EASE® Terms of Service & License Rev. 03/01/2012
These EASE Terms of Service and License are an agreement (the “Agreement”) between Apperian, Inc., a Delaware corporation (“Apperian”), and the customer. The customer (“Customer”) is identified by online registration for the EASE Standard (“Standard”) version of EASE Services or is identified in an Order Form for the EASE Enterprise version of EASE Services. EASE Standard is free of charge but its use is limited to development, evaluation, and testing of Applications. EASE Enterprise is subject to agreed Subscription Fees and allows regular use of Applications by End Users. Other differences between EASE Standard and EASE Enterprise are indicated below. UNLESS OTHERWISE INDICATED, ALL PROVISIONS IN THIS AGREEMENT APPLY TO BOTH EASE STANDARD AND EASE ENTERPRISE.
Apperian and Customer agree as follows:
1.1. Scope This Agreement governs Customer’s access to and use of EASE Services and Customer’s license to certain Downloadable Software and Downloadable Documentation. Customer’s access to and use of EASE Services, Downloadable Software, and Downloadable Documentation is expressly conditioned on Customer’s compliance with this Agreement.
1.2. Definitions For definitions of capitalized terms, see Section 14.
1.3. Notice to EASE Standard Customers (those customers who register online): BY CLICKING THE “I AGREE” BUTTON FOR THESE EASE TERMS OF SERVICE AND LICENSE OR BY USING THE EASE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO SO ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN (A) YOU REPRESENT AND WARRANT TO APPERIAN THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT AND (B) YOUR ACCEPTANCE OF THIS AGREEMENT SHALL BE TREATED AS THE AGREEMENT OF THAT COMPANY OR ENTITY.
2. LICENSE & SUBSCRIPTION.
2.1. License Grant. Apperian hereby grants to Customer, and Customer subscribes to and accepts, a limited, non-exclusive license to access and use the EASE Services during the Term, pursuant and subject to this Agreement. This license grant is subject (a) to compliance by Customer, the Customer EASE Team, and End Users with this Section 2 (License) and with Sections 4.3 (Third Party Limitations), 6 (Intellectual Property Rights), and 7 (Confidentiality), and, in the case of EASE Enterprise, the payment by Customer of all applicable Subscription Fees and (b) to the various provisions herein delineating differences between EASE Standard and EASE Enterprise. If Customer has only registered online for EASE Services, the license grant is only for the FREE EASE Standard version of the EASE Services. If Customer has entered into an Order Form with Apperian, the license grant is for the EASE Enterprise version of the EASE Services. This license and Agreement may not be transferred by Customer except as provided in Section 13.6 (Assignment).
2.2.1. Standard Term. For EASE Standard, the Term is called the “Standard Term”. It commences upon completion by Customer of its online registration for EASE Services and continues for an indefinite period, ending on the start date of the Enterprise Term (if Customer enters into an Order Form for EASE Enterprise). For EASE Standard, either party may terminate this Agreement at any time, with or without cause, by giving notice to the other party.
2.2.2. Enterprise Term. For EASE Enterprise, the Term is called the “Enterprise Term”. It commences upon the start date indicated in the Order Form and continues either on a month-to-month or year-to-year basis, as indicated in the Order Form. For a month-to-month subscription, the “Term Period” means any month during that period, which month commences on the same day as the first month in the Enterprise Term. For a year-to-year subscription, the “Term Period” means any year during that period, which year commences on the same day as the first year in the Enterprise Term. Except as otherwise specified in the applicable Order Form, the EASE Enterprise subscription shall automatically renew from month to month, if the Term Period is a month, and from year to year, if the Term Period is a year, unless either party gives the other party notice of non-renewal at least 30 days before the start of a renewal Term Period.
2.3. EASE Services. Subject to the provisions herein delineating differences between EASE Standard and EASE Enterprise and the other provisions in or referenced in Section 2.1 (License Grant), the licensed EASE Services consist of the following rights of Customer: (a) to download the EASE SDK and a Catalog from the EASE Server via the Internet to Customer computers (the Catalog is limited to a Standard Catalog unless Customer engages Apperian to create a Custom Catalog for it); (b) to use the EASE SDK to create Applications; (c) to upload Applications and a Standard Catalog or Custom Catalog to the EASE Server via the Internet; (d) to have Apperian (or its hosting provider) host the Applications and the Standard Catalog or Custom Catalog on the EASE Server; and (e) to allow End Users (i) to download the Catalog from the EASE Server to Devices and (ii) to use the Catalog to access and use the Applications on the EASE Server through the Devices. Only the Customer EASE Team may exercise these rights on behalf of Customer, not End Users in general. Additional details about the EASE Services and how to use them are provided in the Documentation, but nothing in the Documentation shall be deemed to grant any license beyond that granted herein.
2.4. Software, Documentation, and Content. With respect to Downloadable Software, the license grant is limited to the rights enumerated in Section 2.3 (insofar as applicable to that software), plus the right to make a reasonable number of copies of that software (including Applications incorporating that software) for backup and for the purposes permitted in Section 2.5.1. Apperian is only required to provide the Downloadable Software in object code form (although, in its sole discretion, it may provide some in source code format). With respect to Downloadable Documentation, the license grant is limited to the rights enumerated in Section 2.3(a) and (b) (insofar as applicable to that documentation), plus the right to make a reasonable number of copies of that documentation for use by the Customer EASE Team, but without any right to modify the documentation or distribute it further. Except as expressly provided herein with respect to Downloadable Software and Downloadable Documentation, neither Customer, Customer EASE Team, nor End Users shall copy, modify, create any derivative work from, or distribute any EASE Component, or merge it with any other software, documentation, content, or work. Customer, Customer EASE Team, and End Users shall not alter or delete any copyright, patent, trademark, or other proprietary notices from any EASE Component. Customer, Customer EASE Team, and End Users shall not translate, decompile, disassemble, or reverse-engineer any EASE Component, except to the extent that applicable law grants a right to do so that may not be waived, or electronically frame or mirror it. As provided herein, Apperian grants Customer certain limited rights to use the EASE Services; no software, documentation, or content is sold to Customer.
2.5.1. Permitted Use. FOR EASE STANDARD, CUSTOMER’S LICENSE TO EASE SERVICES IS LIMITED TO USING THEM ONLY TO DEVELOP, TEST, AND EVALUATE APPLICATIONS, NOT FOR ANY REGULAR USE BY END USERS OR ANY OTHER USE. FOR EASE ENTERPRISE, CUSTOMER’S LICENSE TO EASE SERVICES IS LIMITED TO USING THEM ONLY TO DEVELOP, TEST, EVALUATE APPLICATIONS, AND TO ALLOW END USERS TO MAKE REGULAR USE OF APPLICATIONS (THROUGH COMPATIBLE DEVICES), AND NOT FOR ANY OTHER USE.
2.5.2. Use Limitations. Customer, the Customer EASE Team, and End Users shall use the EASE Services only in accordance with this Agreement, the Documentation, and applicable laws and government regulations. Without limitation, Customer shall assure that each Application and Catalog that it uploads to the EASE Server, and that Customer’s upload themselves, meet the requirements of the Documentation and this Agreement. Customer shall not (a) allow anyone other than registered End Users and the EASE Customer Team to access or use any Application through a Catalog accessing the EASE Services, (b) allow anyone other than the EASE Customer Team to access or use any other aspect of the EASE Services, including without limitation any EASE Component, (c) upload anything other than Applications, Catalogs and Media Files to the EASE Server, (d) allow End Users to download anything from the EASE Server other than Applications, Catalogs or Media Files, or upload anything to it, (e) sell, resell, rent, lease, or sublicense the EASE Services or access to them, (f) use the EASE Services to store or transmit infringing, libelous, or otherwise unlawful works or other matter, or to violate any privacy rights, (g) use the EASE Services to store or transmit Malicious Code (including to, on, or through the EASE Server or any Device), (h) interfere with or disrupt the integrity or performance of the EASE Services or third-party data contained therein, (i) attempt to gain unauthorized access to the EASE Services or their related systems or networks, (j) use the EASE Services in order to build a competitive product or service, or copy features, functions, or graphics of the EASE Services for such purpose, or (k) use or permit the use of the EASE Services in any manner that may involve risk of death, personal injury, property damage, or environmental damage. In addition, Customer (x) shall be solely responsible for all activities of the Customer EASE Team and the End Users in connection with the EASE Services, (y) shall be solely responsible for and the accuracy, quality, integrity and legality of Customer Data and of the means by which such Customer Data was acquired, and (z) shall notify Apperian promptly of any unauthorized access or use of any Application or Catalog or the EASE Services of which Customer becomes aware.
2.5.3. No GPL Code. In its creation of Applications using the EASE SDK and in any customization of the Standard Catalog, Customer shall not embed, incorporate, link to, call, or otherwise use any code that is subject to any General Public License, Lesser General Public License, or any other license that requires in any way that if any work containing or linking to such code is licensed or otherwise transferred or made available, the license, transfer, or availability must be (a) with source code for the work available, (b) substantially free of charge for any redistribution, and/or (c) under a substantially similar license.
2.5.4. Usage Limitations. Apperian may from time to time impose other reasonable limitations on Customer’s use of EASE Services, including without limitation limits on disk storage space, on the number of Applications that Customer has on the EASE Server, and on the number of End Users.
2.6. Number of Devices. Each Device that accesses the EASE Services under Customer’s subscription may be uniquely identified and logged by Apperian.
2.6.1. EASE Standard. For EASE Standard, the number of Devices that may access and use EASE Services is limited to a reasonably small number commensurate with the limited permitted use for EASE Standard (only development, testing, and evaluation of Applications – see Section 2.5.1). Device Suppliers and other third parties may effectively impose their own limits on the number of Devices. See Section 4.3.
2.6.2. EASE Enterprise. For EASE Enterprise, unless otherwise specified in the Order Form, Customer purchases the EASE Enterprise version of EASE Services as a subscription for a Term Period for an agreed number of unique Users. If at any time Customer allows the cumulative number of unique Users that have accessed the EASE Services under Customer’s subscription during any Term to exceed that agreed number of unique Users (as it may have been previously adjusted under this Section), Customer shall be deemed to have automatically increased its subscription by the additional number of unique Users that have accessed the EASE Services, from their date of first access to the EASE Services. For each such additional User, Customers on Yearly renewals shall pay Apperian for the remainder of the Term Period in which the Device is added the same Subscription Fee per User as for the Users already in Customer’s subscription for that entire Term Period, prorated for the remainder of the Term Period. The ending date for each Term Period for each User so added to the subscription shall be the same as for the Users already in Customer’s subscription. The number of Users that are in Customer’s subscription may not be reduced within any Term Period. Device Suppliers and other third parties may effectively impose their own limits on the number of User Devices. See Section 4.3.
2.7. Customer EASE Team. The “Customer EASE Team” means all employees and agents of Customer who either (a) develop, test, and/or evaluate Applications or Catalogs for Customer and/or (b) administer the EASE Services for Customer. It does not include End Users generally; however, Customer EASE Team members may register as End Users (e.g., to test or evaluate Applications). At all times during the Term, Customer shall have one or more individual(s) on the Customer EASE Team who are Customer’s employees and who administer the EASE Services for Customer. At all times during the Term, Customer shall provide Apperian with the names and current contact information of Customer administrator(s). Each Customer administrator shall have full power and authority to deal with Apperian on all matters related to the EASE Services. The individual who registers Customer online for EASE Standard shall be deemed to be a Customer administrator. Customer may change its administrator(s) at any time by giving notice thereof to Apperian.
2.8. End Users.
2.8.1. Registration. Each End User that uses the EASE Services must register prior to using the EASE Services. Customer, through the Customer EASE Team and in the manner prescribed by the Documentation (or through Apperian at Customer’s request), must authorize each such registration. Customer, Customer EASE Team, and End Users shall keep End User passwords confidential. An End User may use more than one Device without having to re-register as an End User.
2.8.2. Who May Be an End User. Any individual may be an End User other than an individual who is an Apperian Competitor or an employee or other agent of an Apperian Competitor. End Users may include, without limitation, Customer’s employees, consultants, contractors, and agents, as well as third parties with whom Customer transacts business provided they are not Apperian Competitors. SEE SECTION 4.3 FOR CERTAIN OTHER LIMITATIONS.
2.9. Customer Responsibility. Customer shall ensure that all End Users and all Customer EASE Team members comply with this Agreement in their use of EASE Services and otherwise.
2.10. Audit. From time to time, Apperian may audit use of the EASE Services by Customer, Customer EASE Team, and End Users for compliance with this Agreement. In addition, Apperian may, through its hosting activities, monitor that use.
3. AVAILABILITY, SUPPORT, & OTHER SERVICES.
3.1. Availability. Apperian shall use commercially reasonable efforts to make the EASE Services available 24 hours a day, 7 days a week, except for (a) planned downtime for system maintenance, (b) any unavailability caused by circumstances beyond Apperian’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Apperian employees), or third party failures or delays (including those by any hosting provider or Internet service provider), and (c) support, which shall be provided as specified in Section 3.2.
3.2. Support. Customer may submit support issues and questions to the Apperian support team between the hours of 8:00 a.m. and 8:00 p.m., U.S. Eastern time, Monday through Friday, excluding U.S. and Apperian holidays. Only the Customer EASE Team may make submissions. For EASE Standard, Customer may make submissions via the e-mail address(es) and/or web portal(s) that Apperian from time to time designates. For EASE Enterprise, Customer may make submissions via the e-mail address(es), web portal(s), and/or phone number(s) that Apperian from time to time designates, and Apperian shall respond within two business days.
3.3. Custom Catalog. If indicated in an Order Form for EASE Enterprise, Customer purchases one-time services from Apperian to customize the Standard Catalog (into a Custom Catalog) by branding the Standard Catalog for Customer with Customer’s name and logo on the splash and login screens. Customer grants Apperian a license to Customer’s name, logo, and other trademarks and service marks, but only for the purpose of creating this Custom Catalog and hosting it through the EASE Services. Apperian may include “Powered by Apperian EASE Services” (or a substantially similar statement) on the splash and login screens, but in less prominence than Customer’s branding. Included with this Catalog customization are enterprise authentication configuration and testing. For EASE Standard, Apperian does not provide any Catalog customization or enterprise authentication.
3.4. Other Professional Services. If Customer desires any professional services from Apperian beyond those expressly addressed in this Agreement, the parties shall negotiate and enter into a separate written agreement for them.
3.5. No Contingency. Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by Apperian regarding future functionality or features.
3.6. Malicious Code. Apperian shall use reasonable commercial efforts not to transmit any Malicious Code to any Customer server or Device (except any Malicious Code introduced by Customer, a Customer EASE Team member, or an End User).
3.7. Customer Assistance. Customer shall, at its expense, provide all such information and assistance as Apperian may reasonably request for its rendering of support and other services hereunder.
4. THIRD PARTY MATTERS.
4.1. Required Equipment, Etc. To use the EASE Services, Devices that are compatible with those services are required. See Documentation for listing of compatible Devices. In addition, in order for the Customer EASE Team and End Users to access the EASE website(s) — the former for development, test, evaluation, and administration, and the latter to register — they will require web browsers adequate for those purposes. To develop Applications and to customize the Catalog, the Customer EASE Team will also require adequate hardware, software, and development skills and Customer may need to enter into arrangements with Device Suppliers and other third parties (see Section 4.3 on Third Party Limitations). It is up to Customer and its End Users to provide, at their expense, all such items.
4.2. Third-Party Products and Services. Any acquisition or use by Customer or an End User of third party products or services, including without limitation third party applications and implementation, customization, and other consulting services, and any exchange of data between Customer or an End User, on the one hand, and any third party provider, on the other hand, is solely between those parties. Apperian does not warrant or support any third-party products or services.
4.3. Third Party Limitations. DEVICE SUPPLIERS AND OTHER THIRD PARTIES MAY IMPOSE LIMITATIONS AND REQUIREMENTS THAT IMPACT CUSTOMER’S USE OF EASE SERVICES AND DOWNLOADABLE SOFTWARE. Without limitation, here are some examples: (a) in order for an EASE Standard Customer to develop, test, and evaluate Applications for use with iOS Devices, Customer must have a so called “ad hoc” license from Apple and each Application must have an “ad hoc” profile; (b) that ad hoc license from Apple effectively limits the number of Devices that may access EASE Services; (c) in order for an EASE Enterprise Customer to use EASE Services with iOS Devices, Customer must have a so-called “enterprise” license agreement with Apple; (d) if Customer develops Applications for use with iOS Devices and does so under an enterprise license agreement with Apple, Apple imposes its own limitations on who End Users may be; and (e) as to Applications for iOS Devices, Apple may from time to time check to see if the Application has a certificate as required by Apple. Other devices may have similar limitations. IT IS CUSTOMER’S RESPONSIBILITY TO ENTER INTO ALL NECESSARY ARRANGEMENTS WITH DEVICE SUPPLIERS AND OTHER THIRD PARTIES AND TO COMPLY WITH THOSE ARRANGEMENTS AND ANY OTHER APPLICABLE LIMITATIONS AND REQUIREMENTS OF DEVICE SUPPLIERS AND OTHER THIRD PARTIES. Customer shall indemnify, defend, and hold Apperian harmless from any Claim, loss, damage, or expense arising out of customer’s failure to do so. Any such failure shall not relieve Customer of any of its obligations under this Agreement or entitle it to any refund.
4.4. Third Party Applications and Customer Data. Customer may install third party applications on the EASE Server only with Apperian’s prior written consent and only if Customer obtains for Apperian all necessary rights for it to host such applications. If Customer installs, enables, or uses any third party application with EASE Services, whether or not it is installed on the EASE Server, Apperian is permitted to allow those third party applications (or their providers) to access Customer Data as may be required (for example, for the interoperation of such third party applications with the EASE Services). Apperian shall not be responsible for any disclosure, modification, or deletion of Customer Data resulting from any such access by third party application (or their providers). No End User may install any third party application on the EASE Server. Customer shall indemnify, defend, and hold Apperian harmless from any Claim, loss, damage, or expense arising out of any third party application that Customer or any End User installs, enables, or uses with EASE Services or out of activities by the providers of such applications.
5. FEES & PAYMENT. This Section applies to EASE Enterprise only.
5.1. Fees. The Subscription Fee is per unique User that accesses the EASE Services at any time during any Term, under Customer’s subscription. It is assessed per Term Period, which is one month, if Customer is on a month-to-month subscription, or one year, if Customer is on a year-to-year subscription. The Term Period and the initial Subscription Fee per unique User for that Term Period are as indicated in the relevant Order Form. Customer shall pay to Apperian all Subscription Fees specified in the Order Forms hereunder, as they may be adjusted for Users added to the subscription under Section 2.6.2 (Number of Users – EASE Enterprise) or as they may be adjusted under Section 5.2 (Renewal Fees). Customer shall also pay to Apperian all other fees specified in the Order Forms (for example, for creating a Custom Catalog pursuant to Section 3.3). Except as otherwise expressly agreed herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
5.2. Renewal Fees. From time to time, Apperian may change the Subscription Fee by giving notice to Customer at least 45 days before the start of the renewal Term Period to which the new Subscription Fee applies.
5.3. Invoicing and Payment. Apperian may invoice Customer in advance, unless otherwise expressly provided in the relevant Order Form. Customer shall pay each monthly invoice upon receipt, and annually billed invoice within 30 days from the invoice date. Customer shall maintain current, complete, and accurate billing and contact information with Apperian, in the manner specified by Apperian.
5.4. Overdue Fees. If any fees are not received from Customer by the due date, then at Apperian’s discretion and without affecting its other rights and remedies, such fees shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer shall pay Apperian for all reasonable costs (including legal fees) of collecting any payments that are overdue under this Agreement.
5.5. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Apperian services is 30 or more days overdue, Apperian may, at its discretion and without affecting its other rights and remedies, (a) accelerate Customer’s unpaid fee obligations under any or all such agreements so that all such obligations become immediately due and payable and/or (b) after notice to Customer, suspend Apperian’s services to Customer under any or all such agreements, until such amounts are paid in full. No such suspension of service shall extend any term of service.
5.6. Taxes. Unless otherwise stated in an Order Form, Apperian’s stated fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation value-added, sales, use, and withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Apperian has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Customer shall promptly pay the Taxes upon invoice by Apperian, except as to any Taxes for which Customer provides Apperian with a valid tax exemption certificate authorized by the appropriate taxing authority. Apperian is solely responsible for taxes assessable against it based on its net income, property and employees.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1. Reservation of Rights. As between Apperian and Customer and subject to the license granted in Section 2 to Customer, Apperian reserves all right, title and interest in and to EASE and all EASE Components, including all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Customer Data. As between Apperian and Customer, Customer shall own all right, title and interest in and to all of Customer Data input by it to the EASE Services or Applications, subject to a license to Apperian therein as necessary to provide the EASE Services to Customer.
6.3. Applications and Catalogs. As between Apperian and Customer, Customer shall own all right, title, and interest in and to any and all Applications and Custom Catalogs created by or for Customer, except that Apperian shall own all right, title, and interest in and to (a) any and all Applications and Custom Catalogs created by or for Apperian for Customer, subject to the license granted in Section 2 to Customer therein, and (b) any and all code provided by Apperian that is embedded in, incorporated into, linked to, called by, or otherwise used by any Application or Custom Catalog, including without limitation any code from the EASE SDK or Standard Catalog, subject to the license granted in Section 2 to Customer therein. As between Apperian and Customer, Apperian shall own all right, title and interest in and to any Standard Catalog and all sample Applications. Customer’s ownership interest in any Application or Custom Catalog (as provided in this Section) does not give Customer any right to use any the EASE Services or any EASE Component after the Term, or grant or extend after the Term any license in any code provided by Apperian.
6.4. Suggestions. Apperian shall own all right, title and interest in and to any and all suggestions, enhancement requests, recommendations, and other feedback provided by Customer (including the Customer EASE Team) and/or End Users, relating to any aspect of EASE or the EASE Services.
6.5. Further Assurances. Each party shall execute and deliver all such instruments and take all such actions as the other party shall from time to time reasonably request in order more effectively to convey and transfer all rights conveyed to the other party in this Section 6 (and/or cause its employees, agents, Customer EASE Team members, and End Users to do so, where requested by Apperian).
6.6. U.S. Government License Rights. Any software made available hereunder to the U.S. Government is provided as “commercial computer software” and any related documentation is provided as “commercial computer software documentation,” or if applicable as to software or documentation as a “commercial item or process,” and all such software and documentation are provided only with the commercial license rights and restrictions contained in the other Sections of this Agreement, which are those customarily provided to the public. Refer to 48 CFR 12.211, 48 CFR 12.212, 48 CFR 227.7102, 48 CFR 227.7102-1, 48 CFR 227.7202-1, and the similar acquisition regulations of other U.S. Government organizations, as applicable.
6.7. Trademarks. EASE, APPERIAN, MOBILITY TRANSFORMED and EPICENTER are registered trademarks of Apperian. APPLE is a registered trademark and IOS is a trademark of Apple Inc. No license is granted hereby to either Apperian or Customer in any trademark owned or licensed by the other, except as provided in Section 3.3.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information. Without limitation, Customer’s Confidential Information shall include Customer Data and all intellectual property owned by Customer pursuant to Section 6. Without limitation, Apperian’s Confidential Information shall include all EASE Components, all intellectual property owned by Apperian pursuant to Section 6, and this Agreement and all Order Forms. Confidential Information (other than that identified in the preceding two sentences) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections for the Confidential Information of the Disclosing Party that are no less stringent than those herein, and the Receiving Party shall ensure that they comply with such confidentiality agreements. Under clause (iii) of the preceding sentence, Customer is required to have Customer EASE Team members sign confidentiality agreements but not general End Users. No confidentiality agreement need refer specifically to the Confidential Information protected by this Agreement, as long as such information is within the scope of protection of the agreement. At its option, Apperian may, through EASE Services, require End Users to agree to a brief standard agreement.
7.3. Protection of Customer Data. Without limiting the above, Apperian shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Apperian shall not (a) modify Customer Data, (b) disclose Customer Data except as provided in Section 7.4 (Limited Disclosure) or as expressly permitted in writing by Customer, or (c) access or use Customer Data, except to provide the EASE Services, or to prevent or address service or technical problems, or at Customer’s request, or as otherwise provided herein.
7.4. Limited Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if the disclosure is required as a matter of law or by order of a court, governmental agency, or arbitral tribunal of competent jurisdiction or it is needed in connection with the prosecution or defense of a claim, provided (a) the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure (to the extent legally permitted) and (b) that Receiving Party takes reasonable and lawful actions requested by the Disclosing Party and cooperates with the Disclosing Party to avoid and/or minimize the extent of such disclosure. In addition, if the Receiving Party assigns or transfers this Agreement in a transaction that is permitted under Section 13.6, the Receiving Party may also disclose Confidential Information of the Disclosing Party to the acquiring entity.
8.1. Apperian Warranties. For EASE Enterprise, Apperian warrants to Customer that (i) the EASE Services shall perform substantially in accordance with the Documentation, as updated from time to time by Apperian, and (ii) the functionality of the Services will not be materially decreased during a Term Period. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and, if Customer terminates under Section 11.3 and Apperian does not cure in the period prescribed therein, Section 11.4 (Refund or Payment upon Termination).
8.2. Mutual Warranties. Each party represents and warrants to the other party that it has the legal power to enter into this Agreement.
8.3. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS ORWARRANTIES OF ANY KIND WHATSOEVER, WHETHER WRITTEN OR ORAL, EXPRESSOR IMPLIED OR STATUTORY OR OTHER, INCLUDING WITHOUT LIMITATION WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY OF PATENTS, OR TITLE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, OR BY OPERATION OF LAW, OR FROM ADVERTISING, BROCHURES, PROMOTIONAL MATERIALS, PROPOSALS, DOCUMENTATION, PACKAGING, OR OTHER DESCRIPTIVE LITERATURE OR COMMUNICATIONS. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, EASE STANDARD IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY WHATSOEVER. THIS DISCLAIMER CONSITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. MUTUAL INDEMNIFICATION.
9.1. Indemnification by Apperian. Apperian shall defend Customer against any Claim made or brought against Customer by a third party alleging that the use of the EASE Services as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party, if the infringement or misappropriation occurs during the Enterprise Term, and shall indemnify Customer for any damages finally awarded against Customer in connection with any such Claim, except to the extent Customer promises to defend and indemnify Apperian under Section 9.2.
9.2. Indemnification by Customer. Customer shall defend Apperian against any Claim made or brought against Apperian by a third party (a) alleging that any Application or Catalog as created or customized by Customer or any Customer Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law, if the infringement, misappropriation, or violation occurs during the Enterprise Term, or (b) arising out of any breach of this Agreement by Customer during the Enterprise Term, and shall indemnify Apperian for any damages finally awarded against Apperian in connection with any such Claim.
9.3. Conditions to Indemnification. Each promise of indemnification and defense provided in this Agreement is conditioned upon the indemnified party (a) promptly giving written notice to the indemnifying party of the Claim; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle any Claim without the consent of the indemnified party, which shall not unreasonably be withheld, delayed, or conditioned); and (c) providing to the indemnifying party all reasonable assistance, at the indemnifying party’s expense. In addition to the defense promised by the indemnifying party, the indemnified party may, at its own expense, also provide its own counsel in defense of a Claim.
9.4. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim covered in this Section 9.
10. LIMITATION OF LIABILITY.
10.1. Limitation of Amount. IN NO EVENT SHALL EITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE ACTUAL PAYMENTS RECEIVED BY APPERIAN HEREUNDER.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF OPPORTUNITIES, LOSS OF DATA, OR LOSS OF USE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. Exceptions. The limitations in Section 10.1 and 10.2 shall not apply to (a) any access, use, or disclosure of any software, documentation, content, Customer Data, or other Confidential Information beyond that expressly permitted by this Agreement or to any other infringement of any intellectual property rights of either party (or its providers), including without limitation any intellectual property rights acknowledged or conveyed in Section 6, or (b) any indemnification or defense expressly promised in this Agreement. To the extent (if any) that any disclaimer or limitation of liability or remedy in this Agreement is not permitted by applicable law, it shall not apply, but the liable party shall have the right to make any election as to required remedy.
10.4. Time Limit. No action or proceeding arising out of or related to this Agreement, whether by litigation, arbitration, or otherwise, may be initiated by either party more than one year after the cause of action accrues. Excepted are actions for nonpayment of fees or for infringement of any intellectual property rights or for breach of confidentiality.
11. TERM AND TERMINATION.
11.1. Term. As to Term, see Section 2.2.
11.2. Effect of Termination on License. Any termination or expiration of this Agreement shall also terminate the license of EASE Services to Customer hereunder, including without limitation the license of Downloadable Software and Downloadable Documentation.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors which is not dismissed or resolved within 120 days.
11.4. Refund or Payment upon Termination. Upon any termination of this Agreement for cause by Customer, Apperian shall refund to Customer any prepaid Subscription Fees covering the remainder of the Term Period after the effective date of termination. Upon any termination of this Agreement for cause by Apperian, Customer shall pay any unpaid Subscription Fees covering the remainder of the term after the effective date of termination and any other unpaid fees. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Apperian for the period prior to the effective date of termination.
11.5. Customer Data. Customer may at any time prior to Termination download a file of their own Customer Data, including reports and logs, in comma separated value (.csv) format Apperian shall have no obligation to maintain or provide any Customer Data.
11.6. Disposition of Other Confidential Data. Except as provided in Section 11.5 and this Section, each party shall, promptly upon any expiration or termination of this Agreement and unless legally prohibited, return, erase, or destroy all Confidential Information of the other party in its custody or control, including all copies thereof, and have an officer certify the same to other party. This requirement shall not apply to Downloadable Software that is a part of Applications or Catalogs, since they will cease to function upon termination of the EASE Services, but Section 7 (Confidentiality) shall still apply to such Downloadable Software.
11.7. Survival. Upon any expiration or termination of this Agreement, any provision that by its nature would be understood to survive expiration or termination shall survive, including without limitation, all indemnifications and limitations of liability, and, to the extent applicable after expiration or termination, Sections 1.3 (Notice to EASE Standard Customers), 5 (Fees & Payment), 6 (Intellectual Property Rights), 7 (Confidentiality), 8.2 (Mutual Warranties) through 14 (Definitions). Without limitation, any claim for breach or damages arising prior to or as a result of the expiration or termination shall survive.
12. NOTICES, GOVERNING LAW, VENUE, AND INJUNCTION.
12.1. Notices. Any notice, election, request, consent, approval, or waiver required or permitted by the terms of this Agreement shall be sufficient if written in English and delivered personally, or sent by telephonic facsimile machine with delivery confirmation required, or sent by commercial delivery service with fees paid by sender and with delivery confirmation required, or by certified or registered mail with postage fully prepaid and with return receipt requested or delivery confirmation required, or by e-mail with delivery receipt required (but e-mail shall not be sufficient for notices of termination or of an indemnifiable claim), and in each case if delivered or addressed as follows:
If to Apperian, then to: Chief Executive Officer Apperian, Inc. 321 Summer Street, Boston, MA 02210 Fax: (617) 507-6378
If to Customer, then to the Customer’s Chief Executive Officer or any person on the Customer EASE Team or to Customer’s billing contact, either at the last address or fax in Apperian’s records for such officer or person or for the Customer.
Either party may change the address or facsimile phone number to which notices, elections, requests, consents, approvals, and waivers may be sent to it by giving written notice to the other party in the manner provided in this Section.
12.2. Governing Law. All matters arising out of or related to this Agreement, including its validity, interpretation, and effect, and all contract and other claims, shall be governed by the substantive law of the Commonwealth of Massachusetts, USA, substantive US Federal law (including applicable treaties but excluding the United Nations Convention on Contracts for the International Sale of Goods), and applicable intellectual property law, in each case without regard to conflicts of law principles (except as between those specific bodies of law).
12.3. Venue. All suits arising out of or in connection this Agreement shall be brought solely in the Commonwealth of Massachusetts. The parties hereby submit to the jurisdiction of any United States federal court sitting in Boston or, if such court does not accept jurisdiction, a Massachusetts state court sitting in Boston. Excepted are actions to enforce a judgment or an arbitral award or for injunctive relief, which may be filed in any court of competent jurisdiction.
12.4. Injunction. If either party breaches, or attempts or threatens to breach, the confidentiality, ownership, license restrictions or limitations provisions of this Agreement, the other party to this Agreement shall be entitled to an injunction against the breaching party. Nothing herein contained precludes the other party from pursuing any other remedies available hereunder or at law or equity for such breach, including the recovery of damages.
13.1. Export Control. Customer (and its Customer EASE Team and End Users) may not download or otherwise export or re-export any EASE Component (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U. S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders (or successor lists). Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. Customer shall comply with all relevant export laws and regulations of the United States and any local laws in other jurisdiction that may impact its right to import, export, or use the EASE Services.
13.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4. Waiver. No term or condition of this Agreement to be performed by a party shall be deemed waived, except by written consent of the other party. No election, claim, or other right of a party shall be deemed waived, except by written consent of that party. Any waiver of any breach of any covenant, term or condition of this Agreement shall not operate or be construed as a waiver of any other covenant, term or condition hereof, or of a prior or subsequent breach of the same covenant, term or condition, nor operate to extinguish the covenant, term or condition of the breach whereof has been waived.
13.5. Severability. If any provision in this Agreement shall be held by a court or arbitral tribunal of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and the offending provision shall remain in effect as far as possible in accordance with the intention of the parties. However, if the Agreement, as so reformed, substantially alters the basis of the bargain between the parties, it shall be deemed terminated.
13.6. Assignment. Neither party may assign or transfer its license or rights or delegate its obligations under this Agreement, in whole or in part, directly or indirectly, including by contract, merger, consolidation, operation of law, Change of Control, or any other means, unless the other party gives its prior written consent, which may not be unreasonably withheld, delayed, or conditioned. However, either party may assign or transfer this Agreement in whole, without the consent of the other party, to any entity that acquires all or substantially all of its stock or other equity interests or all or substantially all of its business and assets, provided that (a) it has given notice to the other party of the assignment or transfer, (b) the acquiring entity does not directly and substantially compete with the other party to this Agreement or any Affiliate thereof, and (c) the acquiring entity agrees in writing to be bound by this Agreement. In addition, Apperian may assign its right to payment of any amount that comes due hereunder and may engage subcontractors to assist it in the performance of this Agreement (subject to Section 7 on confidentiality), without Customer’s consent. A party’s sole remedy for any purported assignment or transfer by the other party in breach of this Section shall be to elect to terminate this Agreement upon written notice to the breaching party within 30 days after the later of the date on which the assignment or transfer takes place or the terminating party receives notice from the breaching party of the assignment or transfer or otherwise becomes aware of the assignment of transfer. No assignment or transfer by either party will release the assignor or transferor from any liability hereunder without the other party’s written agreement. “Change of Control” of an entity means a change of more than 50% in the beneficial ownership (as defined in Rule 13d-3 under the U.S. Securities Exchange Act of 1934) of the entity’s voting stock (or other voting equity interests) or, within any 12-month period, in the composition of its board of directors (or other governing body). Subject to this Section, the rights and liabilities of the parties shall bind and inure to the benefit of their respective permitted assigns, successors, and legal representatives.
13.7. Entire Agreement. This Agreement, including any applicable Order Form(s), constitutes the entire, final, and complete agreement between the parties hereto relevant to the subject matter hereof. It supersedes and replaces all prior or contemporaneous agreements, promises, proposals, offers, understandings, representations, warranties, conditions, descriptions, promotional materials, and other communications whatsoever, whether written or oral, express or implied, relevant to the subject matter hereof, whether between the parties or their representatives or otherwise. Without limitation, the terms of this Agreement shall supersede the terms of any Customer purchase order, order acknowledgment, or other ordering document. In the event of any conflict between this Agreement, on the one hand, and any Documentation or any End User agreement, on the other hand, this Agreement shall control.
13.8. Changes to Agreement. Except as provided in this Section, there shall be no modification to this Agreement unless it is in a writing signed by an officer of Apperian and a duly authorized representative of each party. From time to time, Apperian may modify this Agreement if (a) Apperian makes substantially the same changes to the terms of service on which it offers EASE Services to the public generally and (b) Apperian gives Customer at least 45 days prior written notice of the changes. If Customer does not accept any of the changes in a given notice, then within 45 days of the date of Apperian’s notice, Customer shall give notice to Apperian that Customer rejects all the changes in Apperian’s notice. Otherwise, all changes in Apperian’s notice shall become effective on the date specified in the notice or, if no date is specified, then immediately after the 45-day period.
13.9. Publicity. Apperian may issue a press release announcing this Agreement, subject to prior written approval of the release by Customer, which approval shall not be unreasonably withheld, conditioned, or delayed. During the Term, Apperian may identify Customer in its marketing materials and on its websites as a customer. Apperian may not otherwise publicize this Agreement or its relationship with Customer.
13.10. Official Language. The official language of this Agreement is English. All reports and written communications between the parties shall be in English.
As used in this Agreement (including its Exhibits, unless otherwise defined therein), each of the following capitalized terms and each of those defined in the Agreement (including its Exhibits) shall have its indicated meaning, unless the context otherwise requires:
14.1. “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party. The direct or indirect ownership of 50% or more of the outstanding voting stock or other voting ownership interests in an entity, the right to receive 50% or more of the profits or earnings of an entity, or the right to control policy decisions of an entity will be deemed to constitute control.
14.2. “Apperian Competitor” any company that directly and substantially competes with Apperian or any Affiliate of Apperian.
14.3. “Apple” means Apple Inc., a California corporation.
14.4. “Application” means any end-use software application accessed and used (or intended for access and use) through EASE Services by an End User using a Device. An Application that is being so accessed and used resides on the EASE Server.
14.5. “Catalog” means an Application that is downloaded through EASE Services to the Devices and that acts as a catalog through which an End User may initiate the operation on his/her Mobile Device of an Application residing on the EASE Server. The “Standard Catalog” is the Catalog that Apperian generally makes available for use with EASE Standard. A “Custom Catalog” is any other Catalog, including without limitation any customized version of the Standard Catalog.
14.6. “Claim” means any claim, demand, suit, or proceeding.
14.7. “Customer Data” means all electronic data and other content input by Customer (including the Customer EASE Team) or its End Users into the EASE Services or Applications, including without limitation End User registration information. It also includes each Device’s unique identification that the EASE Services detect. It does not include any EASE Component.
14.8. “Customer EASE Team” shall have the meaning given that term in Section 2.7.
14.9. “Device” means a device that is capable of being used with the EASE Services. An “iOS Device” is a Device that uses Apple’s iOS operating system.
14.10. “Device Supplier” is any company that supplies Devices. For example, Apple, Inc., a California corporation, is a Device Supplier.
14.11. “Documentation” means the User Guide, readme, and other documentation (and updates thereto) that Apperian makes available or delivers to Customer in connection with the EASE Services, whether or not in downloadable form or as part of the EASE SDK. In general, Documentation is intended for use by the EASE Customer Team, not End Users. “Downloadable Documentation” means any Documentation that Apperian makes available or delivers to Customer via download through EASE Services, compact disc, or similar means.
14.12. “Downloadable Software” means any software (and updates thereto) that Apperian makes available or delivers to Customer via download through EASE Services, compact disc, or similar means, in connection with the EASE Services, including without limitation Frameworks, sample Applications, and one or more Catalogs. It does not include any Documentation. Downloadable Software is intended for use by the EASE Customer Team, not End Users, except for Catalogs downloaded to Devices and Applications accessed on the EASE Server through Devices (as so accessed).
14.13. “EASE” means the enterprise app services environment by which Apperian makes available EASE Services, the EASE SDK, and other Downloadable Software and Downloadable Documentation to Customer. It includes the web portal(s) by which the EASE Services are made available (at http://www.apperian.com and/or other websites designated by Apperian from time to time.
14.14. “EASE Component” means any software, documentation, content, or other work that is provided by or for Apperian as a part of EASE or the EASE Services. It includes without limitation, Downloadable Software, Documentation, and the EASE SDK, and the parts thereof.
14.15. “EASE SDK” means an electronic library (and updates thereto) that Apperian makes available or delivers to Customer via download through EASE Services, compact disc, or similar means and that includes without limitation Frameworks, one or more sample Applications, the User Guide, and certain other Documentation. The EASE SDK is intended for use by the EASE Customer Team, not End Users.
14.16. “EASE Server” means the server hosting the EASE Services. It may be provided by Apperian itself or its hosting provider.
14.17. “EASE Services” means any of the services provided by Apperian to Customer and its End Users through EASE. “EASE Standard” is the standard version of EASE Services, and “EASE Enterprise” is the enterprise version of EASE Services. See Sections 2 (License and Subscription) and 3 (Availability, Support, & Other Services) and other provisions of this Agreement for additional details.
14.18. “End User” means an individual who accesses and uses Applications through a Device and who is registered for such access and use pursuant to this Agreement. See Section 2.8 for details about End Users.
14.19. “Framework” means any application programming interfaces or other software that Apperian makes available to Customer as a part of EASE Services for incorporation into an Application.
14.20. “Media File” means any image, document, or video files that are accessed and used (or intended for access and use) through EASE Services by an End User using a Device.
14.21. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
14.22. “Order Form” means a document executed by Customer and Apperian whereby Customer subscribes to EASE Enterprise.
14.24. “Term” means the Standard Term if Customer and Apperian do not execute an Order Form, and it means the Enterprise Term, including any extensions or renewals thereof, if they do execute an Order From. For the definition of “Standard Term”, see Section 2.2.1. For the definition of “Enterprise Term” and “Term Period”, see Section 2.2.2.
14.25. “User” shall have the meaning given that term in Section 2.8.
14.25. “User Guide” means the Downloadable Documentation that is a guide for Customer EASE Team members in using Downloadable Software and EASE Services, and updates to such guide.
End of EASE Terms of Service and License