APARAVI SOFTWARE CORP.
END USER LICENSE AGREEMENT
IMPORTANT! PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE YOU (A) ACCESS THE APARAVI SOFTWARE CORP. (“APARAVI”) CLOUD-BASED AND/OR HOSTED PLATFORM AND/OR SOFTWARE AS A SERVICE (THE “SOFTWARE”), OR (B) DOWNLOAD, INSTALL, OR USE AN ON-PREMISE VERSION OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU WILL NOT BE ALLOWED TO ACCESS OR DOWNLOAD THE SOFTWARE. BY CLICKING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS HEREIN, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON TO EXIT REGISTRATION.
THIS AGREEMENT IS A CONTRACT BETWEEN YOU AND APARAVI. AS USED HEREIN, “WE,” “US,” AND “OUR” SHALL MEAN APARAVI; “YOU,” “CUSTOMER” AND “YOUR” SHALL MEAN THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR, DOWNLOADS, OR USES THE SOFTWARE. ANY USE OF THE SOFTWARE BY YOU OR A THIRD PARTY ON YOUR BEHALF CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.
YOUR COMPANY HAS ENTERED INTO A MASTER SAAS AGREEMENT WITH APARAVI AND YOU WILL BE BOUND BY APPLICABLE ADDITIONAL TERMS CONTAINED IN THAT MASTER SAAS AGREEMENT. YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS IN THE MASTER SAAS AGREEMENT. IF ANY TERMS OF THE MASTER SAAS AGREEMENT CONFLICT WITH THE TERMS OF THIS AGREEMENT, THE TERMS OF THE MASTER SAAS AGREEMENT SHALL GOVERN.
1. OPENING USER ACCOUNT; LOGIN AND PASSWORD.
1.1 User Account. To open a user account, you must complete the registration process by providing APARAVI with current, complete, and accurate information as prompted by the registration form. In registering for the user account, you agree to submit accurate, current, and complete information and to promptly update such information upon any change. Should APARAVI suspect that such information is untrue, inaccurate, not current, or incomplete, APARAVI has the right to suspend or terminate your license to use the Software. If Customer is an entity, Customer will restrict access to the Software to employees of Customer or other third parties where the prior, written consent of APARAVI to such access has been obtained.
1.2 Login and Password. Upon registration, you will register a user name and personal password. You will be responsible for keeping your user name and password confidential. You will notify us immediately upon learning of any unauthorized use of your user name or password. APARAVI cannot and will not protect you from the unauthorized use of your user name or password. You will be responsible for all activities and charges incurred through the use of your user name or password, and any claims, liabilities, damages, losses, and costs (including reasonable attorneys’ fees) resulting from the unauthorized use of your user name or password.
2. RIGHTS AND OWNERSHIP. The Software is protected by intellectual property laws and APARAVI owns the right, title, and interest in and to the Software. You do not own the Software. Rather, you have a limited license to use the Software as long as your license remains in full force and effect pursuant to the terms in the Master SaaS Agreement. You and anyone acting on your behalf shall not: (a) modify, adapt, translate, reverse engineer, decompile, disassemble, derive source code, create derivative works based on, or copy the Software, except as otherwise permitted by the terms of this Agreement, (b) rent, sublicense, loan, transfer, provide, display, distribute or grant any rights in the Software, in any form, or (c) use the Software for any purpose other than for the limited purpose set forth in the Master SaaS Agreement.
3. LINKS TO THIRD PARTY SITES; THIRD PARTY INTERACTION.
3.1 The IP address that the Software is hosted on may contain links to web sites controlled by parties other than APARAVI. APARAVI is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party web sites or any transactions completed through such sites. APARAVI is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by APARAVI of the linked web site, notwithstanding the inclusion on such site of the trademarks of APARAVI or its respective third party vendors (“Third Party Providers”). It is your responsibility to take precautions to ensure that whatever materials you select for your use are sufficient for your purposes and are free of viruses or other items of a destructive nature.
3.2 Any materials provided by Third Party Providers have not been independently reviewed, tested, certified, or authenticated in whole or in part by APARAVI. APARAVI does not provide, sell, license, or lease any of the materials other than those specifically identified as being provided by APARAVI. Any correspondence with, purchase of goods or services from, or participation in third party promotions of such Third Party Providers is solely between you and the applicable Third Party Provider.
4. USER DATA.
4.1 APARAVI does not own any Data (as defined below) that you upload to any server using the Software, unless we specifically tell you otherwise beforehand. For purposes of this Agreement, “Data” means information, data, text or other materials, whether publicly posted or privately transmitted. APARAVI will not monitor or disclose any information regarding you or your account, including any of your Data, without your prior permission except in accordance with the terms of this Agreement. APARAVI may access your account or Data to respond to support related issues.
4.2 You, and not APARAVI, are responsible for all Data you upload using the Software. APARAVI does not control the Data uploaded via the Software and, as such, does not guarantee the accuracy, integrity or quality of such Data. Under no circumstances will APARAVI be liable in any way for any Data, including for any errors or omissions in any Data, or for any loss or damage of any kind incurred as a result of the loss of Data or the use of any Data uploaded or otherwise transmitted via the Software. You agree that you must evaluate, and bear all risks associated with, the use of any Data, including any reliance on the accuracy, completeness, or usefulness of such Data. You also agree that it is your sole obligation to backup, maintain, export and/or make copies of the Data.
4.3APARAVI reserves the right to establish or modify general practices and limits concerning use of the Software, including, without limitation, the maximum number of days that Data will be retained and the maximum disk space that will be allotted on APARAVI’s servers on your behalf.
5. USER CONDUCT. You agree not to use the Software to: (a) upload, post, e-mail or otherwise transmit any Data that (i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), (iii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or (iv) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (b) impersonate any person or entity, including an APARAVI representative, or otherwise misrepresent your affiliation with a person or entity, (c) interfere with or disrupt servers or networks connected to the Software, (d) intentionally or unintentionally violate any applicable local, state, national, or international law, (e) provide inaccurate, incomplete, outdated or misleading registration information, or (f) attempt to gain unauthorized access to the Software, other users’ accounts or account information, or other computer systems, servers or networks connected to the Software or any portion thereof.
6. TERM AND TERMINATION. The term of this Agreement (i.e., your limited license to use the Software) is set forth in the Master SaaS Agreement. The following sections of this Agreement shall survive the termination of this Agreement for any reason Section 1.2, Section 2 (solely with respect to APARAVI’s ownership of the Software) and Sections 3-10.
7. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND ANY OTHER SERVICES OFFERED BY APARAVI, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITH REGARD TO THE SOFTWARE, APARAVI MAKES NO WARRANTY REGARDING USE OR PERFORMANCE, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. APARAVI DOES NOT WARRANT WITH RESPECT TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. APARAVI SHALL HAVE NO LIABILITY FOR ANY VIRUSES RELATED TO THE SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APARAVI DOES NOT WARRANT THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE SOFTWARE WILL OPERATE OR BE USABLE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA, (C) THE OPERATION OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR (D) ANY PROGRAM ERRORS WILL BE CORRECTED. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE PROVIDES ACCURATE RESULTS OR IS SUFFICIENT FOR YOUR PURPOSES. APARAVI DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE SOFTWARE, OR ANY SERVICES OR MATERIALS OFFERED BY APARAVI. YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH AND SATISFACTION OF ANY APPLICABLE LAWS. THE PARTIES AGREE THAT APARAVI SHALL NOT HAVE ANY OBLIGATION TO BACKUP, MAINTAIN, EXPORT AND/OR MAKE COPIES OF ANY DATA, AND THAT APARAVI SHALL NOT HAVE ANY LIABILITY FOR ANY FAILURE TO BACKUP, MAINTAIN, EXPORT AND/OR MAKE COPIES OF SUCH DATA EVEN IF APARAVI PERFORMS BACKUPS OR OTHER SIMILAR PROCEDURES.
8. LIMITATION OF LIABILITY. APARAVI SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING OR DISTRIBUTING THE SOFTWARE. IN NO EVENT SHALL APARAVI BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER ARISING, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF APARAVI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION, BACKUP, MAINTENANCE AND/OR EXPORT, OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE SOFTWARE AND YOU WILL NOT MAKE A CLAIM AGAINST APARAVI FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, ERRORS, WORK DELAYS, LOST PROFITS, OR LOST OPPORTUNITIES RESULTING FROM THE USE OF THE SOFTWARE OR THE LOSS OF DATA. APARAVI STRONGLY RECOMMENDS THAT YOU TAKE ALL APPROPRIATE STEPS NECESSARY TO BACKUP, MAINTAIN, EXPORT AND/OR MAKE COPIES OF THE DATA. WITHOUT DIMINISHING THE GENERALITY OF THE FOREGOING, IN NO CASE SHALL APARAVI’S LIABILITY TO YOU UNDER ANY CAUSE OF ACTION EXCEED THE TOTAL AMOUNT THAT YOU OR YOUR COMPANY HAS PAID TO APARAVI FOR YOUR LICENSE (AS DEFINED IN THE MASTER SAAS AGREEMENT) DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION. THE LIMITATIONS OF DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND APARAVI. APARAVI WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO YOU UNDER THE TERMS OF THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
9. EXPORT CONTROLS. You shall comply with all export laws and restrictions and regulations of the United States or foreign agency or authority, and not export, or allow the export or re-export of the Software in violation of any such restrictions, laws, or regulations. By using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
10. GENERAL. The section headings in this Agreement are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” APARAVI shall not be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, disease, pandemics, acts of terrorism, shortages of materials, transportation delays, communication systems interruptions, power outages, earthquakes, fires, floods, labor disturbances, riots, or war.
