APTY BUSINESS AGREEMENT
This APTY BUSINESS AGREEMENT (this “Agreement”) is between Apty Inc., a Delaware corporation (“Apty,” “We” or “Us”), and the customer executing an Apty Order Form referencing this agreement (Customer,” “You” or “Your”). This Agreement governs Your access to and use of the Apty platform for creating, deploying, and using interactive on-screen engagement and guidance, described at www.apty.io (the “Services”). BY EXECUTING ANY APTY REGISTRATION AND ORDER FORM (“Order Form”) THAT REFERENCES THIS AGREEMENT, YOU and Apty AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
Grant of Rights. This Agreement grants You the following rights: Installation and Use.
Provision of Services. Apty access is granted per application and is limited to the subscription period mentioned in the applicable Order Form. Customer and users of Customer’s platform (“End Users”) may access and use the Services solely in accordance with this Agreement and any applicable Order Forms. Customer will be primarily responsible for any breaches of this Agreement by Customer and/or End Users.
Facilities and Data Processing. Apty shall use standard industry practices and security measures to transfer, maintain, and process Customer Data and shall in all cases comply with Appendix A. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, transfer, disclosure, modification, deletion and processing of Customer Data. Customer acknowledges and consents to allow Apty to transfer, store, and access Customer Data in the United States and locations other than Customer's home country, provided Apty uses the Customer Data solely for its internal purposes to provide the services and in compliance with all applicable laws. For purposes of this Agreement:
(i)“Customer Data” means Account Data, Configuration Data and Usage Data;
(ii) “Account Data” means the account and contact information submitted to Apty by Customer;
(iii) “Configuration Data” means the Customer-specific guidance and engagement information and data created using the Services, in particular the Apty Editor; and
(iv) “Usage Data” means information regarding use of the Services by End Users.
Service Levels. Apty will take commercially reasonable efforts to provide the Services in conformance with the Service Level Agreement attached hereto. Service Credits will be the sole and exclusive remedy for any service level breaches under the Service Level Agreement.
Modification to the Services. Apty may, from time to time, update the Services and related materials at its sole discretion provided that such updates will not diminish the services or eliminate functionality. If an update will materially alter functionality, Apty will notify Customer and the parties may thereafter mutually discuss the proposed changes and if necessary execute a change order to account for such material changes to the Services. Apty will utilize the email address associated with the account for any such notification.
Usage Limits. Services are subject to application and usage limits as outlined in this Agreement and/or the Order Form. Additional users may be added only with the prior written consent of Apty.
Unauthorized Use & Access. Customer shall prevent unauthorized use of the Services by the End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 16. Customer will promptly notify Company of any unauthorized use of or access to the Services to which it becomes aware of and agrees to Apty’s immediate suspension and termination of all unauthorized users.
Restricted Uses. Customer shall not copy or duplicate the Services nor reverse engineer, decompile, disassemble, modify or revise the Software, nor use the Services for purposes other than expressly permitted by this Agreement or the applicable Order Form. Customer shall not access the source code of the Services or any part thereof, or create derivative works thereof; nor rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services in whole or in part to any third party; nor use the Services in any illegal manner or in any way that infringes any right of any third party, including the rights in connection with privacy and intellectual property rights; nor bypass or breach any security device or protection, or input, upload, transmit or otherwise provide to or through the Services or the Apty platform any information or materials that are unlawful or injurious or contain any harmful code; nor disrupt, destroy, impair or otherwise impede any Services; nor otherwise access or use the Services beyond the authorized scope.
Intellectual Property Rights.
Content and Services. Customer retains all ownership and intellectual property rights in and to the Customer Data only. Apty or its licensors retain all ownership and intellectual property rights to the Services and Apty materials, including Apty program and ancillary programs, and derivative works thereof, and to anything developed or delivered by or on behalf of Apty under this Agreement. For the avoidance of doubt, all rights to any intellectual property related to the Services (other than to Customer Data) are expressly reserved by Apty and its third-party licensors.
Feedback. Apty may, at its discretion and for any purpose, use, modify, disclose, reproduce, and incorporate into its products and services, license and sublicense or otherwise distribute, any feedback, comments, or suggestions with respect to the Services that Customer or End Users send to Apty (“Feedback”) without any obligation to Customer. Both parties agree that all Feedback is and will be deemed given entirely voluntarily. Further, Apty will be free to exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
Access to Data. Customer hereby grants Apty and its agents all rights and permissions in or relating to Customer Data and the Customer content as are necessary or useful to perform the Services only or to enforce this Agreement and exercise Apty’s rights hereunder. Apty may not use or process Customer Data for any purpose other than as set forth in this Agreement or a Customer Order.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Each party agrees to disclose to the other party only information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to the terms and pricing under this Agreement, Customer Data residing in the Services environment, Feedback, and all information clearly identified as confidential at the time of disclosure. For the avoidance of doubt, Feedback, all Apty materials and the financial terms of this Agreement will be deemed to be Confidential Information of Apty and Customer Data is deemed the Confidential Information of Customer.
A party’s Confidential Information shall not include information that: (i) was or becomes a part of the public domain through no act or omission of the other party in breach of this Agreement; (ii) was rightfully known to, or in the other party’s lawful possession, prior to the disclosure and had not been obtained by the other party, directly or indirectly, from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (iv) is independently developed by the other party without reference to or use of any Confidential Information.
Each party will keep the other party’s Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care. Each party agrees not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; provided, however, that Apty will hold Customer Confidential Information that resides within the Services environment in confidence for as long as such information resides in the Services environment; and, provided, further, that each party will hold the other party’s trade secrets confidential for as long as they remain trade secrets under applicable law. Each party may disclose Confidential Information only to those of its and its’ affiliate employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity or pursuant to a court order as required by law; provided that, the non-disclosing party shall: (i) promptly, and prior to such disclosure, notify the disclosing party in writing of such compelled disclosure so that the disclosing party can seek a protective order or other remedy; and (ii) provide reasonable assistance to the disclosing party, at the disclosing party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
Fees & Payment.
Fees. Customer will pay all fees specified in any applicable Order Forms. Except as otherwise specified herein or in an Order Form:
fees are based on the Services purchased and not actual usage;
payment obligations are non-cancelable.
Customer is responsible for providing complete and accurate billing and contact information to Apty.
Taxes. Apty’s fees do not include sales tax, value-added tax, or any other levies or similar governmental assessments by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Apty has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Apty will invoice Customer and Customer will pay that amount unless Customer provides Apty with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Apty is solely responsible for taxes assessable against it based on its income, property and employees.
Term & Termination.
Term. This Agreement commences upon the execution of an Order Form incorporating these terms (the “Effective Date”) and will remain in effect so long as any Order Forms incorporating this Agreement remains in effect, or until Customer’s subscription to the Services expires or terminates. This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
Termination for Breach. Either Apty or Customer may terminate this Agreement if: (i) the other party is in material breach of any provision of this Agreement and fails to cure that breach within 30 days after receipt of written notice from the non- breaching party, or if such breach is not curable within 60 days; (ii) immediately, if either party breaches Section 4, or 5; or
(iii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Effects of Termination. Upon termination or expiration of this Agreement: (i) the rights granted by Apty to Customer will cease immediately (except as set forth in this section); (ii) any and all unpaid fees and expenses incurred in connection with the Services prior to termination shall become due and payable according to the applicable payment terms for such fees and expenses; (iii) Apty will provide Customer access to its account so that Customer may export its Customer Data; and (iv) after a commercially reasonable period of time, Apty shall delete any Customer Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: Section 4 (Intellectual Property Rights), Section 5 (Confidentiality), Section 7(c) (Effects of Termination), Section 8 (Indemnification), Section 9 (Representations, Warranties, Exclusive Remedies and Disclaimers), Section 10 (Limitation of Liability), and Section 11 (Miscellaneous).
By Customer. Customer shall indemnify, defend and hold harmless Apty and its affiliates and their respective directors, officers, shareholders, employees, agents, successors and assigns from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Apty regarding: (i) Customer’s rights to the Customer Data, (ii) Customer’s use of the Services in breach of this Agreement or in violation of any applicable law or (iii) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any End User, or any third party on behalf of Customer or any End User.
By Apty. Apty shall indemnify, defend and hold harmless Customer and its affiliates and their respective directors, officers, shareholders, employees, agents, permitted successors and permitted assigns from and against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer
for Apty’s infringement or misappropriation any copyright, trade secret, U.S. patent, or trademark right of the third party;
for Apty’s use of Customer Data or the security of Customer’s Data in breach of this Agreement; or (iii) negligence or more culpable act or omission (including recklessness or willful misconduct) by Apty or any third party on behalf of Apty. In no event will Apty have any obligations or liability under this Section8.b.(i) arising from: (i) use of any Services in a modified form by anyone other than Apty or in combination with materials not furnished by Apty that Apty reasonably does not expect Customer to use with such Services and if such infringement would not have occurred but for the modification or combination ; and (ii) any content, information, or data provided by Customer, End Users, or other third parties.
General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim at the indemnifying party’s sole cost and expense. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld, conditioned or delayed and (ii) the party seeking indemnification may participate in and observe, or join in the defense, with its own counsel at its own expense. If any of the Services or Apty materials are, or in Apty's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Customer's or any End User's use of the Services or Apty materials is enjoined or threatened to be enjoined, Apty may, at its option and sole cost and expense: (x) obtain the right for Customer to continue to use the Services and Apty materials as contemplated by this Agreement; (y) modify or replace the Services and Apty materials, in whole or in part, to seek to make the Services and Apty materials (as so modified or replaced) non- infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Apty materials, as applicable, under this Agreement; or (z) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Apty materials, and require Customer to immediately cease any use of the Services and Apty materials or any specified part or feature thereof and provide Customer with a pro- rata refund of any fees prepaid hereunder. THE INDEMNITIES ABOVE ARE APTY AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Representations, Warranties, Exclusive Remedies and Disclaimers.
Representations and Warranties.
Each party represents and warrants that it has validly entered into this Agreement and has the legal authority to do so.
Each Party will comply strictly with all applicable export and import laws and regulations, including but not limited, with the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Industry and Security and the trade sanctions administered by the U.S. Department of Treasury, Office of Foreign Assets Control. In particular, each Party: (1) agrees that it will not directly or indirectly conduct, promote or facilitate business in countries subject to U.S. embargo or trade sanctions in connection with this Agreement or use of any Customer platforms, products, and services (as of the date hereof, the countries subject to embargo or trade sanctions are Cuba, North Korea, Iran, Sudan and Syria) and each Party agrees that it is responsible for complying with any updates and revisions that the U.S. Government makes to this list of prohibited export destinations; and (2) represents and warrants that it is not located in a country subject to U.S. embargo nor a party identified on any government export exclusion lists, including the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists. In addition, Apty will provide Customer with all information that may be required for purposes of complying with trade laws, including export control classification numbers and details about the subject matter of the Agreement needed to make classification determinations.
Apty warrants that it will comply at all times with the provisions of the Privacy and Security Rider attached hereto as Appendix A and incorporated into this Agreement.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS.” APTY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE APTY SOFTWARE WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR APTY AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. APTY DOES NOT CONTROL, REVIEW, REVISE OR ENDORSE ANY THIRD-PARTY CONTENT, AND APTY DISCLAIMS ALL LIABILITY FOR ANY THIRD-PARTY CONTENT OR ANY CONTENT, DATA, MATERIALS, OR OTHER INFORMATION PROVIDED BY YOU OR ANY THIRD PARTY. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY CUSTOMER DATA.
Limitation of Liability.
Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR CLAIMS ARISING FROM OR SUBJECT TO SECTION 3 (CUSTOMER OBLIGATIONS), SECTION 5 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION), NEITHER CUSTOMER NOR APTY AND ITS AFFILIATES, WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS, (III) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY SERVICE CREDITS PURSUANT TO SECTION 1C, OR (IV) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, BREACH OF DATA OR SYSTEM SECURITY (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR CLAIMS ARISING FROM OR SUBJECT TO SECTION 5 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION), NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. FOR CLAIMS ARISING FROM OR SUBJECT TO SECTION 5 (CONFIDENTIALITY), OR SECTION 8 (INDEMNIFICATION), NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE GREATER OF (i) FOUR-TIMES (4X) THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR (ii) $500,000.
Entire Agreement. This Agreement, including Appendix A attached hereto and any applicable Order Form, and the terms, exhibits, and policies incorporated by reference or link, constitutes the entire agreement between Customer and Apty with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: (1) the applicable Order Form, (2) this Agreement.
Modifications. Any changes to this Agreement must be in a writing executed between the parties.
Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Texas.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Apty must be sent to 6735 Salt Cedar Way, Ste 300, Frisco TX 75034, with a copy to the Legal Department.
Waiver. No failure or delay by any party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (a) constitute waiver of such term, condition or obligation, (b) preclude such party from requiring performance by the other party at any later time, or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
Relationship of Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Force Majeure. Except for payment obligations, neither Apty nor Customer will be liable for an event beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition and governmental action).
No-Third Party Beneficiaries. Except for those persons and entities afforded indemnification in this Agreement, there are no third-party beneficiaries and nothing in this Agreement will confer any right, remedy, or obligation upon any third party.
SERVICE LEVEL AGREEMENT
Description of Software Products
“Apty Assist” is a tool that embeds instructional elements (Apty content: balloons, workflows, tooltips, announcements) to any web application, and analyzes how helpful such web application’s guidance is for the end users using analytics in Apty Admin. Apty Assist includes (as defined below):
“Apty Studio” for connecting to the hosting application, building instructional content, and previewing built elements live;
“Apty Widget” for providing access to the content built with Apty Studio, listening to the events, and collecting data for analytics; and
“Apty Admin” as a central hub for storing and managing (including publishing and translating) instructional elements for different web applications, creating onboarding procedures, creating user profiles, segmenting content for different user groups, accessing analysis of tools and element usage, and configuring global settings for international teams.
“Apty Insights” is a suite of tools that analyze end user behavior and help answering common burning questions such as “how many users are actively using the system” or “ how long does it take your employees to complete actions” Apty Insights consists of two main components;
“Apty Lens” for creating blueprints of how certain activities are expected to be performed within the hosting application (for example, which steps should be taken to create a new project or report, ensuring completeness of the procedure and consistency of data provided).
“Apty Insights Admin” is a web-based tool that maps the activities predefined by the Admin user in the Apty Lens and the actual actions of end users to analyze the significance of difference between them
“Apty Automation” simplifies even the most complicated processes in your application, removing the burden of completing mundane tasks with the help of robotic process automation (RPA) and artificial intelligence (AI). Apty Automation is a tool that consists of two components:
“Apty Automation Studio” serves as an Automation Admin console where bots are created and managed
“Apty Automation Client” is essentially a tool that launches an Apty bot and once installed and activated it is displayed at the right bottom corner of the screen of the hosting application.
Coverage Period or (CP)
The period of time during which the System Availability will be measured. Unless otherwise stated, Coverage Period will be equal to thirty days, expressed in aggregated number of minutes.
The service commitment does not apply to any unavailability, suspension or termination to the extent caused by:
(i) factors outside of Apty’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Apty; (ii) any actions or inactions of Customer or any third party; (iii) Apty’s suspension and/or termination of Customer’s right to use the Apty platform as permitted hereunder; or (iv) any planned or maintenance that Apty performs on Apty Studio on Saturdays and Sundays (GMT) as well as any periods of shutdown necessitated by emergency maintenance. Customers will be informed of planned maintenance at least one week in advance both by an email announcement to active admin users.
The system is not available to end users or administrators.
Potential System Availability or (PSA)
The amount of time that the Apty Assist, Apty Insights, and Apty Automation (and its Services) should be available in each Coverage Period (CP). For example, the Potential System Availability in November would be calculated in minutes such as 30 days x 24 hours x 60 minutes or 43,200 minutes. This is excluding Periods of Excused Downtime. Assist, Apty Insights, and Apty Automation (and its Services) are presumed to be available unless Customer notifies Apty otherwise in writing.
System Availability (SA)/ System Availability Percentage or (SAP) Definition
In any given month, Potential System Availability less Downtime, divided by Potential System Availability, expressed as a percentage.