I. GENERALLY APPLICABLE TESTING SERVICES TERMS AND CONDITIONS.
1. Links to third-party websites. The Site may contain links to third-party websites. We do not monitor or control the linked sites, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Applause. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
II. PROVISIONS APPLICABLE TO CUSTOMERS.
Any Company making use of the Site hereby acknowledges and agrees that, with respect to testing services, Applause engages Testers to evaluate and provide software testing services. No guarantee is given that any or all test artifacts, including, but not limited to, bugs, test cases, test data, test scripts, and other test artifacts implemented by Applause from time to time, (collectively, “Test Artifacts”) in connection with a Company’s software will be found, diagnosed, or resolved as a result of engaging Testers through the Site.
Applause may, without liability hereunder and for the purpose of testing only, provide your Company’s confidential information (as defined below in Section VI (Terms for Products) of this Agreement) to Testers which have entered into non-disclosure agreements with Applause. You may require, through Applause’s platform, such Testers participating in the testing of your Company’s technology agrees to a non-disclosure agreement directly with Applause prior to such testing. For this purpose, confidential information shall mean any and all information which is either clearly marked as being confidential or which would be deemed confidential to a reasonable person receiving such information. Confidential information shall not include any information which (i) was in the public domain prior to disclosure, (ii) becomes part of the public domain through no wrongful act of Applause, (iii) was already known to Applause prior to such disclosure, or (iv) is independently developed by Applause without reference to such confidential information.
Applause shall retain all right, title and interest in and to its pre-existing materials, software, technologies, methodologies, and know-how, including but not limited to its proprietary platform (“the Platform”) which is currently accessible at the URL’s “Applause.com” and my.Applause.com” (collectively, “Applause IP”).
Unless you notify Applause in writing, Applause may display your Company name, logo and public description on the Site or in other Applause marketing materials.
1. Companies May Purchase:
a. The subscription period begins upon signature of the Order Form or Statement of Work, as applicable, and payment is due upon receipt of invoice.
(ii) On-demand testing services for various lengths of time (iii) Fixed Fee & On-Site Tester Services Companies may purchase testing services at a fixed fee for non-recurring testing needs and non-functional testing services.
These services need to be completed within the time period stated in the Applause Order Form or Statement of Work. If the Company does not use the testing services within this time period, the testing services will be deemed to have been earned by Applause and the Company shall have no right to a cash refund or credit. Companies may also purchase on-site tester services for a fixed hourly rate.
(iii) Professional Services and Training.
Customer may request that Applause provide certain professional services related to Customer’s use of the Products, including, by way of example, customization of the applicable Product or training of Customer personnel. Applause will have no obligation to provide or perform such services for or on behalf of Customer. Any such services will be provided pursuant to a separate agreement between Customer and Applause.
III. PROVISIONS APPLICABLE TO ALL TESTING SERVICES
A Company must either accept or decline new Test Artifacts reported by Testers by the earlier of (i) the tenth (10th) day following the receipt of an applicable Test Artifacts report from Testers, or (ii) the date that the testing project cycle is closed (hereafter, the “Acceptance Period”). You agree to pay Applause for all Test Artifacts which are either approved during the Acceptance Period or which are not timely declined during the Acceptance Period (i.e. which shall be deemed to constitute acceptance by you). You are responsible for the timely analysis, testing, approving and fixing of bugs and other Test Artifacts reported by Testers. You agree not to use your Applause.com account to post false or misleading project descriptions. You may not post project descriptions that are inappropriate for Applause’s audience, viewers, or visitors, as more fully described below. Applause shall have sole discretion, in determining the appropriateness of any content posted to or available through its web site. You shall not falsify your identity or the identity of any third-party. You agree to comply with all of Applause’s specified policies.
You agree and acknowledge that Applause may aggregate and share anonymous information with third parties, including data related to general testing time, standards, average number of bugs found and other Test Artifacts reported, the number of bugs fixed, and additional aggregated statistical reports regarding Companies’ applications that are being or have been tested. Applause will not specify any Company’s name or provide personal information relating to the Company (including e-mail addresses, accounts or financial information), but may mention the business areas or industries in which Companies operate and the type of applications or software being tested.
You agree not to solicit (other than by general advertisement), or hire, any employee or subcontractors of Applause (including, without limitation, any Tester who performs testing services for Applause) either on behalf of Your Company, or on behalf of any other company during the term of this Agreement and for a period of one year thereafter.
IV. PROVISIONS APPLICABLE TO SECURITY AND VULNERABILITY CUSTOMERS
1. Provisions Applicable to manual security and vulnerability test cycle performed by Applause community & security experts.
In no event shall Applause be liable for any damages arising out of the penetration tests or simulated attacks performed by Applause security experts and community as part as a security and vulnerability test cycle.
V. OTHER GENERAL PROVISIONS APPLICABLE TO ALL USERS
1. Limitations on Communication between Users.
Except for communications between Companies and Testers regarding projects for which the Testers are providing testing services to the Company, You are prohibited from making direct contact or engaging in any transaction, including commercial transactions, with other Users, whether through the Site or otherwise. You agree not to post Your e-mail address, phone number, or any other method of contact outside of the Site or give any of the foregoing information to another User. Testers and Companies working together on a project shall be provided with the necessary contact information.
2. Rights in Site Content.
Unless otherwise indicated, the Site Content, including all images, illustrations, icons, designs and written and other materials that appear on the Site are copyrights, trademarks, trade dress or other intellectual property owned, controlled, or licensed by Applause or its affiliates or are the property of their respective owners and are protected by U.S. and international copyright laws and conventions. Accessing the Applause.com web site does not authorize Users to use any name, logo, trademark or service mark in any manner. Permission is granted to display, download and print in hard copy format other resources of the Site solely for the purpose of using the Site as an internal or personal business resource. None of the resources may be copied, reproduced, distributed, republished, downloaded, displayed, posted electronically or mechanically, transmitted, recorded, in any manner mirrored, photocopied or reproduced without the prior written permission of Applause or the applicable owner.
3. Disputes between Testers and Companies.
Any disputes between Testers and Companies remain solely between such Companies and Testers. You acknowledge and agree that Applause will not be a party to any such dispute or be obligated to take any action or refrain from taking any action toward resolving any such dispute. If you have a dispute with any other Users of the Site, you hereby release Applause from any and all claims, demands, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, relating thereto.
5. Social Network Integration.
6. Transfer of Information.
7. Additional Slots.
At any time, Customer may add slots via an Order Form (as defined herein). Unless otherwise specified in the relevant Order Form, added slots will be coterminous with the pre-existing term. If Customer adds slots, then Customer’s number of committed slots shall be increased for the remainder of the current term and any additional renewal terms, as applicable. Customer will pay for any increase in slots at the time of execution of the applicable Order Form. Customer may only reduce the number of slots at the end of each term via an Order Form. Any such reduction of slots at the end of a term shall cause the rate for the remaining slots to be updated to reflect Applause’s then current prevailing rate, based upon the quantity of slots and length of upcoming term.
8. Digital Millennium Copyright Act.
Applause complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Website you may contact our Designated Agent at the following address:
Chris Malone, CFO & President, Applause, Inc. 100 Pennsylvania Ave., Suite 500, Framingham, MA 01701 United States of America Telephone: 508.480.9999 Email: email@example.com
Any notice alleging that materials on this website infringe intellectual property rights must include the following information:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of the material that you claim is infringing and where it is located on the Website;
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
VI. TERMS FOR PRODUCTS.
These Product Terms and Conditions (“Product Terms”) govern Applause’s provision of, and Customer’s use of certain Applause Products purchased by Customer pursuant to an Order Form that references these Terms.
“Access Term” means the period during which Customer and the Authorized Users are licensed to use a Product as set forth in an Order Form.
“Authorized Users” mean Customer’s employees and, contractors who are authorized by Customer to use the Service.
“Collected Data” means data and information collected by Applause from or through Customer Applications in the provision of the Products.
“Confidential Information” means (a) a Party’s proprietary technology or computer software in all versions and forms of expression and the Products, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively the “Proprietary Technology”); (b) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to any of the Proprietary Technology; (c) information regarding current or proposed products, customers, contracts, business methods, financial data or marketing data, financial results and projections, company and market strategy, product roadmaps, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters, and future releases, and all other information which would be deemed confidential to a reasonable person; and (d) offers or proposals which are provided by a Discloser, including, but not limited to, the fees charged by Discloser and such Confidential Information is either (i) in tangible or other form and labeled “confidential” or the like, or (ii) in a non-tangible form, including, but not limited to, oral information.
“Customer Application” means any of Customer’s developed software applications identified in an Order Form.
“Customer Content” means data, information, text, graphics, or other content provided, imported or uploaded through the Products in connection with a Customer Application, as well as the Collected Data.
“Documentation” means Applause’s standard user manuals and other technical materials relating to the Products.
“Fees” means the fees to be paid by Customer to Applause for a Product, as described in an Order Form.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Mobile System Operator” means any third party that manages the distribution of applications for a specific mobile operating system.
“Products”, collectively or individually, mean the products and related services identified in any Order Form, including Applause’s Mobile Beta Management product, Mobile Sentiment Analysis product and Applause’s standalone SDK product, together with any related Documentation. Products specifically exclude Applause’s testing in the wild services, which is governed by different set of terms.
“Restrictions” mean the usage limitations placed on Customer’s use of any Product as set forth in any Order Form. For example, Restrictions may include use of the Products in connection with only specific Customer Applications or a maximum number of Customer Applications that can be downloaded in connection with a particular Product.
“Sales and Use Tax” means any sales or use tax, and any other tax measured by sales, imposed by a taxing authority.
“Territory” means the territory set forth in the applicable Order Form.
Access Grant. Subject to the terms and conditions of the Agreement and any Restrictions set forth in an Order Form, Applause grants Customer a non-exclusive, non-transferable, non-sublicenseable right solely in the Territory to have its Authorized Users access the features and functions of the Products ordered under an Order Form solely for Customer’s internal business purposes and solely for the term as specified therein. Customer will safeguard, and ensure that all Authorized Users safeguard the user names and passwords associated with the applicable Authorized User. Customer will be responsible for all acts and omissions of Authorized Users. Customer will notify Applause immediately if it learns of any unauthorized use or any other known or suspected breach of security related to the Products.
3. Customer Applications.
As between the Parties, Customer is solely responsible for all aspects of the Customer Application, including all costs associated with its development. Without limiting the foregoing: (a) Customer may need to submit Customer Applications to a Mobile System Operator for approval prior to distribution and Applause does not guarantee acceptance of the Customer Application; (b) Customer will bear sole responsibility for end user support of the Customer Application; (c) Customer will require any end user or licensee of the Customer Application to agree to terms with Customer at least as protective of Applause and the Products as this Agreement; (d) Customer will ensure that any end user of the Customer Application provides all necessary consents for Applause to collect the Collected Data in accordance with this Agreement, and (e) Customer will follow all applicable rules and regulations promulgated by each applicable Mobile System Operator. Applause reserves the right to reject or suspend use of Products in connection with any Customer Application.
4. Customer Content
a) Rights. Customer will ensure the legality and appropriateness of the Customer Applications and the Customer Content and that the Customer Content and Customer Applications do not infringe on the rights of any third party, including any intellectual property right, any right of right of privacy or publicity or contain any defamation. Customer will obtain all third party licenses, consents and permissions needed for Customer to use the Customer Content to provide the Products. Applause reserves the right, but does not undertake the obligation to remove all Customer Content that breaches Customer’s obligations under this Section.
b) License. Customer Content will be and remain Customer’s property. Customer hereby grants to Applause a limited, royalty-free, license: (a) during the Term to use, copy, display, disclose, modify and distribute the Customer Content solely for the purpose of providing the Products and (b) on a perpetual basis, to use, copy, display, disclose, modify and distribute the Customer Content to create and compile aggregated data and/or statistics; provided, however, in any such aggregated data or statistics, Applause will ensure that the Customer Content is used in aggregated form only and in a manner that is not directly attributable to or identified with Customer.
c) Sensitive Data. Customer agrees and acknowledges that the amount and type of Collected Data is determined by Customer through the applicable Product and Applause cannot control the data it collects from or through the Customer Application. Customer will not submit or enable the collection of: (i) any personally identifiable information, except as necessary for the establishment of an account for an Authorized User; (ii) any protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). Customer agrees that Applause is not acting as a Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Applause has no liability under this Agreement for Sensitive Data.
a) Ownership. Except as expressly set forth in this Agreement, Applause and its licensors retain all right, title, and interest in and to the Products, and all related Intellectual Property Rights. Applause reserves all rights not expressly granted to Customer under this Agreement. Customer and its licensors retain all right, title, and interest in and to the Customer Application (other than any portion of the Products contained within the Customer Application (e.g., the SDK)), and all related Intellectual Property Rights. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Applause Platform, the Applause Products or the Intellectual Property Rights owned by Applause and its Suppliers. The Applause name, the Applause logo, and the product names associated with the Applause Platform are trademarks of Applause or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the Applause Product or Applause Platform, including any rights to the Intellectual Property Rights in connection therewith.
b) Restrictions. Except as otherwise expressly permitted in this Agreement, Customer shall use the Products solely for Customer’s business purposes, in compliance with applicable law, and shall not: (i) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party; (ii) use the Products for the benefit of any third party; (iii) incorporate any Products into a product or service you provide to a third party other than a Customer Application; (iv) interfere with or disrupt the integrity or performance of the Products; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (vi) remove or obscure any proprietary or other notices contained in any Product; (vii) use the Products or any Applause Confidential Information in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Products, or (C) copy any ideas, features, functions or graphics of the Products; (viii) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (ix) upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages; (x) transmit any worms or viruses or any code of a destructive nature; (xi) use the Products to falsely imply that Customer is another person or entity, including Applause, or to verbally abuse, harass or threaten any o person or entity.
c) Feedback. Applause in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer to Applause in connection with its access to and use of the Products (collectively, the “Feedback”). Customer hereby grants Applause a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Applause products and services.
d) Modifications. Applause reserves the right to modify the Products at any time without liability as long as such modifications are made across Applause’s customer base. In the event that Applause adds additional functionality to any Product that it generally does not make available to similar users of the Product (e.g., with similar restrictions and subscription levels), Applause may condition the implementation of such modifications on Customer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the version of the Product that Applause makes generally available (without such features) without paying additional fees.
6. Confidential Information
(a) A Party receiving Confidential Information (“Recipient”) of the other Party (“Discloser”) shall: (i) not disclose the Confidential Information to any third party at any time and Recipient shall limit disclosure of Confidential Information within its own organization to its employees or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by the terms of this Agreement; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Recipient shall be entitled to disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or by a regulatory agency or government body, provided that Recipient shall first give notice to Discloser and make a reasonable effort to obtain a protective order to protect the confidentiality of the information. If such protective order is not obtained, Recipient agrees to disclose only that portion of the Confidential Information which it is legally required to disclose. Recipient shall immediately notify Discloser of any actual or suspected unauthorized disclosure of Confidential Information. Recipient shall not modify, reverse-engineer, decompile, create other works from, or dissemble any software programs contained in the Confidential Information without Discloser’s prior written consent.
(b) The obligations described in Section 6(a) impose no obligation upon Recipient with respect to any Confidential Information which (a) is or becomes a matter of public knowledge through no fault of Recipient; (b) is rightfully received by Recipient from a third party without a duty of confidentiality to a third party by, or with the authorization of, Discloser; (c) is disclosed without a duty of confidentiality; or (d) is independently developed by Recipient. The burden of proving any of the above exemptions is on Recipient.
(c) Upon the written request of Discloser, Recipient shall immediately destroy or return to Discloser, as requested by Discloser, all Confidential Information of Discloser in its possession, together with all records in any manner pertaining to any of Discloser’s Confidential Information. Recipient shall also, upon the written request of Discloser, furnish Discloser with a certificate of an officer verifying that all of the foregoing have been destroyed or returned to Discloser.
(d) The terms set forth in this section replace any prior non-disclosure agreement executed between the Parties.
VII. Terms and Conditions Generally Applicable to Services and Products.
These General Terms and Conditions (“General Terms”) govern Applause’s provision of, and Customer’s use of Services and/or certain Applause Products purchased by Customer pursuant to an Order Form that references these Terms, as applicable.
1. Fees and Payment.
Customer will pay the Fee to Applause in the amount and on the schedule set forth in the applicable Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Unless otherwise specified in any Order Form, all invoices issued by Applause will be paid in advance and will be due and payable net thirty (30) days from date of invoice. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Unless otherwise specified in any Order Form, Applause reserves the right to increase the fees for the subscription service at the anniversary date of the commencement of each subscription term. If any Product, or payments for any Product, under this Agreement are subject to Sales and Use Taxes in any jurisdiction and Customer has not paid to Applause the Sales Tax specified in any invoice, Customer will be responsible for the payment of such Sales and Use Taxes and any related penalties or interest to the relevant tax authority. Customer will indemnify Applause for any liability or expense Applause may incur in connection with such Sales and Use Taxes. Upon Applause’s request, Customer will provide Applause with receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes.
2. Term and Termination.
a) Order Form Term. This Agreement will continue to apply as long as an applicable term(s) under an Order Form remains in effect, unless earlier terminated by either Customer or Applause as set forth herein or therein (the “Term”).
b) PoC Term. Upon the expiration of a Proof of Concept (“PoC”) Term, an initial 12-month Annual Term shall begin, unless Customer provides Applause with written notice of non-renewal at least fifteen (15) days prior to the renewal date, in which case the Customer may then terminate upon the conclusion of the then-current PoC Term.
c) Renewals. The term set forth in any Order Form (the “Access Term”) will automatically renew for successive periods equal in length to the initial Access Term, unless either Party provides notice to the other of its intent not to renew the Access Term no less than ninety (90) days prior to the end of the then applicable Access Term. In the event Access Term is equal to or less than 90 days in length, then such Access Term will automatically renew for successive periods equal in length to the initial Access Term at Applause’s then current rates unless otherwise negotiated by the parties, unless either Party provides notice to the other of its intent not to renew the Access Term no less than thirty (30) days prior to the end of the then applicable Access Term.
d) Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter: (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof. For the purpose of clarity and avoidance of doubt, termination for convenience is not available under this Agreement.
e) Termination by Applause. Applause may at any time terminate this Agreement if: (i) Applause is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful); (ii) the provision of the Product to Customer by Applause is, in Applause’s opinion, no longer commercially viable; or (iii) Applause has elected to discontinue the Product (or any part thereof).
f) Suspension of Products. At any time during the Term, Applause may, immediately upon notice to Customer, suspend access to any Product, at its discretion, including for the following reasons: (i) a threat to the technical security or technical integrity of any Product and (ii) any amount due under this Agreement is not received by Applause within ten (10) days of a notice that such amount is past due.
g) Effect of Termination. Termination of Customer’s account includes: (i) removal of access to all offerings within the Service; (ii) deletion of Customer’s password and all related information; and (iii) barring of further use of the Service. Upon expiration or termination, Customer will promptly discontinue use of the Service. However, Sections titled “Customer’s Responsibilities,” “Term and Termination”, “Ownership,” “Limitation of Liability,” “Indemnification,” “Confidential Information”, and “General” inclusive, shall survive any termination of this Agreement.
3. Warranty and Disclaimers.
a) Limited Warranty. Applause warrants that the Services shall be provided in accordance with industry standards and that the Products will conform to Applause’s then current Documentation in all material respects under normal use and circumstances. If Customer notifies Applause of a breach of warranty, Applause will reperform the nonconforming service. The foregoing constitutes Customer’s sole and exclusive remedy for any breach of warranty.
b) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION OR AN ORDER FORM AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE PROVIDED “AS IS,” AND APPLAUSE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE PRODUCTS (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY APPLAUSE. APPLAUSE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. APPLAUSE CANNOT AND DOES NOT GUARANTY THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM APPLAUSE, AN AFFILIATE OF APPLAUSE OR THROUGH THE SITE OR SITE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
c) Internet Delays. THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. APPLAUSE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS OR ANY OTHER FORCE MAJEURE EVENT.
4. LIMITATION OF LIABILITY.
YOU USE THE SERVICES, PRODUCTS, SITE, AND THE SITE CONTENT AT YOUR OWN RISK, AND NEITHER APPLAUSE NOR ANY AFFILIATE OF APPLAUSE WILLBE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCTS, OR ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF APPLAUSE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. APPLAUSE WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
THE TOTAL CUMULATIVE LIABILITY OF APPLAUSE ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCTS, AND ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO APPLAUSE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT APPLAUSE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT APPLAUSE’ SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. CUSTOMERS ARE FULLY LIABLE TO APPLAUSE FOR ANY MISAPPROPRIATION OR UNAUTHORIZED USE OF APPLAUSE’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE APPLAUSE PLATFORM AND PRODUCTS). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
a) Indemnification by Applause. Provided that Customer complies with the applicable procedures set forth herein, Applause will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Products infringe the intellectual property rights of such third party, and Applause will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If a Product becomes, or in Applause’s sole opinion is likely to become, the subject of an infringement claim, Applause may, at its option and expense, do one of the following: (i) procure for Customer the right to continue use of the Product, (ii) modify the Product so that it becomes non-infringing, or (iii) refund to Customer any fees prepaid by Customer under the Order Form for such Product, prorated for the amount of time remaining in the applicable term, and terminate the applicable Order Form by written notice to Customer. Notwithstanding the foregoing, Applause will have no obligation under this Section 5(a) or otherwise with respect to any infringement claim based upon (1) any use of the Product not in accordance with the terms of this Agreement; (2) any use of the Product in combination with other products, equipment, software, services, content, or data not provided by Applause; or (3) any modification of the Product by any person other than Applause or its authorized agents (collectively, the “Excluded Claims”). This Section 5(a) states Applause’ entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
b) Indemnification by Customer. Provided that Applause complies with the applicable procedures set forth herein, Customer will defend at its own expense any action against Applause brought by a third party to the extent that the action is based upon any Customer Application or Excluded Claim. Customer will pay those costs and damages finally awarded against Applause in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
c) Procedure. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will, within 15 days of receipt of such notice, give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.
a) Governing Law; Venue. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from this Agreement must be brought in the state or federal courts located in Middlesex County, Massachusetts. Each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
b) Assignment. This Agreement and any rights granted to Customer hereunder, are non-transferable, non-exclusive, non-assignable, limited and personal to Customer. Neither Party may assign its interest in this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Applause may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to Customer or Customer’s consent. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of Applause’s assets or any other transaction in which more than 50% of its voting securities are transferred. This Agreement will inure to the benefit of and be binding upon the Party’s successors and permitted assigns. Unless otherwise specifically agreed to by the nonassigning Party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement. Any assignment in violation hereof shall be null and void.
c) Publicity. Applause may refer to Customer as an Applause customer on Applause’s website and in sales presentations, and may use Customer’s name and logo for such purposes. Neither party will issue a press release announcing its relationship with the other party without the other party’s prior approval, not to be unreasonably withheld or delayed.
d) Remedies. Except as otherwise expressly specified in this Agreement, the rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity. Customer acknowledges and agrees that any actual or threatened breach by it of any confidentiality obligations or license restrictions will constitute irreparable harm for which monetary damages would be an inadequate remedy, and that in such event Applause will be entitled to obtain immediate injunctive relief to protect its rights under this Agreement.
e) Export Control and Economic Sanctions. Your use of Applause’s services, your access to the Site Content, and your utilization of Applause’s Platform and Products are subject to export controls administered by the United States. Customer agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause Applause to violate the same. Without limiting the foregoing, Customer covenants that Customer shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Applause under this Agreement to or for use in or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria), entity, or person subject to restrictions under the laws or regulations of any jurisdiction, including without limitation, the United States, without providing advance notification to Applause and obtaining prior authorization from the relevant government authorities as required by those laws and regulations. Prior to any such export event, Customer and Applause shall execute a written agreement to govern the use, control, and transfer of the applicable software and data. Customer hereby indemnifies and holds harmless, to the fullest extent permitted by law, Applause and our assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorney’s fees, that may arise as a result of Customer and Customer’s agents, officers, directors or employees breach of this provision.
f) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
g) Interpretation, Headings, Advice of Counsel, and Drafting. Headings used in this Agreement are provided for convenience only, and will not in any way affect the meaning or interpretation of each section. The Parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and that its terms will be interpreted without any bias against one Party as drafter. As used in this Agreement, the word “including” means “including but not limited to.”
h) Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth in the signature lines to this Agreement. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. Either Party may change its address by giving notice of the new address to the other Party.
i) Force Majeure. Applause shall not be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond its control, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of government, flood, fire, earthquakes, disease, civil unrest, acts of terror, strikes, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Applause’s possession or reasonable control, and denial of service attacks (each a “Force Majeure Event”). Applause shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof), it being understood that a Force Majeure Event shall not excuse any obligation of Customer to pay invoices due in accordance with the provisions hereof. Applause shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch.