) we own or otherwise have the right to provide the Subscription Services to you under this Agreement. The remedies set out in this Section are your exclusive remedies for breach of either warranty.
6.1 If the Subscription Services do not function substantially in accordance with this Agreement, we will, at our option, either
(i) modify the Subscription Services to conform to this Agreement;
(ii) provide a workaround solution that will reasonably meet your requirements; or
(iii) if neither of these options is commercially feasible, end this Agreement and refund your pre-paid fees for unused Subscription Services.
6.2 If your normal operation or use of the Subscription Services is found to infringe any third party U.S. intellectual property right or if we believe that this is likely, we will, at our option, either
(i) obtain a license from such third party for your benefit;
(ii) modify the Subscription Services so that they no longer infringe; or
(iii) if neither of these options is commercially feasible, end this Agreement and refund your pre-paid fees for unused Subscription Services.
However, we have no warranty obligations for
(i) any modification to the Subscription Services, unless we approved the modification in writing;
(ii) a version of the Subscription Services that has passed its end-of-life date; or
(iii) problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond our reasonable control.
7. Professional Services
This Section applies if Professional Services are specified in the Order Form or if we enter an SOW with you. We warrant that (i) the Work Product will substantially conform to the SOW and (ii) our Professional Services will be performed with reasonable skill, care and diligence. If our Professional Services do not conform to the SOW or are not performed with reasonable skill, care and diligence, we will re-perform the Professional Services to the extent necessary to correct the defective performance. The remedies set out in this Section are your exclusive remedies for breach of either warranty. If the Order Form or SOW provides you with the right to approve or reject Work Product upon completion of any milestone, we will notify you when we complete the milestone. If you are not satisfied with the Work Product relating to that milestone, you will have five days to reject it in writing; otherwise, you will be deemed to have accepted the Work Product. You will provide us with all information, access, and full good faith cooperation reasonably necessary to enable us to deliver the Professional Services. You will perform all obligations identified in the SOW as your responsibility. If you fail to do any of these things, we will be relieved of our obligations to the extent our obligations are dependent on these things. We solely own the intellectual property in the Work Product. Upon payment in full of any amounts due for Professional Services, you will have a non-exclusive, non-transferable right to use the Work Product for your internal business purposes. This right will end upon expiration or termination of this Agreement and will be subject to the same terms and conditions as the right to use the Subscription Services.
8. Term of Agreement
This Agreement is dated and starts on the date when we have both signed the Order Form and continues until completion of the last Subscription Term under this Section 8 unless terminated earlier under Section 10. Upon completion of any Subscription Term, a new Subscription Term of equal duration will automatically begin. If you do not want a new Subscription Term to begin, you must notify us at least thirty days prior to the end of the then-current Subscription Term, in which case this Agreement will end upon completion of the then-current Subscription Term.
You will pay the fees listed in the Order Form or SOW when due, and the fees applicable to any additional Subscription Terms arising under Section 8. All Subscription Services payments must be received in advance, prior to the start of the applicable Subscription Services period. If paying by credit card, you hereby authorize us to charge your credit card as follows:
(i) upon our acceptance of an Order Form for the fees listed in that Order Form;
(ii) upon creating additional User identifications and passwords (in excess of the number listed in your Order Form) for the resulting fees prorated for the remainder
of your Subscription Term;
(iii) upon commencement of each additional Subscription Term for our published fees applicable to the additional Subscription Term and
(iv) upon our acceptance of an SOW for the fees listed in that SOW and according to the SOW payment terms. In all other cases, fees will be due upon receipt of our invoice.
You will pay a finance charge on any overdue payment of 1.5% for each month or portion of a month that the payment is overdue compounded monthly. You will pay any sales, use,
value added or other taxes or import duties (other than our corporate income taxes) due as a result of any amounts paid to us. You will bear all our costs of collection,
including reasonable legal fees. All fees paid are nonrefundable.
10. Suspension and Termination
10.1 Suspension and Termination for Non-Payment. If we do not receive any payment under this Agreement when due, we may, at our option, immediately suspend your access to the Subscription
Services. We may also suspend performance of all Professional Services. Your access to the Subscription Services will be restored only when we have received the full amount of your payment.
In addition, we reserve the right to assess a service reconnection fee, which you must also pay before your access to the Subscription Services will be restored. During any period when a
payment under this Agreement is unpaid and past due, we may also terminate this Agreement, in which case all unpaid fees for the remainder of the Subscription Term immediately fall due for
payment. After two late payments under this Agreement, you will not be eligible for monthly billing of Subscription Services. Instead, you will be billed quarterly or annually in advance,
at our option.
10.2 Termination for Other Reasons. Either party may terminate this Agreement if the other breaches any material term (other than a breach covered by Section 10.1) and the breach is not cured within 30 days of written notice from the non-breaching party describing the breach. During any period you are in material breach of this Agreement, we may, at our option, suspend all or any part of the Services instead of exercising our right to terminate this Agreement.
10.3 Procedure Following Termination. Upon termination of this Agreement, you will have 60 days to extract your Subscriber Data. We may retain your Subscriber Data in backup media for an additional period of up to 12 months, or longer if required by law. Each provision of this Agreement will continue after the Agreement ends to the extent necessary to give effect to that provision.
11. Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES NECESSARY TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SERVICES. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND WILL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE UNDER THE RELEVANT ORDER FORM OR SOW. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN YOU AND US AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO US. LIMITATIONS ON LIABILITY UNDER SECTIONS 5, 6 AND 12 ARE SET IN THOSE SECTIONS.
The Services and Work Product contain valuable trade secrets that are our sole property. You agree to use reasonable care to prevent other parties from learning of these trade secrets. You will take reasonable care to prevent unauthorized access to or duplication of the Services and Work Product. The Subscriber Data may include valuable trade secrets that are your sole property. We will take reasonable care to prevent other parties from learning of these trade secrets. We will take reasonable care to prevent unauthorized access to or duplication of your Subscriber Data. This Section does not apply to any information that
- (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party, generally known or available;
- (ii) is known by the receiving party at the time of receiving such information, as evidenced by the receiving party’s records;
- (iii) is subsequently provided to the receiving party by a third party, as a matter of right and without restriction on disclosure; or
- (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
13.1 We may make available through the Services additional features, functionality, and services offered by our third-party partners (“Add-ons”). Your use of each Add-on through the Services constitutes a binding agreement between you and the third party licensor of that Add-on (the “Add-on Provider”) under which you accept and agree to be bound by the Add-on Provider’s terms and conditions applicable to your use of the Add-on. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; we are acting as agent for the Add-on Provider that Add-on to you; we are not a party to the license between you and the Add-on Provider with respect to that Add-on; and we are not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that we are third party beneficiaries of the agreement between you and the Add-on Provider for each Add-on, and that we will have the right (and will be deemed to have accepted the right) to enforce such agreement against you as a third party beneficiary.
13.2 By utilizing an Add-on, you grant us permission to share your Subscriber Data with the Add-on Provider as necessary in order to provide you the Add-on. The license granted to you to use any Add-on is personal to you, and is not sublicensable. You may not provide or resell Add-ons to others.
14.1 We reserve the right at any time not to release or to discontinue release of any Services, to change our then-current pricing for Services, to migrate you to new releases and/or versions of the Subscription Services and to charge a migration fee, and to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Services.
- 14.2 We may list you as a customer and use your logo on our website, on publicly available customer lists, and in media releases.
- 14.3 This Agreement represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral. If there is a conflict between the General Terms and Conditions and an Order Form, the Order Form will prevail. If there is a conflict between the General Terms and Conditions and an SOW, the SOW will prevail.
- 14.4 This Agreement may be amended at any time by mutual agreement of the parties in writing.
- 14.5 The laws of Florida (excluding its choice of law rules) govern this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY CLAIM RELATING TO THIS AGREEMENT.
- 14.6 You will not assign or otherwise transfer this Agreement or any of your rights or obligations under this Agreement without our prior written consent, except to an entity
that has acquired all or substantially all of your assets or as part of a genuine corporate restructure. We may assign or otherwise transfer this Agreement or any of our rights or
obligations under this Agreement at any time without your consent. This Agreement is binding on us and on our successors and permitted assigns.
- 14.7 14.7 This Agreement may be executed in counterparts and delivered by facsimile or in portable document format (pdf). Each counterpart so executed and delivered shall
be deemed an original and all counterparts together shall constitute one and the same instrument.