Terms of Service
These Terms of Service (“Terms”) constitute a binding contract between you, the customer that is set forth on an applicable Order Form ("Customer," "you, "or "your") and Aptly, Inc. ("Aptly," "we, "or "us").These Terms include and incorporate the Order Form with which you purchased the Services and any subsequent Order Forms (submitted in written or electronic form) (collectively, “Agreement”). Aptly wishes to provide, and you wish to have the right to access pursuant to the terms of this Agreement, a subscription service. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services. By browsing or otherwise accessing or using the Services, you represent that you have read, understand, and agree to be bound by the Agreement. In the event of any inconsistency or conflict between the Terms and any Order Form, the terms of the Order Form control.
1.Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Applicable Law” means all federal and state laws, regulations, and guidelines that apply to Services, including but not limited the California Consumer Privacy Act of 2018 (AB-375) (“CCPA”) and the General Data Protection Act of 2016 (Regulation (EU) 2016/679).
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Aptly for the Services, which Aptly may modify from time to time.
“Order Form” means an invoice, order form, quote or other similar document that sets forth the specific Services and pricing therefor, and that references this Agreement and is mutually executed by the parties.
“Services” means the products and services that are ordered by or made available to Customer under an Order Form, including, where applicable the Software, services, Documentation and website made available online by Aptly or described in any Documentation.
“Software” means (i) Aptly proprietary software, and (ii) and (ii) open-source software used by Aptly in providing the Services which may integrate with Customer’s Third-Party Services, devices, network, or applications, and any updates, fixes or patches developed from time to time.
“Term” has the meaning set forth in Section8.1.
2.Services
2.1 Provision of Aptly Platform. Subject to the terms and conditions of this Agreement, Aptly hereby grants Customer and its registered employees and contractors (“Authorized Users”) anon-exclusive, non-sublicensable, non-transferable right and license to use and access the Services, solely for use by Authorized Users in accordance with the terms and conditions herein. The Services are subject to modification from time to time at Aptly’s sole discretion, provided the modifications do not materially diminish the functionality of the Services provided by Aptly.
2.2 Data Security. Aptly maintains a commercially reasonable security program that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to Aptly or the Services (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Solely if and to the extent Aptly processes Customer Personal Data (as defined in the DPA) that is subject to the GDPR (as defined in the DPA), the GDPR Data Processing Addendum provided on https://Aptly.com/dpa will apply (“DPA”). Solely if and to the extent Aptly processes Customer Personal Information (as defined in the CCPA Addendum) that is subject to the CCPA (as defined in the CCPA Addendum), the CCPA Addendum provided on https://Aptly.com/ccpa will apply.
2.3 Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”).Customer will not, and shall ensure that its Authorized Users will not, directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code, object code or underlying structures, ideas or algorithms of the Services or any data related to the Services;
(b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable;
(c) use or access the Services to develop a product or service that is competitive with Aptly’s products or Services or engage in competitive analysis or benchmarking.
(d) share, transfer, distribute, resell, lease, license, or assign Services or otherwise offer the Services on a standalone basis; or
(e) otherwise use the Services outside the scope expressly permitted hereunder and in the applicable Order Form.
2.4 Privacy Policy. All Customer Data we collect through the Services is subject to our Privacy Policy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy, found at https://Aptly.com/privacy.
2.5 Rights. Aptly reserves the right to suspend Customer’s (or any Authorized User’s) access to the Services immediately (i) if Customer breaches this Section, Section 2.3 or Section 4 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect customers or Authorized Users.
2.6 Customer Responsibilities.
(a) Customer will only use the Services in accordance with the Documentation and as set forth in this Agreement. Customer acknowledges that Aptly’s provision of the Services is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the Services under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Aptly promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software, and ancillary services needed to connect to, access or otherwise use the Services, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Aptly will have no liability for such failure (including under any service level agreement, if applicable). In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Services.
(c) Customer will not use the Services to transmit or provide to Aptly any financial or medical information of any nature, or any sensitive personal data (e.g ., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
(d) Customer’s use of third-party products or services that are not licensed to Customer directly by Aptly (“Third Party Services”) shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. Aptly does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. Customer agrees to waive any claim against Aptly with respect to any Third-Party Services.
(e) Customer may enable integrations between the Services and Third-Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third-Party Services, Customer is instructing Aptly to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing all instructions to the Third-Party Service provider about the use and protection of Customer Data. Aptly and Third-Party Service providers are not sub-processors of each other.
(f) Customer acknowledges and agrees that the Services will require Authorized Users to share with Aptly certain information which may include personal information regarding Authorized Users (such as usernames, passwords, email address and/or phone number) solely for the purposes of providing and improving the Services. Prior to authorizing an individual to become an Authorized User, Customer is fully responsible for obtaining the consent of that individual, in accordance with Applicable Law, to the use of his/her information by Aptly, which use is described in Aptly’s Services Privacy Notice, located at https://goaptly.io/privacy.Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become an Authorized User.
(g) Customer will be fully responsible for Authorized Users’ compliance with this Agreement and any breach of this Agreement by an Authorized User shall be deemed to be a breach by Customer. Aptly’s relationship is with Customer and not individual Authorized Users or third parties using the Services through Customer, and Customer will address all claims raised by its Authorized Users directly with Aptly.
3. Fees
3.1 Fees. Customer will pay Aptly the fees set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Aptly reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the initial term, as specified in the Order Form, or then current renewal term, upon thirty(30) days prior notice to Customer (which may be sent by email).
3.2 Late Payment. Aptly may suspend access to the Services immediately upon notice if Customer fails to pay any amounts hereunder at least fifteen (15) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Aptly. Customer will not withhold any taxes from any amounts due to Aptly.
4.Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Aptly exclusively owns all right, title and interest in and to the Services and Aptly’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information. Customer hereby grants Aptly a non-exclusive right and license to use the Customer Data to provide the Services to Customer and as set forth in this Agreement.
4.2 Feedback. Customer may from time to time provide Aptly suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. Aptly will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Aptly will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law. Neither party will disclose the terms of this Agreement to any third party, except that Aptly may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non- breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.4 Machine Learning and Aggregation. Customer acknowledges that a fundamental component of the Services is the use of data aggregation and machine learning for the purpose of improving and providing Aptly’s products and services. Notwithstanding anything to the contrary, Customer hereby grants to Aptly the right to use (during and after the Term hereof) information submitted using the Services to aggregate personally identifiable information and de-identify and/or anonymize such information, including information related to vendors and train its algorithms internally through machine learning techniques for such purpose.
4.5 Performance Metrics. Customer acknowledges and agrees that Aptly has the right to aggregate, collect and analyze data and other information relating to the access or use of the Services by or on behalf of Customer or any Authorized User, including any performance, analytics or statistical data and shall be free (during and after the Term hereof) to (i) use such data and other information to improve Aptly’s products and services, and (ii) disclose such data and other information solely in an aggregated and de-identified or anonymized format.
5.Warranties and Disclaimers
5.1 Aptly. Aptly represents and warrants that it will not knowingly include, in the Services released to Authorized Users and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as viruses, disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or Authorized User data. If, at any time, Aptly fails to comply with the warranty in this Section 5.1, Customer may promptly notify Aptly in writing of any such noncompliance. Aptly will, within 30 days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable correction plan is not established during such period, Customer may terminate this Agreement and receive a refund of any pre-paid but unearned subscription fees, prorated on a monthly basis, as its sole and exclusive remedy for such noncompliance. This provision does not apply to Customer’s use of free Services.
5.2 Customer. Customer warrants that it has, or will have all rights necessary, prior to Aptly providing Services, to provide any information (including personal information of Authorized Users), data or other materials that it provides hereunder, including express consent from its Authorized Users, and to permit Aptly to use the same as contemplated hereunder.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, APTLY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EACH PARTYDISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OFMERCHANTABILITY, TITLE, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULARPURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SERVICES IS BASED ON PREDICTIVESTATISTICAL MODELS, AND ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOTREPLACE, CUSTOMER’S IT HELPDESK. THE SERVICES MAY CONTAIN BUGS, MAKE ERRORS ORMISINTERPRET IT ISSUES, AND IN SUCH CASES APTLY CAN DISENGAGE ANY FUNCTIONALITYOF THE SERVICES AT CUSTOMER’S REQUEST. APTLY DOES NOT REPRESENT OR WARRANT THATANY OR ALL IT HELPDESK TICKETS WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILLNOT BE REQUIRED TO RESOLVE AN IT HELPDESK TICKET.
5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THEOPTION TO PARTICIPATE IN A PROGRAM WITH APTLY WHERE CUSTOMER GETS TO USE ALPHAOR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY APTLY. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND AREPROVIDED “AS IS”. APTLY DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVELCOMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OFMERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR APTLY MAY TERMINATE CUSTOMER’S ACCESS TO THEBETA PRODUCTS AT ANY TIME.
6.Indemnification
6.1 Indemnity by Aptly. Aptly will defend Customer against any claim, demand, suit, or proceeding (“ Claim ”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes a United States patent or copyright or misappropriates a trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Aptly) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Aptly of such Claim, (b) Aptly will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Aptly may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability)and (c) Customer reasonably cooperates with Aptly in connection therewith. If the use of the Services by Customer has become, or in Aptly’s opinion is likely to become, the subject of any claim of infringement, Aptly may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Aptly will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Services by Customer not in accordance with this Agreement; (C) modification of the Services by any party other than Aptly without Aptly’s express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing (clauses (A) through (E), “ Excluded Claims ”). This Section states Aptly’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Aptly against any Claim made or brought against Aptly by a third party arising out of the (i) Customer breach of any laws or regulations (including with respect to privacy); (ii) Customer’s or any Authorized User's use of the Services; (iii)Customer’s violation of any agreements it has with any Authorized User; or (iv)Excluded Claims, and Customer will indemnify Aptly for any damages finally awarded against (or any settlement approved by Customer) Aptly in connection with any such Claim; provided that (a) Aptly will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Aptly’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Aptly of all liability) and (c) Aptly reasonably cooperates with Customer in connection therewith.
7.Limitation of Liability
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE,WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANYINDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANYCHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES ORBUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA,EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVEKNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING A PARTY’S INDEMNIFICATIONOBLIGATIONS OR THE BREACH OF SECTION 2.3 (LIMITATIONS), SECTION 2.6 (CUSTOMERRESPONSIBILITIES), OR SECTION 3 (FEES), ANY DIRECT DAMAGES, COSTS, ORLIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLEORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.Termination
8.1 Term. The term of this Agreement will commence on the effective date of the initial Order Form and continue until terminated as set forth below (“Term”). The initial term of each Order Form will begin on the Order Form effective date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the Term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty ( 3 0) days after written notice of such breach or (b) subject to Applicable Law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9. General
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services.
9.2 Publicity. Customer agrees that Aptly may refer to Customer’s name and trademarks in Aptly’s marketing materials and website; however, Aptly will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.
Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Aptly may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://Aptly.com.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Aptly with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Aptly, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of any conflict between this Agreement and the DPA or CCPA Addendum, the DPA and/or CCPA Addendum, as applicable, will govern
9.10 Force Majeure. Neither Party will be deemed in breach, hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“ Force Majeure Event ”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Government Terms. Aptly provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Services was developed fully at private expense.
9.12 Interpretation. For purposes hereof, “including” means“ including without limitation”
