Apkudo Customer Terms of Service
Last Modified: 31 March 2021
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PLEASE READ THESE MASTER TERMS OF SERVICE CAREFULLY
Our Customer Terms of Service is a contract that governs our customers' use of the Apkudo services. It consists of the following documents:
- Master Terms: These contain the core legal and commercial terms that apply to your subscription.
- Product Specific Terms: These include any additional terms that apply to your use of each of our product offerings, our consulting and other services and third party services.
- Product Privacy Terms: This policy addresses how we manage your and your user's private data with each of our product offerings.
- Jurisdiction Specific Terms: Depending on your location, some of these jurisdiction specific terms will apply to you. They’ll also explain which Apkudo entity you’re contracting with and which laws will govern our relationship.
- Data Processing Agreement (DPA): This explains how we process your data and includes the EU Standard Contractual Clauses.
Your Order Form is the Apkudo-approved form containing all of the details about your purchase, including your subscription term, products purchased and your fees. Your use the Apkudo Products and Services detailed in your Order Form are subject to the Customer 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 using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We update these terms from time to time. If you have an active Apkudo subscription, we will let you know when we update the terms via in-app notification or by email (if you subscribe to receive email updates).
Last Modified: 31 March 2021
- 1. Definitions
- 2. Use of Services
- 3. Fees
- 4. Term & Termination
- 5. Customer Data
- 6. Intellectual Property
- 7. Confidentiality
- 8. Publicity
- 9. Indemnification
- 10. Representations, Warranties, and Disclaimers
- 11. Limitations of Liability
- 12. Support Services
- 13. General
“Add-Ons” means additional Apkudo product enhancements (including partners, hubs, modules, hosting isolation, and other add-ons) that are made available for purchase and are listed in the ‘Add-Ons‘ section of our Products and Services Catalog.
"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 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 prepay fees under an Order Form. This may be the same length as the Subscription Term specified in your Order Form or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“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 Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Apkudo Content.
"Customer Materials" means all materials that you provide or post, upload, input or submit for display through the Subscription Service, including Customer Data.
"Data Storage" means the recording (storing) of information (data) in a storage medium.
“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.html
“Free Service” means the components or aspects of the Subscription Service or other products or features that we make available to you on an unpaid trial or free basis.
“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 subscribe to the Subscription Service and purchase Consulting 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 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 Subscription Service and our Consulting Services.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://apkudo.com or another designated URL, and any ancillary products and services that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
“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.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Apkudo accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
"Users" 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 using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
2.0 USE OF SERVICES
2.1 Access. During the Subscription Term, we will provide your Users access to use the Subscription Service as described in the Agreement and the applicable Order. We may also provide your Users access to use our Free Services at any time by activating them in your Apkudo account. We might provide some or all elements of the Subscription Service through third-party service providers. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under an Order; provided; however, that all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and that you will at all times remain liable for your Affiliates' compliance with the Agreement.
2.2 Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Apkudo account (if this option is made available by us.). The Agreement will apply to all additional Order(s) and all additional features that you activate from within your Apkudo account.
2.3 Service Uptime Commitment. For details of Apkudo’s Service Level Commitment, please see the Product-Specific Terms.
2.4 Limits. The limits that apply to you and your use of the Subscription Service will be specified in your Order Form, these Master Terms, or in our Product and Services Catalog. For our Free Subscriptions, these limits may also be designated within the product itself. For further information on the limits that apply to your subscription, please refer to the Product-Specific Terms.
2.5 Minimum Age. You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.
2.6 Downgrades. Depending on your Apkudo product, you may be entitled to downgrade your subscription. For further information on the downgrade terms that apply to your subscription, please refer to the Product-Specific Terms.
2.7 Modifications. We may modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience or respond to market conditions or comply with Applicable Laws. For further information on our modification rights that apply to your subscription, please refer to the Product-Specific Terms.
2.8 Customer Support. For information on the customer support terms that apply to your subscription, please refer to the Product-Specific Terms.
2.9 Terms of Service. You will comply and cause your Users to comply with our Terms of Service at http://legal.apkudo.com/terms-of-service ("TOS").
2.10 Prohibited and Unauthorized Use. You will not use or permit your Users or anyone else to access or use the Subscription Service in any way that violates the terms of the TOS or for any purpose or in any manner that is unlawful or prohibited by the Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section will limit the usage restrictions specific to Sensitive Data under the Agreement.
In the event you become aware of any unauthorized use of your user’s identification or passwords or their account, you will notify us right away of any unauthorized use of your Users’ identifications or passwords or your account by email at email@example.com..
2.11 No Storage of Sensitive Data. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICE HAS NOT BEEN DESIGNED TO STORE SENSITIVE DATA AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO STORE SENSITIVE DATA. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO STORE SENSITIVE DATA.
2.12 Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, one or more content creators, an operations sponsor, an executive sponsor, and a technical resource (or equivalent). Responsibilities that may be required include planning of programs and other initiatives; acting as internal liaison between operations and management; providing top-level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other internal systems.
2.13 Free Service. If you subscribe to a Free Service, the applicable Order Form will indicate the Subscription Service products or features to which the Free Service applies and the usage parameters within which you will not be charged a Subscription Fee for such use. Since your usage of the Free Service is at no charge, the applicable Subscription Service products and features are made available for your use on an “As-Is” basis without representations, warranties, or other promises of any kind. You are not authorized to exceed a Free Service’s usage parameters without purchasing a paid subscription.
2.15 Restrictions. You agree not to act outside the scope of the rights that are expressly granted by us in the Agreement and associated Order Forms.
2.16 Suspension of Services. (a) We reserve the right to suspend delivery of the Services if you fail to timely pay any undisputed amounts due under the Agreement, but only after we notify you of the failure and the failure continues for 15 days. Suspension of the Services shall not release you from your payment obligations under the Agreement. You agree that we shall not be liable to you or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the Services resulting from your nonpayment. (b) we reserve the right to suspend delivery of the Services if we reasonably conclude that your or an Authorized User’s use of the Services is causing immediate and ongoing harm to Apkudo or others. In the unusual event that we must suspend delivery of the Services, we will immediately notify you of the suspension and work with you diligently in an attempt to resolve the issue. We shall not be liable to you or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the Services in accordance with Section 2.10. Nothing in this Section 2.16 will limit our termination rights under Section 6.2 below.
2.17 FAR and DFARS. The Subscription Service software and any associated documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to the Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12, and the Defense Federal Acquisition Regulation Supplement, codified in Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202. Any use, modification, reproduction, release, performance, display, or disclosure of the Subscription Service software or its documentation by or for the United States Government is governed solely by the Agreement and is prohibited except to the extent expressly permitted by the Agreement or an Order Form.
3.1 Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless: (i) you exceed your applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Partners or Modules, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. You can see specific information about how your fees may be otherwise adjusted in the applicable Product-Specific Terms. All amounts payable to us under the Agreement shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason except as may be required by Applicable Law.
3.2 Fee Adjustments at Renewal. At renewal, we may increase your fees up to our then current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least sixty (60) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either Party can choose to terminate your subscription at the end of its then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
3.3 Payment by Credit Card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments and consent to the disclosure of your payment information to such third party.
3.4 Payment against Invoice. If you qualify for and are paying by invoice, we will invoice you within thirty (30) days after the end of each subsequent Billing Period and at other times during the Subscription Term when fees are payable. Invoiced amounts are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
3.5 Payment Information. You will keep your contact information, billing information, and payment information up to date. Changes may be made in the Billing Page within your Apkudo account. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as otherwise specifically provided in the Agreement.
3.6 Taxes. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT, and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.
3.7 Expenses. You will reimburse us for our reasonable, out-of-pocket travel and related expenses incurred in performing the Consulting Services. We will notify you prior to incurring such expenses and we will comply with your travel and expense policy if made available to us prior to the required travel.
3.8 Payment Disputes. If you believe that we have billed you incorrectly, you must so notify us no later than 30 days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Apkudo’s customer support department or your Apkudo Account Manager.
3.9 Late Payments. If any payment is not made in full when due, the overdue balance will be subject to a late payment charge of 3%, plus interest at the rate of 1.5% per month (or the maximum legal rate if less), pro-rated daily.
3.10 Subpoena Expenses. If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs of doing so. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents, and participating in depositions or other legal process, as well as other costs incurred in complying with such legal processes.
4.0 TERM AND TERMINATION
4.1 Term and Renewal. Your initial Subscription Term will be specified in your Order and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the initial Subscription Term or one year.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending this notice varies depending on the Apkudo product. For more information on non-renewal notice periods, please see the applicable Product-Specific Terms.
4.3 Early Cancellation. You may choose to cancel your subscription early at your convenience by giving us written notice of cancellation; provided, however, that we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term.
4.4 Termination for Cause. Either Party may terminate the Agreement for cause as to any or all Subscription Services: (i) upon written notice to the other Party if the other Party has committed a material breach of the Agreement and the breach remains uncured thirty (30) days after the breaching Party has received written notice of the breach from the non-breaching Party, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
Either Party may also terminate the Agreement for cause on thirty (30) days’ notice if one Party determines that the other Party is acting, or has acted, in a way that has or may negatively reflect on or affect that Party, its prospects, or its customers. The Agreement may not otherwise be terminated prior to the end of the Subscription Term.
The Agreement may not otherwise be terminated prior to the end of the Subscription Term.
4.5 Other Effects of Termination. Effective immediately upon expiration or termination of the Agreement, (i) all rights granted to you under the Agreement will cease and revert to Apkudo, (ii) you and your Users shall cease all use of the Subscription Service, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights of the other Party that were granted under the Agreement. However, you will have thirty (30) days after any such expiration or termination to download or otherwise obtain an extract of any Customer Content stored by the Subscription Service at the time of expiration or termination. If you require that we export a copy of Customer Content to an external repository for download by you, your designated account representative shall be responsible for identifying the applicable repository, and you shall be responsible for the adequacy of its security. If you require any other disengagement assistance from us in connection with termination, you shall submit your request in the form of a proposed Statement of Work.
4.6 Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration, or which is necessary for the proper interpretation, administration, or enforcement of the Agreement, will survive the expiration or termination of the Agreement (or the applicable Order Form) for any reason.
4.7 Suspension for Prohibited Acts. We may suspend any User’s access to any or all of the Subscription Service upon notice for (i) use of the Subscription Service in a way that violates Applicable Laws or the terms of the Agreement, or (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe the copyright or trademark rights of any person or entity.
4.7.1 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Service ten (10) days (or later) after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a reactivation fee to reinstate the Subscription Service.
4.7.3 Suspension for Present Harm. If your use of the Subscription Service:
(i) is creating a security vulnerability for the Subscription Service or others,
(ii) is consuming excessive bandwidth causing a performance impact to other customers on our platform,
(iii) is in violation of our Terms of Service, or
(iv) is causing harm to us or others,
then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as set out above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.7.4 Suspension and Termination of Free Services. We may suspend, limit, or terminate Free Services for any reason at any time, with or without notice. We may terminate your subscription to Free Services due to your inactivity.
4.8 Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services; provided, however, that this may not be the case if your subscription was terminated for cause.
You will continue to be subject to the Agreement for as long as you have access to an Apkudo account.
Upon termination or expiration of the Agreement, you will stop all use of the Subscription Service and Apkudo Content. If you terminate the Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate the Agreement for cause, you will promptly pay all unpaid fees due or that would otherwise become due through the end of the Subscription Term. Fees are otherwise non-refundable and non-cancellable.
5.0 CUSTOMER MATERIALS AND CUSTOMER DATA
5.2 Limits on Apkudo’s Use of Customer Data. We will use and allow others to use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by Applicable Law and the Agreement. We will not otherwise use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit.
5.3 Data Practices and Machine Learning. We may monitor use of the Subscription Service by all of our customers and use the information gathered in an aggregate and anonymized manner. We may use Customer 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 Customer 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.
5.6 Retention, Deletion, and Retrieval of Customer Data. For information on our procedures regarding the retention and deletion of Customer Data, please see the ‘Apkudo Obligations’ section of our DPA. You can learn more about your right to retrieve Customer Data from your Apkudo account in the ‘Retrieval of Customer Data’ sections as specified in our Product-Specific Terms.
5.0 CUSTOMER MATERIALS AND CUSTOMER DATA
6.0 INTELLECTUAL PROPERTY
6.1 The Agreement is an agreement for access to and use of the Subscription Service and Consulting Services. It does not transfer any intellectual property rights to you or grant you a license to any software. The Subscription Service and Consulting Services 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, or the Consulting Services, 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 http://legal.apkudo.com/trademarks (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 We encourage all customers to comment on the Subscription Service or Consulting Services, 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 or Consulting Services, without payment or attribution to you.
7.0 CONFIDENTIAL INFORMATION
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 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.
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by filling out the form here.
9.1 You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any Claim brought against us (and our respective officers, directors, employees, agents, service providers, and licensors) by a third party not affiliated with us or our Affiliates to the extent that such Claim is based upon or arises out of any of the following by you, your Affiliates, or your respective Users:
(a) unauthorized or illegal use of the Subscription Service;
(b) noncompliance with or breach of the Agreement; or
(c) use of Third-Party Products; or
(d) unauthorized use of the Subscription Service by any other person using your Users’ Access Protocols.
We will: notify you in writing within thirty (30) days of our becoming aware of any such Claim; give you sole control over its defense and settlement; and provide you (at your expense) with any and all information and assistance reasonably requested by you to assist you in handling the defense or settlement of the Claim. Without our prior written consent, you will not accept any settlement of a Claim 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.
9.2 Additional Indemnification Terms. If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then the Apkudo Additional Indemnification Terms available at Appendix 1 to these Master Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.
10.0 REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
10.1 Mutual Representations. Each Party represents to the other (i) that the execution and performance of its obligations under the Agreement will not conflict with or violate any provision of Applicable Law or any other agreement or order by which the representing Party is bound; and (ii) that the Agreement and each Order Form, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
10.2 Apkudo Warranties. We warrant that any Consulting Services performed by us under the Agreement will be performed in a good and workmanlike manner in accordance with prevailing industry standards and that the Subscription Service will perform substantially as described in its documentation. In the event of a breach of this warranty, our sole obligation and your sole remedy will be for us to correct or re-perform the affected Consulting Service or correct the affected Subscription Service without undue delay to remedy the breach, at no charge to you.
10.3 DISCLAIMERS. (a) YOU REPRESENT THAT YOU ARE ENTERING THE AGREEMENT WITHOUT RELYING UPON ANY APKUDO REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APKUDO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
(b) CUSTOMER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST APKUDO, FOR THE SELECTION OF THE SUBSCRIPTION SERVICE TO ACHIEVE CUSTOMER’S INTENDED RESULTS. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SUBSCRIPTION SERVICE, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. APKUDO DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
(c) CUSTOMER ACKNOWLEDGES THAT APKUDO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NEITHER APKUDO NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA OR ANY USER’S DATA, FILES, OR PROGRAMS.
10.4 Additional Warranty Terms. If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then the Apkudo Additional Warranty Terms available at Appendix 1 to these Master Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.
11.0 LIMITATIONS OF LIABILITY
11.1 Except as expressly provided in this Section 11.1, neither Party (nor any Affiliate, licensor, or other supplier of Apkudo) shall have any liability under or in connection with the Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability (including negligence and strict liability), even if the liable Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with the Agreement shall never exceed the injured Party’s actual direct damages, capped at an amount equal to the greater of (i) the total amount paid under the Agreement by Customer to Apkudo during the 12-month period preceding the occurrence of the event giving rise to liability, or (ii) 12 times the monthly Subscription Fee for the relevant Subscription Term. The foregoing limitations of liability shall not be applicable to a Party’s indemnification obligations under Section 9.0 or to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law.
11.2 APKUDO AND ITS AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THE AGREEMENT.
11.3 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THESE LIMITATIONS OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
11.4 Additional Coverage Terms. If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then the Apkudo Additional Coverage Terms available at Appendix 1 to these Master Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.
12.0 SUPPORT SERVICES
12.1 Services Provided. Subject to the terms and conditions of the Agreement, during the Subscription Term, Apkudo will provide support services to Customer in accordance with Apkudo’s support guidelines for the Services ordered.
12.2 Reasonable Efforts. Prior to making support requests to Apkudo, Customer shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Apkudo.
12.3 Standard Support Hours. Apkudo’s Support Team operates during the hours of 11:00 AM GMT to 5:00 AM GMT (19 hours), Monday through Friday, excluding holidays observed by Apkudo. Priority Support Hours for Critical (4) Cases are monitored 24/7, seven (7) days a week, including holidays observed by Apkudo.
12.4 Cases. Incident submissions will be managed via a Case. A Case is a document that records interactions between Customer and Apkudo support personnel.
12.5 Submission. All Incidents must be submitted via the Apkudo Platform, Apkudo Application(s) or interfaces (e.g. firstname.lastname@example.org) to the platform provided by Apkudo. In order for Apkudo to provide the Services, you must provide all information requested by Apkudo with respect to each Incident.
If Customer is unable to submit incidents via the methods above and communicates an incident directly to Apkudo personnel, Apkudo will submit the ticket on the customer’s behalf as soon as possible.
12.6 Customer Responsibility. The Customer is responsible for providing the following information when reporting a Problem:
- User's name, location, company;
- User’s call-back telephone number;
- Nature of the situation;
- Assessment of priority level;
- Description/history of Problem and the Customer’s efforts to resolve it (if any);
- Any other information reasonably required by Apkudo to diagnose the Problem.
12.7 Priority of Support. Apkudo will use commercially reasonable efforts to prioritize its response to Incidents depending upon the level of support applicable to such Incidents in the following order:
- General (4) – Issues that can be resolved via self-help and user-guided support.
- Basic (3) – Support for basic Customer issues such as solving usage problems and fulfilling service desk requests that need IT involvement.
- Priority (2) – Experienced and knowledgeable technicians assess issues and provide solutions for problems that cannot be handled by tier 1.
- Critical (1) – Assessment to business-critical issues by the highest technical resources which are deemed to be significantly impacting to Customer business operations.
12.8 Service Response Time. During Standard Support Hours, Apkudo will confirm receipt and Case Owner assignment of all Cases within 2 hours. Incident submissions received after standard support hours will be processed the next business day.
If Customer self-classifies as Case as Critical (Level 1), regardless of time of day, Apkudo will confirm receipt and owner assignment of the Case within 30 minutes.
Case Response time SLA reports are available upon request.
12.9 Case Resolution Time. Apkudo will use commercially reasonable efforts to resolve Priority and Critical Incidents as soon as reasonably possible but does not make any representations or warranties as to the timeframe for resolution of any Incident.
|Activity||General (4)||Basic (3)||Priority (2)||Critical (1)|
|Initial Response Time||2 Business Hours||2 Business Hours||2 Business Hours||30 minutes (24/7)|
|Update Resolution Target||No Target||Weekly||Daily||Every 4 hours or as agreed with Account Manager|
|Problem Resolution Target||As soon as reasonably possible without disrupting operations.||Fix provided in a scheduled future update of the Service or as possible before.||As soon as possible but no later than the next scheduled weekly sprint or as agreed by customer.||Work continuously until the system is recovered or a fix has been provided.|
In the event that additional on-site support is required to resolve Critical (Level 4) Cases, Apkudo will meet a quarterly average on-site response time of 48 hours.
12.11 Resolution Feasibility. In the event that Apkudo resolves your Incident or makes a determination that no resolution is commercially or technically feasible, Apkudo will provide you notice through the Case and close the Case. If further review is requested, Apkudo will re-open the Case and assign Case Ownership to Customer’s Apkudo Account Manager.
12.12 Case Closure. Any information, feedback, ideas or suggestions you provide to Apkudo with respect to a Software Bug or Feature Request shall be deemed a Submission. Apkudo shall, in its sole discretion, determine:
- 1. whether an Incident has been resolved;
- 2. whether a resolution is commercially feasible;
- 3. whether a support issue raised in a Case constitutes a Software Bug or Feature Request; and
- 4. whether or not and when to close the Case.
12.13 Case Confidentiality. Apkudo will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent Apkudo is required or permitted to disclose, access or use such information by Applicable Law). To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties or to give any notices or disclaimers to third parties prior your disclosure of Support Data to Apkudo, you agree to comply with such Applicable Laws prior your disclosure of Support Data to Apkudo.
12.14 Exclusions. The Support Services provided by Apkudo will not include the following:
- Service calls or work which Customer requests to be performed outside of Standard Support Hours (specified above);
- Hubs, trays, cables, attachments, stands, or any item not related to the mechanical or electrical operation of the Apkudo Platform;
- Repairs and/or service calls resulting from attachments not purchased from Apkudo;
- Any software, system support or related connectivity unless specified in writing by Apkudo;
- installation or de-installation and/or movement of the Serviced Products from one location to another unless specified in writing by Apkudo; and
- Repairs of damage or increase in service time caused by force majeure events.
12.15 Special Support Hours. Customer may request extended support for an additional fee.
13.1 Governing Law. The validity, construction, and interpretation of the Agreement and the rights and duties of the Parties shall be governed by the laws of the State of Maryland and controlling U.S. federal laws without regard to principles of conflicts of laws. The Parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to the Agreement.
13.2 Dispute Resolution. (a) Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs, fees and expenses incurred in connection with the arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator between the parties in such amount as the arbitrator determines is appropriate. Arbitration shall take place in Baltimore County, Maryland unless the Parties mutually agree in writing to another location. Notwithstanding the foregoing, a Party may, without waiving any remedy under the Agreement, seek from any court with jurisdiction interim or provisional equitable relief necessary to protect such Party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award, or otherwise related to the Agreement will be instituted and maintained exclusively in the federal or state courts situated in Baltimore County, Maryland.
(b) EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY TRANSACTION AND ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO THE OTHER PARTY’S ENTERING INTO THE AGREEMENT.
13.3 Force Majeure. Notwithstanding any other provision of the Agreement, neither Party shall be deemed in default or breach of the Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such Party.
13.4 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. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
12.4 Insurance. During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. best ratings of at least A (VII) or better, liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $5,000,000 Aggregate; (ii) Workers' Compensation & Employers Liability Insurance (as required by the state) ; and (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $5,000,000.
13.5 Notice. All notices required or permitted under the Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, acknowledged electronic mail, or by hand delivery. The notice address for Apkudo and Customer shall be their respective addresses specified in the applicable Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either Party may change its notice address by giving written notice to the other party by the means specified in this Section.
12.6. Construction; Headings. No provision of the Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings in the Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
13.7 Severability. If any provision of the Agreement is held by an arbitrator or court of competent jurisdiction to be contrary to or unenforceable under Applicable Law, then the remaining provisions of the Agreement will remain in full force and effect and the Parties agree to replace the offending provision with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with Applicable Law.
13.8 Waiver. The failure of either Party at any time to require performance by the other Party of any provision of the Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of the Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of the Agreement.
13.9 Entire Agreement; Amendments. The Agreement (including Order Forms entered under it) constitutes the entire agreement between Apkudo and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. The Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. The Agreement may be amended only by an instrument in writing executed by the Parties’ duly authorized representatives.
13.10 Counterparts; Signatures. The Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of the Agreement. For purposes of the Agreement, a facsimile copy of a Party’s signature made by reliable means shall be sufficient to bind such Party.
13.11 U.S. Government Entities. If you are a U.S. local, state or federal government entity, then the Apkudo Government Customer Additional Terms available at Appendix 2 to these Master Terms will apply to your Agreement. If these terms apply to you, then they are incorporated into the Agreement and will control in the event of any conflict with the Agreement.
13.12 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order shall control, but only as to that Order.
ADDITIONAL COVERAGE TERMS
If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then these Additional Coverage Terms apply. If, at any point during your Subscription Term, your Total Committed Subscription Value is below this amount, then these terms will not apply. We may update or change these terms in the same way as we can update or change our Agreement, as we describe in the Master Terms.
1. Apkudo Indemnification
We will indemnify, defend and hold you harmless, at our expense, against any Claim brought against you (and your officers, directors, employees, agents, and affiliates) by a third party not affiliated with you to the extent that such Claim is based upon or arises out of (1) an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations to you or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).&
As a condition of such indemnification obligation, you will: notify us in writing within thirty (30) days of you becoming aware of any such Claim; give us sole control of the defense or settlement of the Claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the Claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you, without your prior written consent.
We will not have any obligation or liability under this section if the alleged IP Infringement Claim is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, (iii) use of the Subscription Service in violation of or outside the scope of the Agreement, (iv) an allegation that the Subscription Service consists of a function, system or method traditionally utilized in marketing, sales, or services software that is not commercially unique to the Subscription Service, and the commercially unique aspects of the Subscription Service are not identified in the allegation giving rise to the IP Infringement Claim, or (v) user interface or related user design elements not provided by us.
Notwithstanding the foregoing, in the event of an IP Infringement Claim, or if we believe that such a Claim is likely, we may, at our sole option and expense: (a) modify the Subscription Service or provide you with substitute Subscription Service that is non-infringing; or (b) obtain a license or permission for you to continue to use the Subscription Service, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your Subscription Service (or a portion of the Subscription Service as necessary to resolve the claimed infringement) and refund all or a proportionate amount of any fees that you have previously paid covering use of the Subscription Service after the effective date of such termination. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
2. Performance Warranty
Notwithstanding anything contained in the ‘Disclaimer of Warranties’ section of the Master Terms, we warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service.
3. Limitation of Liability
Section 11.1 of the Master Terms is revised to read as follows:
“Except as expressly provided in this Section 11.1, neither Party (nor any Affiliate, licensor, or other supplier of Apkudo), shall have any liability under or in connection with the Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability (including negligence and strict liability), even if the injured Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with the Agreement shall never exceed the other Party’s actual direct damages, capped at an amount equal to the greater of (i) the total amount you paid under the Agreement during the 12-month period preceding the occurrence of the event giving rise to liability, or (ii) 12 times the monthly Subscription Fee for the relevant Subscription Term. The foregoing limitations of liability shall not be applicable to the extent of any damages that the liable party is not permitted to disclaim (or, as applicable, limit) under Applicable Law, to either Party’s express indemnification obligations under the Agreement, to your liability for payment of fees, or to your violation of Apkudo’s or its licensor’s intellectual property rights.”
4. Jurisdiction Specific Terms
If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000) and you are contracting with the Apkudo entity in the United States and no additional jurisdiction specific Additional Coverage Terms apply.
The 'Limitation of Liability' sub-section in the Germany section of Jurisdiction Specific Terms is revised to read as follows: Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ‘APKUDO INDEMNIFICATION’ SECTION, YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, AND OUR LIABILITY FOR FULL LIABILITY CLAIMS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM".
The 'Limitation of Liability' sub-section in the Columbia section of Jurisdiction Specific Terms is revised to read as follows:
Limitation of Liability. The ‘Limitation of Liability’ section set forth above is replaced in its entirety with the following: “EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ‘APKUDO INDEMNIFICATION’ SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF A PARTY OR ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM".
The 'Limitation of Liability' sub-section in the France section of Jurisdiction Specific Terms is revised to read as follows:
”EXCEPT FOR YOUR LIABILITY FOR (i) PAYMENT OF FEES, (ii) YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, (iii) YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, (iv) OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ‘APKUDO INDEMNIFICATION’ SECTION AND (v) OUR LIABILITY FOR LOSS OR DAMAGE THAT IS CAUSED BY OUR FRAUDULENT ACTION (“DOL”) OR OUR GROSS MISCONDUCT (“FAUTE LOURDE”), IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM".
U.S. GOVERNMENT CUSTOMER ADDITIONAL TERMS
If you are a U.S. local, state or federal government entity, including public institutions of higher education, that uses the Apkudo products or services (a “Government Customer”), then these Apkudo Government Customer Additional Terms apply. We may update or change these terms in the same way as we can our Agreement as we describe in the ‘Amendment; No Waiver’ section of our Master Terms.
These terms apply to the extent required by applicable law.
1.Government Customer Purpose
Government Customer may only use the Subscription Service and Consulting Services for a governmental-related purpose. These terms will not apply in the event the Subscription Service and/or Consulting Services are used for any private, personal, or non-governmental-related purpose.
Government Customer's obligations in the ‘Indemnification’ section of the Master Terms will only apply to the extent permitted by applicable law.
3. Limitation of Liability
The 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the Master Terms applies to the extent permitted by applicable law. The following sentence is also added to the end of the 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the Master Terms, or to the amended ‘Limitation of Liability’ section in the Apkudo Additional Coverage Terms in Appendix 1 to the Master Terms, if applicable: “ALSO PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO EITHER PARTIES’ LIABILITY ARISING FROM ITS NEGLIGENCE THAT RESULTS IN BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE PROPERTY.”
4. Contracting Entity and Applicable Law
The ‘Contracting Entity and Applicable Law’ section of the Master Terms is revised to read as follows:
You are contracting with Apkudo, Inc. and this Agreement is governed by the laws applicable to you as a Government Customer, or if no such laws are specified, then the laws of the Commonwealth of Massachusetts, U.S.A., without reference to conflicts of law principles. Government Customer agrees that we have standing and privity of contract to bring a claim directly against Government Customer in a court or body of competent jurisdiction.