Premium Terms and Conditions
These Terms and Conditions and the relevant Order Form (“Terms”) govern Licensee’s access to and use of the Services (as hereinafter defined). Licensee’s access to and use of the Services is conditioned on Licensee’s compliance with these Terms. By executing an Order Form, Licensee agrees to be bound by these Terms.
1. Definitions
1.1 “Clinks” means the content links enabled through the Services which permit the association of identified content on the Website with other content.
1.2 “Apture Pages” means the web pages or layers reached through Clinks and hosted by Apture.
1.3 “Confidential Information” means any technological, business, financial, customer, sales and other information, including these Terms, and any other information which is designated as confidential by the disclosing party in writing or which the receiving party knew or should have reasonably known was confidential.
1.4 “Effective Date” means the date specified on the Order Form.
1.5 “Go Live Date” means the date on which the Services first become visible to a user of any part of the Website.
1.6 “Licensee Material” means all content, Trademarks (defined below), text, graphics, photographs, video, audio, documentation and other information owned or licensed by Licensee and provided by Licensee to Apture under these Terms. Licensee Material does not include the Software or the Services.
1.7 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, right of privacy or publicity, or other similar personal or proprietary right of any person.
1.8 “Order Form” means a separate document setting forth certain order-specific configuration terms which has been executed by Licensee and Apture and which incorporates these Terms by reference.
1.9 “Revenue Share” means the percentage set forth on the Order Form to be paid to Apture of all amounts invoiced by Licensee to third parties in connection with Licensee Ads (defined in Section 3.3).
1.10 “Services” shall mean the services specified in Section A of the Order Form, the functionalities of which are described in Exhibit A to the Order Form.
1.11 “Software” shall mean the computer program(s) in machine readable object code form including the software provided to Licensee by Apture pursuant to these Terms to integrate the Services and the software run by Apture to operate the Services.
1.12 “Trademarks” means the icons, logos, trademarks, trade names, domain names and service marks owned or licensed by Licensee, including all applications and registrations thereof that are provided to Apture by Licensee.
1.13 “Website” means the websites identified on the Order Form, and any successor and replacement websites.
2. License; Ownership
2.1 License to Services. Subject to the terms and conditions of these Terms, Apture grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, license to access Services located at http://www.apture.com (or such other domain as Apture may indicate) for the sole purpose of enabling the Services to function on the Website.
2.2 Restrictions. Licensee shall not permit any third party to (i) produce, manufacture, distribute or otherwise copy all or any portion of the Services (including the Software); (ii) reverse engineer, disassemble, unbundle or decompile the Software in whole or in part or otherwise attempt to determine or discern source code for any part or all of the Software; (iii) alter or modify the Software in any way; (iv) use the Software beyond the scope of the license in Section 2.1; (v) attempt to access the Services other than from the Website. Only Licensee writers and editors who are Licensee employees or independent contractors may access the editing environment of the Services for the purpose of establishing and modifying Clinks. Licensee shall not remove, alter, cover or obscure any copyright, trademark or other notice placed by Apture on the Software and the Clinks or displayed by the Software on the Website.
2.3 Ownership of Software and Services. As between Apture and Licensee, the parties agree that the Software and Services are owned by Apture or its third party licensors or suppliers. No title to or ownership of any Software or Services, or any associated Intellectual Property Rights embodied therein, is transferred expressly or by implication to Licensee under these Terms. Apture, on behalf of itself and its suppliers and licensors, reserves all right, title and interest in and to the Software and Services (including, without limitation, any and all Intellectual Property Rights embodied therein.
3. Basic Services
3.1 Services Rollout. Licensee shall, install a single line of code provided by Apture on web pages of the Website to enable the interconnection of the Website with the Services. Apture shall use reasonable efforts to roll out the Services along the timeline set forth on Exhibit B of the Order Form. In the event that any delay in implementation is caused by Licensee, the schedule set forth in Exhibit B of the Order Form shall be subject to adjustment.
3.2 Use of Services. Licensee acknowledges that the effectiveness of the Services largely depends upon Licensee employees utilizing the Services to create Clinks on the Website. Licensee agrees to proactively encourage utilization of the Services by its employees and to provide such employees with the time and resources reasonably necessary to learn how to receive the full benefits of the Services.
3.3 Advertising. Licensee shall have the right to sell advertisements and sponsorships (“Licensee Ads”) within the designated areas of Apture Pages when rendered on the Website. Apture may place a “Powered by Apture” or similar logo on the Apture Pages created through the Service.
3.4 Professional Services. If Apture is providing any professional services, including but not limited to the customization of the Services, for Licensee, such professional services and the cost thereof is described in Section B of the Order Form. Additional professional services may be provided on mutual agreement and shall be invoiced at Apture’s then prevailing rates for such services.
3.5 Support Services. During the Term and at the rates specified in Section A of the Order Form, Apture will provide to Licensee, at Licensee’s request, with the support for the Services consisting of technical advice and end user assistance. There shall be no charge for resolving technical errors or bug fixes with the Service.
3.6 Availability of Services. Apture shall be governed by the Service Level Agreement set forth at http://www.apture.com/sla.
3.7 Reporting. Apture agrees to provide written monthly reports to Licensee containing total page views, page views by website/section/channel of the Website, the number of clicks on Clinks, most popular terms, most popular media types; and other information as the parties may mutually agree upon and in the format mutually agreeable between the parties solely for Licensee’s internal business use. Any additional reporting is subject to fees as specified on the Order Form.
3.8 Limited License to Licensee Materials. Licensee grants Apture a limited, royalty-free, non-exclusive, non-transferable license for the Term (as defined below) of these Terms to use the Licensee Materials in fulfillment of Apture’s obligations hereunder.
4. Payment
4.1 Cash Consideration. In consideration for the Services provided by Apture hereunder, Licensee shall pay Apture the Revenue Share and any other sums specified on the Order Form. All payments shall be due within 30 days after the date of Apture’s invoice. All payments not paid within forty-five (45) days of receipt of invoice shall bear interest at one and one-half percent (1.5%) per month. All amounts due under these Terms shall be stated and paid in United States dollars. Taxes are not included in the stated consideration. Licensee shall pay all applicable taxes or duties imposed under the authority of any foreign, federal, state or local taxing jurisdiction except taxes on Apture’s net income. Licensee shall not reduce any fees or charges owed to Apture as a result of any such taxes or duties.
4.2 Non-Cash Consideration. As further consideration for the provision of the Services, Licensee agrees to undertake the actions specified in the “Non-Cash Consideration” section of the Order Form.
4.3 Audit. Apture will be entitled, twice during and for a six (6) month period after the Term, to audit the books, records and systems of Licensee for purposes of determining compliance with these Terms. Licensee will cooperate fully with any such audit. In the event such audit discloses any underpayment, Licensee will promptly pay Apture such amount, together with interest accrued daily from the date such payment should have been paid at a rate equal to one and one-half percent (1.5%) monthly on the unpaid balance until paid in full.
5. Term and Termination
5.1 Term. The initial term of these Terms shall commence upon the Effective Date and continue for a period of one (1) year after the Go Live Date (the “Initial Term”). The Term will auto-renew for successive one year periods unless terminated in writing by either party with notice at least 90 days prior to the end of the then-current term (any renewal terms, collectively with the Initial Term, the “Term”). After the Initial Term the fees set forth on the Order Form shall be subject to annual adjustment by Apture; provided that if such adjustment is made less than 90 days prior to the renewal date, Licensee may terminate this Agreement for convenience by written notice delivered to Apture within 30 days after notice of the fee change.
5.2 Termination. This Agreement may be terminated immediately by either party upon delivery of written notice in the event that the other party:
5.2.1 has a receiver or similar party appointed for its property, or acknowledges its insolvency in any manner;
5.2.2 makes a general assignment for the benefit of its creditors other than in connection with a financing;
5.2.3 files a petition in bankruptcy under Chapter 7 of the United States Bankruptcy Code;
5.2.4 commits a material breach of any of the terms, conditions and agreements contained in the Order Form or these Terms, including any Exhibits or other attachment, which breach continues for more than 30 days after receipt of written notice and demand for cure thereof by the party seeking such termination.
6. Confidentiality
6.1 Use of Confidential Information. Each party to these Terms agrees that it will use all Confidential Information provided to such party (“Recipient”) directly or indirectly by the other party (“Disclosing Party”) solely for the purpose for which such information was provided in accordance with the terms of these Terms and for no other purpose. The Recipient will hold all Confidential Information in the strictest confidence. To that end, Recipient will keep all Confidential Information in a secure place; take all necessary measures to prevent unauthorized access, use, reproduction or disclosure thereof; and limit access to the Confidential Information only to those persons necessary in order for Recipient to fulfill its obligations under these Terms. In addition, Recipient will not disclose or otherwise reveal the Confidential Information, or any portion, summary or description thereof, or the fact that it has received such Confidential Information, to any unauthorized person. Recipient will notify Disclosing Party immediately in the event that any of the Confidential Information is lost, stolen or inadvertently disclosed to any unauthorized person.
6.2 Return. At any time upon the written request of the Disclosing Party, Recipient will return to Disclosing Party or destroy (at the option of the Disclosing Party) all originals and copies of all Confidential Information specified by the Disclosing Party and will not retain any copies of such information except for archival purposes.
6.3 Access. Any employees or other persons, including independent contractors, who are to be provided Disclosing Party’s Confidential Information by Recipient, will be bound by the terms and conditions of this Section 6 as if they were a party hereto. A breach by any such person of this Section 6 will also be considered a breach by Recipient.
6.4 Exclusions. Confidential Information shall not include any information that (i) is or subsequently becomes publicly available or generally known in the relevant industry without Recipient’s breach of any obligation owed to Disclosing Party; (ii) was known to Recipient (and such knowledge is evidenced by Recipient’s written records) prior to disclosure of any information by Disclosing Party; or (iii) is required to be disclosed by Recipient pursuant to subpoena or court order but only to the extent of such required disclosure, provided that Recipient will take all reasonable steps to give Disclosing Party sufficient prior notice to enable it to attempt to avoid such disclosure (if Disclosing Party so decides), will use all reasonable efforts to cooperate with Disclosing Party in such attempt and, if disclosure is required, will furnish only such portion of the Confidential Information as it is legally compelled to disclose.
7. Representations, Warranties, Indemnities and Limitations of Liability
7.1 Mutual Representations. Each party represents and warrants to the other that (i) it has full corporate authority to execute these Terms and to fulfill all of its obligations hereunder and in doing so it will not breach any existing contractual obligations with third parties; and (ii) it will comply with all applicable laws and regulations in performing these Terms.
7.2 Apture Representations. Apture represents and warrants to Licensee that: (i) the Services will operate substantially according to the specifications stated in the end user documentation related to such Services; and (ii) Apture will perform the Services consistent with industry standards reasonably applicable to the performance thereof.
7.3 Free Software. The Software includes or may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (“GPL”) or similar licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code (“Free Software”). For any Free Software, the source code is made available in a designated directory within the Software or designated internet page (http://www.apture.com/license/). If any Free Software licenses require that Apture provide rights to such Free Software that are broader than the rights granted in these Terms, then such rights shall take precedence over the rights and restrictions herein.
8. Indemnification
8.1 Each party (an “Indemnifying Party”) shall defend, indemnify and hold harmless the other party (the “Indemnified Party”) from and against all liabilities, damages, losses, costs and reasonable attorney’s fees finally awarded against the Indemnified Party or incurred as part of any settlement to the extent arising from any third party claims, actions or proceedings (each a “Claim”) involving:
8.1.1 as to Licensee, (i) any allegation that the Trademarks, the Website or Licensee Materials violate the Intellectual Property Rights of any third party; (ii) access and utilization of the Services by end users; (iii) representations and/or warranties provided to third parties by Licensee regarding the Services; (iv) violation of any law or regulation by Licensee; and (v) any actions by parties utilizing the passwords and usernames assigned to Licensee.
8.1.2 as to Apture, any allegation that the Services violate the Intellectual Property Rights of any third party. Notwithstanding the foregoing, Apture shall have no obligation under this Section or otherwise with respect to any Claim arising out of or related to (i) modifications made to the Services by Apture at Licensee’s request; (ii) use of the Services in combination with third-party software, hardware or data not supplied by Apture; (iii) any Free Software or (iv) failure by Licensee to implement updates or upgrades provided by Apture.
8.2 Conditions to Indemnification. In claiming any indemnification hereunder, Indemnified Party shall provide Indemnifying Party with prompt written notice of any Claim that Indemnified Party believes falls within the scope of the foregoing sections. The Indemnifying Party shall control the defense and all negotiations relative to the settlement of any such Claim and provided that Indemnifying Party shall not agree to any settlement that (i) imposes restrictions on Indemnified Party; (ii) makes an admission of liability or wrongdoing on behalf of the Indemnified Party; or (iii) requires any action by the Indemnified Party, other than the payment of any amounts, without such party’s prior consent. Indemnified Party shall provide such reasonable cooperation in the defense as Indemnifying Party may request and at Indemnifying Party’s expense. THE FOREGOING STATES EACH PARTY’S SOLE AND EXCLUSIVE REMEDY AND SOLE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS OF ANY KIND.
9. Disclaimers and Assumptions of Risk
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APTURE AND ITS PARTNERS, PRINCIPALS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE SERVICES PROVIDED HEREIN, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AGAINST INFRINGEMENT, ACCURACY, COMPLETENESS AND TIMELINESS.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY HERETO NOR ANY OF ITS OFFICERS, DIRECTORS, PARTNERS, PRINCIPALS, EMPLOYEES, AGENTS OR AFFILIATES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUES, GOODWILL, SECURITY BREACHES, VIRUSES, COMPUTER FAILURE OR MALFUNCTION, USE, DATA OR OTHER INTANGIBLE LOSSES OR COMMERCIAL DAMAGES, EVEN IF ANY OF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. OTHER THAN THE OBLIGATIONS UNDER SECTION 8 OR LICENSEE’S BREACH OF SECTION 2, NEITHER PARTY’S AGGREGATE LIABILITY HEREUNDER SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL CONSIDERATION PAID OR DUE TO APTURE BY LICENSEE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
11. General
11.1 Relationship of Parties. The parties to these Terms are independent contractors. Neither party is the agent, representative or partner of the other party, and neither has any right, power or authority to enter into any agreement or other commitment for, or incur any liability or obligation on behalf of, or otherwise bind, the other party.
11.2 Entire Understanding/Modification. These Terms constitute the entire understanding between the parties relating to the subject matter hereof, supersede any and all prior agreements relating to such subject matter and may not be terminated or modified except in a writing signed by the party to be bound thereby. The word “including” shall be interpreted as “including without limitation.”
11.3 Survival. Sections 2.2, 2.3, 3.7, 6, 8, 9, 10 and 11 will survive the expiration or earlier termination of these Terms.
11.4 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California as applied to contracts executed and to be performed therein without regard to principles of conflicts of laws. The parties hereby consent to exclusive jurisdiction and venue of the state and federal courts located in Santa Clara, California.
11.5 Notices; Contacts. Any and all notices or other communications or deliveries required or permitted to be given or made pursuant to any of the provisions of these Terms shall be deemed effective when received by the other party if sent via: certified or registered mail, return receipt requested and postage prepaid; personal delivery; or delivery via an overnight courier service to the addresses in the signature blocks below.
11.6 Excuse. No delay or failure to perform under these Terms (except for payment obligations) as a result of any causes or conditions which are beyond a party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence will be considered a breach of these Terms and such failure of performance shall be excused for the number of days such causes or conditions reasonably prevent performance.
11.7 Waiver. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof.
11.8 Severability. If any provision of these Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated thereby is not affected in any manner materially adverse to any party.
11.9 Assignment and Binding Effect. These Terms may not be transferred or assigned by either party without the prior written consent of the other except in connection with a merger, acquisition, consolidation, take-over or other corporate restructuring or any sale or other transfer of all or substantially all of the assets of a party or any change in control of a party. These Terms will be binding upon and inure to the benefit of each of the parties and their respective permitted successors and permitted assigns. Any attempted assignment in violation of this Section shall be void.