Apptimize, Inc.

Service Terms and Conditions

PLEASE READ THESE SERVICE TERMS AND CONDITIONS (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY APPTIMIZE, INC. (“APPTIMIZE”). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THE CURRENT VERSION OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER” OR “YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER (IF CUSTOMER IS AN ENTITY). APPTIMIZE MAY UPDATE THE AGREEMENT AT ANY TIME. THE CURRENT VERSION OF THE AGREEMENT CAN BE REVIEWED BY CLICKING THE “TERMS OF SERVICE” HYPERLINK LOCATED AT THE BOTTOM OF THE WEB PAGES OF APPTIMIZE.COM.

1. Customer Account. In order to access and use the Services, Customer may be required to register for an account with Apptimize (“Customer Account”). Customer must keep all information (including any passwords and account ids) related to Customer’s Account confidential and you must immediately notify Apptimize if there is any unauthorized activity in your Customer Account or if your login credentials have been compromised. Customer is responsible for all activities associated with Customer Account, including those activities of any Customer employee, independent contractor or other third party acting on behalf of Customer. The information you provide to Apptimize when you register for a Customer Account must be accurate, complete and you must keep this information current. By registering for a Customer Account with Apptimize, you authorize Apptimize to contact you by email or through your Customer Account regarding any notices or other information related to your Customer Account or the Services.

2. Access to the Service. Subject to Customer’s compliance with the terms and conditions of this Agreement and for the Term of this Agreement: (i) Apptimize grants Customer the right to access and use the services specified in Customer’s Account or separate Order Form (collectively, the “Service,” or “Services”) during the Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Apptimize’s applicable user documentation; and (ii) Apptimize grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable license to (a) incorporate the Apptimize SDK(s) specified in Customer’s Account or separate Order Form (the “SDK”), in object code form only, into one or more Customer software applications that communicate with the Service (each a “Customer Application”), and (b) distribute the SDK in object code form only as part of a Customer Application.

3. Modifications. Apptimize shall have the right (but not the obligation), at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Services or by sending you an e-mail. Apptimize may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Apptimize shall not be liable to Customer or any third party for any modification, suspension or discontinuance of all or any portion of the Service.

4. Changes to Services or SDK. If Apptimize provides Customer with any upgrades, patches, enhancements, or fixes for the Services or the SDK (“Updates”), then such Updates will become part of the Services or the SDK, respectively, and subject to this Agreement. Notwithstanding the foregoing, Apptimize shall have no obligation under this Agreement or otherwise to provide any such Updates or any other support for the Services or the SDK to Customer. Customer understands that Apptimize may cease supporting old versions or releases of the Services or the SDK at any time in its sole discretion; provided, however, that Apptimize shall use commercially reasonable efforts to give Customer sixty (60) days prior notice thereof.

5. Ownership; Feedback. Apptimize retains all right, title, and interest in and to the Services and SDK, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Apptimize for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Subject to the preceding sentence, Customer shall retain all right, title and interest in and to all Customer’s designs, discoveries, inventions, products, computer programs, procedures, developments, business plans, documents, and information related to the Customer Applications, as well as all Customer Data generated by Customer Applications, including all intellectual property rights therein. Customer may from time to time provide suggestions, comments or other feedback to Apptimize with respect to the SDK and/or the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Apptimize notwithstanding anything else. Customer shall, and hereby does, grant to Apptimize a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Apptimize of any confidentiality obligations it may have hereunder with respect to Customer Data. Nothing in this Agreement will impair Apptimize’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute. For the avoidance of doubt, enhancements to the Services or to SDK made during this Agreement, even if made in whole or in part as a consequence of Feedback provided by Customer, belong exclusively to Apptimize.

6. Fees and Payment. Apptimize offers different pricing plans (including a free plan) for its Customers based on tiers related to Customer’s Monthly Active Users (“MAU”). MAUs are tracked as the number of users who open Customer’s Application at least once in a given month. The fees paid by Customer for the Services are specified in either the MAU tier plan chosen by Customer at https://apptimize.com/pricing or on the separate Order Form entered into between Customer and Apptimize (“Fees”).

   If Customer elects to use paid aspects of the Service, then Customer agrees to the pricing and payment terms listed at https://apptimize.com/pricing, which Apptimize may update from time to time. The Fees may include a monthly fee for the Services along with any additional charges for any MAU overages when Customer exceeds its MAU tier plan. Unless otherwise specified, all Fees shall be invoiced monthly in advance (except for any overage charges which may be billed in arrears) and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services other than taxes based on Apptimize’s net income. All fees paid to Apptimize for the use of the Services are non-refundable and are not subject to set-off.

   Apptimize may add new services or features for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion. Apptimize may also modify the various pricing plans (including the tiers for the MAUs) and apps associated with the MAU plan chosen by Customer. Any changes in the Fees or charges shall become effective in the billing cycle following notice of such change to Customer as provided in this Agreement. Apptimize may disable Customer’s account for non-payment at any time. In addition to the amount due for the Service, delinquent accounts or chargebacks will be charged with fees or charges that are incidental to the collection of delinquent accounts or chargebacks including, but not limited to, collection fees, convenience fees, reasonable attorneys’ fees or any other third parties’ charges. Customer agrees Apptimize may contact Customer by electronic mail at the address provided by Customer to Apptimize with respect to any delinquent accounts. For the paid monthly plans, your plan will automatically renew each month and you will be billed each month for the use of the Services and, if applicable, any MAU overage charges. If Customer has provided credit card information to Apptimize at the time Customer registered for an account with Apptimize, then Customer understands and hereby authorizes Apptimize to charge Customer’s credit card a recurring fee, which will be automatically billed monthly unless Customer cancels in advance. Customer may upgrade or cancel Customer’s MAU tier plan and the use of the Services by writing to Apptimize at Apptimize Inc., 330 Townsend Street Suite #234, San Francisco, California 94107.

   All information provided by Customer to Apptimize in connection with a purchase or transaction or other monetary interaction with the Service must be accurate, complete and current. Customer agrees to pay all charges incurred by users of your credit card, debit card or other payment method used in connection with the purchase or transaction related to the Service at the prices in effect when such charges are incurred.

   Apptimize offers certain MAU plans free of charge with limited MAUs and apps as listed at https://apptimize.com/pricing. Apptimize may change the Service (including, but not limited to, modifying the number of MAUs and apps) offered with any of its free plans at any time. Apptimize may also choose to discontinue offering the Service for free at any time and in its sole discretion. If Customer wants to cancel its plan and use of the Service, then Customer can do so by writing to Apptimize at Apptimize Inc., 330 Townsend Street Suite #234, San Francisco, California 94107.

7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), 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 Service or SDK (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service or SDK; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or SDK; (iv) use the Service or SDK for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service, SDK, or any portion thereof; (vi) block, disable, hide or limit in any way the ability of any device (whether or not such device includes a Customer Application) to access the Service or any portion or functionality of or enabled by the Service; (vii) modify or extend the SDK to any extent; (viii) contaminate, incorporate, integrate, link or bundle any portion of the SDK with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; or (ix) use the Service or SDK to build an application or product that is competitive with any Apptimize product or service. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer shall use the Service in compliance with all applicable laws and regulations, (including providing the appropriate notice and obtaining the necessary consents and releases from Customer’s end users regarding the collection, disclosure, transferring and processing of Customer’s end users’ data in order for Customer to use that data in connection with the Service and for Apptimize to provide the Service). Customer shall not (and shall not permit any third party to), directly or indirectly, (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (iv) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Apptimize or any third party; or (v) impersonates any person or entity, including any employee or representative of Apptimize. Additionally, Customer shall not: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures Apptimize may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer agrees that monetary damages are insufficient to compensate Apptimize for any breach of Customer’s obligations to Apptimize set forth in this Section and that Apptimize is entitled to and may seek injunctive or similar relief for any such breach.

8. Promotion. Customer agrees to allow Apptimize to: (i) use Customer’s name and logo as an Apptimize customer in Apptimize’s marketing materials including on its website; (ii) issue a press release within two (2) weeks of the Effective Date indicating that Customer has agreed to take a license to the Service, the contents of which will be pre-approved by Customer and which shall not be unreasonably withheld; and (iii) publish a case study that describes how the Service was used to solve Customer’s business needs, subject to Customer’s prior review and approval.

9. Customer Data. For purposes of this Agreement, “Customer Data” shall mean any applications, data, information or material provided, uploaded, or submitted by Customer to the Service in the course of using the Service, including any such applications, data, information or material maintained within Customer Applications or on servers supporting Customer Applications and any data within Customer’s private storage area on the Service, if any. Customer, not Apptimize, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, including obtaining all rights, releases and consents related to the collection, use, transfer and disclosure of Customer Data in order for Customer to use that data in connection with the Service and in order for Apptimize to provide the Service. Apptimize is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Apptimize’s gross negligence or willful misconduct. Apptimize shall maintain compliance with industry standard security precautions with respect to Customer Data. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, and any person who gains access to Customer Data, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer hereby grants Apptimize a limited, non-exclusive, sublicensable, transferable, fully-paid, worldwide right and license to use Customer Data solely for purposes of improving, testing, operating, promoting and marketing the Service, and without any requirement of attribution to Customer. As between Apptimize and Customer, Customer shall own and hereby reserves all right, title and interest in the Customer Data.

10. Term; Termination. Unless earlier terminated in accordance with this Section, the term of this Agreement (the “Term”) shall be as set forth on the separate Order Form executed by Customer or in the pricing plan chosen by Customer at https://apptimize.com/pricing. In the event of a material breach of this Agreement by the either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Apptimize may suspend Customer’s password, account or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s material breach of this Agreement results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Apptimize’s ability to provide access to the Service to other customers; provided that: (a) Apptimize shall use reasonable good faith efforts to work with Customer to resolve or mitigate the consequences of such breach in order to resolve the issue without resorting to suspension; (b) prior to any such suspension, Apptimize shall use commercially reasonable efforts to provide notice to Customer describing the nature of the breach; (c) Apptimize shall reinstate Customer’s password, account, or use of the Service, as applicable, if Customer cures such breach within thirty (30) days of receipt of such notice; and (d) if Customer fails to cure such breach within such cure period, Apptimize may, in its sole discretion, terminate this Agreement. Either party may terminate this Agreement provided written notice is provided to the other party no less than seven (7) days prior to the end of any one-month term. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, restrictions set forth in Section 7 hereof, indemnity and limitations of liability.

11. Indemnification. Customer shall defend, indemnify, and hold harmless Apptimize, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) Customer’s use or misuse of, or access to, the Service or otherwise from Customer Data, (ii) Customer’s violation of this Agreement, (iii) infringement by Customer, or any third party using Customer’s account, of any intellectual property or other right of any person or entity, or (iv) a claim alleging that any Customer Data infringes the rights of, or has caused harm to, a third party. Apptimize reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer shall assist and cooperate with Apptimize in asserting any available defenses.

12. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND THE SDKS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. APPTIMIZE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. APPTIMIZE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. APPTIMIZE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT APPTIMIZE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. APPTIMIZE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. APPTIMIZE EXPRESSLY DISCLAIMS LIABILITY ARISING OUT OF CUSTOMER’S USE OF THE SERVICE.
    Limitation of Liability. IN NO EVENT SHALL APPTIMIZE, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO APPTIMIZE HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

13. Miscellaneous. This Agreement represents the entire agreement between Customer and Apptimize with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Apptimize with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving written notice to the other party. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Apptimize shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Apptimize’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not assignable, transferable or sublicensable by Customer except with Apptimize’s prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Apptimize may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Apptimize to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit Apptimize’s rights with respect to such breach or any subsequent breaches.