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PLEASE READ THESE MASTER TERMS OF SERVICE CAREFULLY
Our Partner Terms of Service is a contract that governs our customers' use of the Apkudo services. It consists of the following documents:
Your Order Form is the Apkudo-approved form containing all of the details about your relationship with Apkudo, including your services and fees. Your use the Apkudo information, technology and services are subject to the Partner Terms of Service.
We’ve aimed to keep these documents as readable as possible, but in some cases for legal reasons, some of the language is necessarily “legalese”. By providing Consulting or Software Services, you are agreeing to these terms.
Last Modified: 31 March 2021
"Affiliate" means any person or entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Apkudo", "we", "us" or “our” means and refers to the applicable Apkudo contracting entity.
"Agreement" means the Software-as-a-Service Agreement between the applicable Apkudo and Customer entities, consisting of these Master Terms and all related documents referred or linked to in this document.
"Apkudo Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting or Software Services, including Enrichment Data (as defined in the Product-Specific Terms).
“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state, or national) that are applicable to or enforceable against a Party or its personnel in relation to their activities under or pursuant to the Agreement.
"Billing Period" means the period for which you agree to invoice Apkudo under and as indicated on an Order Form.
“Claim” means a third-party claim, demand, action, or legal proceeding asserted or initiated against a Party or other indemnitee.
“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 a reasonable person would understand to be confidential, proprietary, or commercially sensitive. Confidential Information shall include all information concerning: Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does 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. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Consulting or Software Services" means the professional services provided by you to us.
"Partner Data" means all information that you submit or collect via the Consulting Service. Partner Data does not include Apkudo Content.
"Partner Materials" means all materials that you provide or post, upload, input or submit for display through the Consulting Service, including Partner Data.
“Disclosing Party” has the meaning given in the definition of “Confidential Information.”
“DPA” means the Apkudo Data Processing Addendum at https://apkudo.com/legal/dpa.htm
“Intellectual Property Rights” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by Applicable Laws.
“Jurisdiction-Specific Terms” means the additional terms that apply to your subscription, depending on your location. These terms form part of the Agreement and are available at http://legal.apkudo.com/jurisdiction-specific-terms.
“Losses” means, in connection with a Claim that is subject to defense and indemnification by a Party under the Agreement, all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation, and settlement, and any resulting liabilities, damages, settlements, judgments, and awards, including associated taxes, interest, and penalties.
"Order" or "Order Form" means the Apkudo-approved form or online subscription process by which you agree to provide Consulting or Software Services.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law (as defined in the DPA).
“Product and Services Catalog” means Apkudo’s Product and Services Catalog available at http://legal.apkudo.com/apkudo-product-and-services-catalog as updated by us from time-to-time.
“Product-Specific Terms” means the additional product-related terms that apply to your use of Apkudo products, our Consulting or Software Services, and Third-party Services. These terms form part of the Agreement and can be found at http://legal.apkudocom/product-specific-terms.
“Receiving Party” has the meaning given in the definition of “Confidential Information.”
“SaaS” means Apkudo’s proprietary web-based software-as-a-service platform and related functions and features made available for Customer’s use under the Agreement during a Subscription Term, as identified on the applicable Order Form.
"Sensitive Data" means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under the European Union’s General Data Protection Regulation (EU) 2016/679 (GDPR) or any other Applicable Law relating to privacy and data protection.
“Services” means, collectively, the Consulting Service.
“Third-Party Product” means any product that is not part of the Subscription Service or branded by Apkudo as an Apkudo product.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service.
"Agents" means your employees, representatives, consultants, contractors, or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service. User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable SaaS Modules.
"You", "your" or “Customer” means and refers to the person or entity providing the Consulting Service as identified in the applicable Order Form.
2.1 Once you submit a signed Order Form, we will review your Order Form and let you know whether you have been accepted or not. Before we accept an Order Form, we may reach out to review your application with you. We may require that you complete certain requirements (besides those listed), questionnaires, assessments, or certification(s) before we accept your application. If we do not let you know that you are accepted within sixty (60) days from your application, your application is considered to be rejected.
2.2 If your application is accepted, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect until terminated, per the terms set forth below.
3.1 We may ask you to assist us in determining your compliance with this Agreement. You will use reasonable efforts to help us in this effort, including, but not limited to, allowing us to review your work logs, your systems, or appointing an independent party to conduct an audit.
4.1 During the term of this Agreement, you agree that you shall (a) make your services commercially available and (b) comply with all applicable laws and regulations.
4.2 Should you require access to Apkudo products and services in order to provide the Consulting or Software Services, you will use the Apkudo Products for your internal business purposes and will not: (i) willfully tamper with the security of the Apkudo Products or tamper with our customer accounts, (ii) access data on the Apkudo Products not intended for you, (iii) log into a server or account on the Apkudo Products that you are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any Apkudo Products or to breach the security or authentication measures without proper authorization, (v) willfully render any part of the Apkudo Products unusable, (vi) lease, distribute, license, sell or otherwise commercially exploit the Apkudo Products or make the Apkudo Products available to a third party other than as contemplated in this Agreement, (vii) use the Apkudo Products for the benefit of a third party, or (viii) provide to third parties any evaluation version of the Apkudo Products without our prior written consent.
5.1 Partner’s Proprietary Rights. You own and retain all rights to the Partner Materials and Partner Data. The Agreement does not grant us any ownership rights to Partner Materials or Partner Data. You grant permission to us and our licensors to use the Partner Materials and Partner Data only as necessary to benefit from the Consulting or Software Services from you and as otherwise permitted by the Agreement. If you are providing Consulting or Software Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on Apkudo’s Use of Partner Data. We will use and allow others to use Partner Data only in order to provide services as permitted by Applicable Law and the Agreement. We will not otherwise use, or allow anyone else to use, Partner Data to contact any individual or company except as you direct or otherwise permit.
5.3 Data Practices and Machine Learning. We may monitor Consulting or Software Services provided by any and all of our Partners and use the information gathered in an aggregate and anonymized manner. We may use Partner Data in an anonymized manner for machine learning. For more information on these practices please see the ‘Data Practices and Machine Learning’ section of our Product-Specific Terms.
5.4 Protection of Personal Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Partner Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Service. We will maintain commercially appropriate administrative, physical, and technical safeguards and security measures to protect Personal Data as described in the DPA.
5.5 Partner Data Transfers. We and our Affiliates may transfer Partner Data (including Personal Data) to the United States. To the extent we process Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA) our Standard Contractual Clauses will apply as set out in our DPA. For more information see our Privacy Policy.
5.6 Retention, Deletion, and Retrieval of Partner Data. For information on our procedures regarding the retention and deletion of Partner Data, please see the ‘Apkudo Obligations’ section of our DPA.
6.1 The Agreement is an agreement for you to provide Consulting or Software Services to Apkudo. It does not transfer any intellectual property rights to you or grant you a license to any software. Apkudo’s Subscription Service are protected by intellectual property laws and treaties. The intellectual property they embody or practice belong to and are the property of us or our licensors, and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Apkudo Content, the Subscription Service, in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at https://apkudo.com/legal/trademarks.html(which we may update at any time without notice to you) and you may not use any of these without our prior written permission.
6.2 Apkudo shall own all copyright and patent rights for all materials developed by you in the course of providing the Consulting or Software Services;
6.3 All works prepared for the Company by you in the course of providing the Consulting or Software Services are deemed works made for hire and shall become the sole intellectual property of the Company immediately upon their creation;
6.3.a If any such work is deemed for any reason not to be a work made for hire, you agree to assign and hereby assign all of your right, title and interest in the copyright in such work, and all extensions and renewals thereof, to the Company without any further consideration and agrees to provide all assistance reasonably requested by the Company in the establishment, preservation and enforcement of its copyright in such work, such assistance to be provided at the Company's expense but without any additional compensation.
6.3.b You agree to waive all moral rights relating to the work developed or produced, including without limitation, any and all rights of identification of authorship and any and all rights of approval, restriction or limitation on use or subsequent modifications.
6.4 We encourage all Partners to comment on the Subscription Service, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions and any other feedback you or your Users provide will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service, without payment or attribution to you.
7.1 If we and you are parties to a separate non-disclosure agreement, it will be deemed to apply to our respective activities under the Agreement and to form part of the Agreement. If not, the following terms will apply.
7.2 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using at least 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) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except that we may disclose your Confidential Information to those third party service providers we use to provide some or all elements of the Subscription Service or Consulting or Software Services) and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors, and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein or are otherwise bound by an obligation of confidentiality to the Receiving Party.
7.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency or authority except under a valid order from a court having jurisdiction requiring the specific disclosure.
7.4 The foregoing obligations of confidentiality will not apply to any particular Confidential Information of the Disclosing Party that the Receiving Party can demonstrate by written records: (a) was publicly disclosed prior to disclosure to the Receiving Party, or, subsequent to disclosure to the Receiving Party, is publicly disclosed through no fault of the Receiving Party; (b) was known to or otherwise independently developed by the Receiving Party prior to the date of its disclosure by or on behalf of the Disclosing Party; or (c) is subsequently disclosed to the Receiving Party in good faith by a third party who has a right to make such disclosure to the Receiving Party without any obligation to restrict its further use or disclosure.
a. Term. This Agreement will apply for as long as you provide the Consulting or Software Services detailed in your Order Form, until terminated.
b. Termination Without Cause. Both of us may terminate this Agreement upon thirty (30) days written notice to the other party.
c. Effects of Expiration/Termination. Upon termination or expiration of this Agreement, you will immediately discontinue all use of our trademark and will remove all Apkudo logos and references from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your subscription agreement to be terminated, if you have one. You will continue to provide commercially reasonable support to Apkudo for a period of one (1) year after the expiration or termination of this Agreement.
9.1 You represent and warrant that: (i) you have full power and authority to enter into this Agreement and that it is binding upon you and enforceable in accordance with its terms, (ii) your providing the Consulting or Software Services will not conflict with any of your existing agreements or arrangements, (iii) you own or have sufficient rights to use and to grant to us our right to use your Company Marks (if any), and (iv) your Products (if any) do not infringe or misappropriate the intellectual property rights of a third party or violate applicable law.
10.1 You grant us the right to add your name to our Partner list and website. You can opt-out of this use by sending an email to marketing@apkudo.com.
11.1 You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of: (a) your providing the Consulting or Software Services , (b) use of your Company’s Products (if any), (c) your noncompliance with or breach of this Agreement, (d) our use of your Company’s Marks (if any), (e) your participation in Optional Programs provided to you by Apkudo, or (f) any claim that your Company Products (if any) infringe or misappropriate the intellectual property rights of a third party or violate applicable law.
11.2 We will: notify you in writing within thirty (30) days of our becoming aware of any such claim, give you sole control of the defense or settlement of such a claim, and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us, (ii) requires us to make an admission, or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE APKUDO PRODUCTS, APKUDO CONTENT, OR ANY OPTIONAL PARTICIPANT PROGRAMS FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE APKUDO PRODUCTS AND OPTIONAL PARTICIPANT PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE APKUDO PRODUCTS AND THE OPTIONAL PARTICIPANT PROGRAMS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO FIVE THOUSAND DOLLARS.
a. Amendment; No Waiver. We may update and change any part or all of this Agreement. If we update or change this Agreement, the updated Agreement will be posted at http://apkudo.com/legal. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after the modification. If you give us this notice, this Agreement will terminate ten (10) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Applicable Law. This Agreement shall be governed by the laws of the state of Maryland, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Baltimore, Maryland.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
This Agreement does not create an exclusive agreement between you and us. Both of us will have the right to recommend similar products and services of third parties and to work with other parties.
You agree that you are neither an employee nor agent of Apkudo.
a. You are an independent contractor;
b. You determine the method, manner and means by which the Services will be performed;
c. You are not required to perform the services during a fixed hourly or daily time;
d. You control the order or sequence in which the work is to be performed;
e. Your services are not exclusive Apkudo, nor require a full-time commitment, and it is expected that you have other clients and you offer services to the general public;
f. Apkudo is not providing you with direct or indirect benefits.
As an independent contractor, you agree to operate and be bound by Company’s Employee Policies and Procedures.
While Services are being provided, and for a period of 18 months following the termination of this Agreement, you will not solicit or offer employment to Company personnel.
No commissions or payments other than your approved billable time will be due or payable under this Agreement. Each party is responsible for its own costs and expenses related to this Agreement and their respective products and services.
e. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Apkudo Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Apkudo Products to prohibited countries or individuals or permit use of the Apkudo Products by prohibited countries or individuals.
f. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party) and will be deemed delivered as of the date of actual receipt.
To Apkudo, Inc.: Apkudo, Inc., 3500 BOSTON STREET SUITE #330, MS-48 BALTIMORE MD 21224 Attention: General Counsel
To you: your address as provided in our account information for you. We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
h. This Agreement is the entire agreement between us for Consulting or Software Services and supersedes all other proposals and agreements (including all prior versions of the agreement applicable to provide Consulting or Software Services, if any), whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your Order Form, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Apkudo Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Apkudo Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
l. Program Policies. We may change the Program Policies from time to time by updating our website. Your providing of Consulting or Software Services is subject to the Program Policies, which are incorporated herein by reference.
m. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Apkudo Products, our trademarks, or any other property or right of ours.
n. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Apkudo’s Proprietary Rights’, ‘Confidentiality’, ‘Effects of Expiration/Termination.’
