Apptimize Terms of Service 2019
Apptimize SaaS Subscription Agreement
This Apptimize SaaS Subscription Agreement (“Agreement”) is entered into by and between Apptimize, Inc., a Delaware corporation with a place of business at 330 Townsend Street, Suite 234, San Francisco, CA 94107 (“Apptimize”), and with the entity identified in the relevant Order Form (“Customer”) (individually, a “Party” or collectively, the “Parties”) referencing this Agreement. The term “Party” includes any person acting on behalf of either Party as individual contractors, directors, legal and accounting advisors, employees, and Affiliates (“Representatives”). “Affiliate” means a business entity controlling, controlled by or under common control, directly or indirectly, with a Party. For purposes of defining Affiliate only, “control” means ownership of more than fifty percent (50%) of the voting stock or other voting ownership interest in an entity.
WHEREAS, Apptimize develops and provides its customers access to software services including, but not limited to, running A/B tests, rolling out and managing new features, and delivering personalized user experiences, as further described herein and on relevant Order Forms (“Services”); and
WHEREAS, Customer desires to access the Services, and Apptimize desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Access and License to the Services
Subject to Customer’s compliance with the terms of this Agreement, Apptimize grants Customer a limited, non-exclusive, non-transferable right to (i) access and use the Services described in a fully executed order form (each, an “Order Form”) during the term set forth in such Order Form (“Term”), (ii) incorporate the Apptimize software development kit(s) specified on the Order Form (“SDK”), in object code form only, into one or more Customer software applications that communicate with the Services (each a “Customer Application”), and (iii) distribute the SDK in object code form only as part of a Customer Application.
2. Security; Support; Services Levels
Apptimize will use commercially reasonable efforts to maintain the security and integrity of the Services and will provide support for the Services as specified in the Order Form. If the Services become substantially unavailable to Customer due to defects with the Services, Apptimize will respond to Customer (i) within twenty-four (24) hours from Customer’s notification to Apptimize of such unavailability, if such notice is provided during normal business hours (Monday-Friday, 9:00 a.m. – 6:00 p.m. Pacific Time), or (ii) within twenty-four (24) hours of the start of the next business day, if outside of the normal business hours. Apptimize will use commercially reasonable efforts to ensure 99% Services Availability. “Services Availability” means the percentage of a particular month (based on 24-hour days for the number of days in the month) that the Services were available for access. Apptimize may periodically schedule maintenance for the Services (“Scheduled Maintenance”), which downtime does not factor into Services Availability (provided that Apptimize will endeavor to provide Customer with twenty-four (24) hours notice prior to any Scheduled Maintenance). Unavailability of the Services for five (5) consecutive days or Apptimize’s failure to meet the Services Availability commitment for two (2) consecutive months will constitute a material breach of the Agreement.
3. 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 will have no obligation under this Agreement or otherwise to provide any such Updates or any other additional support for the Services or the SDK. Apptimize may cease supporting old versions or releases of the Services or the SDK at any time in its sole discretion, but Apptimize will use commercially reasonable efforts to provide Customer with sixty (60) days’ prior notice thereof.
4. Ownership of Data; Aggregated Statistics and Feedback
As between Apptimize and Customer, Customer owns and reserves all right, title and interest in Customer Data. “Customer Data” means any data, information, or material provided, uploaded, or submitted by Customer to and/or through the Services in the course of using the Services, including any such 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 Services, 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. Apptimize is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services 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 Services by any person to whom Customer has given access to the Services, 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 payments to Apptimize are delinquent for more than thirty (30) days. 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. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Apptimize IP. For purposes of this Agreement, “Apptimize IP” means the Services and any and all intellectual property provided to Customer in connection with the foregoing. Apptimize IP includes Aggregated Statistics (as defined in Section 7.3 below) and any information, data, or other content derived from Apptimize’s monitoring of Customer’s access to or use of the Services. Customer may from time to time provide suggestions, comments or other feedback to Apptimize with respect to the Services or SDK (“Feedback”). Customer grants 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 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.
5. Fees; Invoices; Taxes
Customer will pay Apptimize fees for the Services as set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, all Fees will be invoiced annually in advance and all invoices are payable in U.S. dollars within thirty (30) days from the date of the 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 is responsible for all taxes associated with Services other than taxes based on Apptimize’s net income. All payment obligations are non-cancelable, and all Fees paid are non-refundable and are not subject to set-off. In addition, Customer will reimburse Apptimize for travel and other expenses stated in an Order Form. Fees for any renewal will be at Apptimize’s standard rates in effect at the time of the renewal; for sake of clarity, except as expressly provided in an Order Form, the renewal of any promotional, discounted, or one-time Fees will be at Apptimize’s applicable list price in effect at the time of a renewal.
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 Services or SDK (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services or SDK; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or SDK; (iv) use the Services or SDK for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services, 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 Services or any portion or functionality of or enabled by the Services; (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 Services or SDK to develop 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 Services, including but not limited to uploading Customer Data onto the Services. Customer shall use the Services in compliance with all applicable laws and regulations. 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 Services, 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 Services or any activities conducted on the Services; or (ii) bypass any measures Apptimize may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).
7.1. Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any 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 without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
7.2. Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants to Apptimize a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Apptimize to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics (as defined below).
7.3. Apptimize shall have the right to collect and analyze data and information related to Customer’s use of the Services that is used by Apptimize in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Apptimize and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Apptimize. Customer acknowledges that Apptimize may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Apptimize may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided, however, that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
8. Term; Termination
8.1. This Agreement is effective on the start date of the first Order Form processed under this Agreement or the Effective Date specified in this Agreement (if any), whichever occurs first, and will continue until terminated. If the Services continue to be provided under an Order Form after termination of this Agreement, then this Agreement will continue to be in effect until the Order Form is terminated or the obligations under the Order Form are completed.
8.2. (i) Apptimize may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Apptimize’s delivery of written notice thereof; (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.3. Notwithstanding anything to the contrary in this Agreement, Apptimize may temporarily suspend Customer’s access to any portion or all of the Services if: (i) Apptimize reasonably determines that (A) there is a threat or attack on any of the Services; (B) Customer’s use of the Services disrupts or poses a security risk to Apptimize or any of its other customers or vendors; (C) Customer is using the Services for fraudulent or illegal activities; or (D) Apptimize’s provision of the Services to Customer is prohibited by applicable law; or (ii) Customer fails to pay applicable fees in accordance with Section 5 (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Apptimize will provide written notice of any Service Suspension to Customer and updates regarding resumption of access to the Services following any Service Suspension. Apptimize will resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Apptimize will have no liability for any damage, liabilities, losses, or any other consequences that Customer may incur as a result of a Service Suspension.
9.1. Apptimize Indemnification. (i) Apptimize shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Apptimize in writing of the claim, cooperates with Apptimize, and allows Apptimize sole authority to control the defense and settlement of such claim. (ii) If such a claim is made or appears possible, Customer agrees to permit Apptimize, at Apptimize’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Apptimize determines that neither alternative is reasonably available, Apptimize may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. (iii) This Section 9.1(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Apptimize or authorized by Apptimize in writing; (B) modifications to the Services not made by Apptimize; or (C) Customer Data.
9.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Apptimize’s option, defend Apptimize from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Apptimize or authorized by Apptimize in writing; or (iv) modifications to the Services not made by Apptimize, provided that Customer may not settle any Third-Party Claim against Apptimize unless Apptimize consents to such settlement, and further provided that Apptimize will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its choice.
9.3. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND APPTIMIZE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Disclaimer of Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES 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. 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. THE LIMITATIONS IN THIS SECTION 10 WILL NOT APPLY TO EITHER PARTY’S LIABILITY FOR INTENTIONAL MISCONDUCT, DEATH OR PERSONAL INJURY, ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
11. Force Majeure
Neither Party shall be liable hereunder by reason of any delay or failure in the performance of its obligations if such delay arises out of causes beyond its control including, without limitation, use of the internet and electronic communications, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, internet failures or malfunction, severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties (“Force Majeure Event”). The Party prevented from performing its obligations or duties because of a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and, if applicable, with notice of the termination thereof.
Neither this Agreement nor the license granted herein may be assigned by Customer, in whole or in part, without the prior written consent of Apptimize. The dissolution, merger, consolidation, reorganization, sale or other transfer of assets, properties, or controlling interest of twenty percent (20%) or more of Customer shall be deemed an assignment for the purposes of this Agreement. Any assignment without the prior written consent of Apptimize shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Apptimize directly or indirectly owning or controlling 20% or more of Customer shall entitle Apptimize to terminate this Agreement for cause immediately upon written notice.
Apptimize may give notice by means of a general notice on the Services, email to Customer’s email address on record with Apptimize, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Apptimize’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail or pre-paid post) or posting as a general notice on the Services, or twelve (12) hours after sending (if sent by email). Customer may give notice to Apptimize (such notice shall be deemed given when received by Apptimize) at any time by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to Apptimize at the following address: Apptimize, Inc., 330 Townsend Street, Suite 234, San Francisco, CA 94107, USA. Notice to Apptimize also shall be sent to email@example.com.
Customer allows Apptimize to: (i) use Customer’s name and logo as an Apptimize customer in Apptimize’s marketing materials, including its website; (ii) issue a press release indicating that Customer has agreed to license the Services; and (iii) publish a case study that describes how the Services were by Customer, subject to Customer’s prior review and approval.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. This Agreement will be construed and governed by the laws of the State of California, without giving effect to its conflicts of law principles. The Parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement will be brought solely in, the state courts of the State of California for the county of San Francisco or the United States District Court for the Northern District of California, if such court has subject matter jurisdiction. Notwithstanding the foregoing, either Party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning this Agreement, the prevailing Party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.