MASTER SAAS AGREEMENT

            This Master SaaS Agreement (this “Agreement“) is entered into effective upon registration and installation of the Aparavi software, by and between APARAVI Software Corp., a California corporation (“APARAVI“) with a place of business at 1351 Third St. Promenade #206, Santa Monica, California 90401, and the entity on behalf whom you are registering and installing the Aparavi software (“Customer“). APARAVI and Customer are sometimes referred to jointly as the “parties” or singularly as a “party“.

 

RECITALS

 

WHEREAS, Customer desires to obtain access to the Services (as defined below), and APARAVI desires to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.

 

            NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

AGREEMENT

 

1.          SERVICES

 

1.1           Purpose.  This Agreement sets forth the terms and conditions under which APARAVI agrees to provide to Customer and its Authorized Users (as defined below), (a) access to the cloud-based and/or hosted APARAVI platform and/or software as a service and/or on-premise software, together with any applicable documentation thereto and programming and user interfaces therefor (the “Subscription Services“), and (b) if applicable, other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management services (the “Additional Services“, and collectively with the Subscription Services, the “Services“), as further set forth on each order form, online order, written quote, exhibit or statement of work issued hereunder and signed by the parties (collectively, an “Order Form“).  If other than online order, APARAVI’s standard Order Form is attached hereto as Exhibit A.[1]

 

1.2           The Services; Access and Use License.  Subject to the terms and conditions of this Agreement, during the Term (as defined below), APARAVI shall use commercially reasonable efforts to provide (a) Customer and Authorized Users access to the Subscription Services, and (b) if applicable, the Additional Services to Customer.  Subject to the terms and conditions of this Agreement, during the Term, APARAVI hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable, worldwide license to (i) download, install, and use the Software (as defined below) on the number of servers indicated in the applicable Order Form, provided that such servers must be owned, leased or otherwise controlled by Customer, or (ii) access and use the Subscription Services, in each case, solely for Customer’s internal business purposes as set forth herein.

 

1.3           Order Form.  Each applicable Order Form or online order shall specify and further describe the Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable software application, platform, limitations, fees, milestones (if any), term, and other applicable terms and conditions.

 

1.4           Changes to the Services.  APARAVI may make any changes to the Services that it deems necessary or useful in its sole discretion.  Customer should expect that APARAVI may make such changes (a) to maintain or enhance (i) the quality or delivery of the Services to its customers, (ii) the competitive strength of, or market for, the Services, or (iii) the Services’ cost efficiency or performance, or (b) to comply with applicable law.

 

2.          ACCESS TO THE SUBSCRIPTION SERVICES AND AUTHORIZED USERS

 

2.1           Administrative Users.  During the configuration and set-up process for the Subscription Services, Customer will identify an administrative username and password for Customer’s APARAVI account.  APARAVI reserves the right to refuse registration of, or cancel usernames and passwords it deems inappropriate.

 

2.2           Storage Providers.  To access the Subscription Services, Customer is recommended, but not required, to have an active account with an APARAVI-designated storage provider (“Storage Provider“).  When creating an APARAVI account, Customer will be provided the opportunity to select from a list of Storage Providers that the Subscription Services will integrate with.  Customer may use an existing account with a Storage Provider or create a new account with a Storage Provider.  Customer must make all applicable payments to the Storage Provider and keep Customer’s account with the applicable Storage Provider active for the Subscription Services to integrate with such Storage Provider’s services.  Customer’s payment for the Services is separate from and does not include fees owed to a Storage Provider.  Any and all liability for Customer Data (as defined below) stored by the applicable Storage Provider in connection with the Services is solely that of the applicable Storage Provider, and shall be addressed pursuant to the agreement between Customer and the applicable Storage Provider.

 

2.3           Authorized Users.  Customer may allow such number of Customer’s employees, independent contractors, and/or designees as is indicated on an Order Form to use the applicable Subscription Service on behalf of Customer (each, an “Authorized User“).  Each Authorized User subscription is for a designated Authorized User and cannot be shared or used by more than one Authorized User, but may be reassigned to a new Authorized User replacing a former Authorized User who no longer requires ongoing use of the applicable Subscription Services.  Customer shall be solely responsible for the acts and omissions of its Authorized Users.  APARAVI shall not be liable for any loss of Customer Data or functionality caused directly or indirectly by any Authorized User.  To the extent that any action or conduct of any Authorized User results, directly or indirectly, in any loss, harm, or liability to APARAVI or any third party, Customer shall be responsible for, and defend and hold APARAVI harmless from such loss, harm, or liability.

 

2.4           Authorized User Conditions to Use.  As a condition to access and use the Subscription Services, (a) each Authorized User shall agree (pursuant to a written, “click-through”, or other legally binding agreement) to abide by the terms of APARAVI’s End User License Agreement, and (b) the terms of this Agreement, or a subset hereof, and, in each case, Customer shall ensure such compliance.  Customer shall immediately notify APARAVI of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation.  Customer shall be liable for any breach of the foregoing agreements by any Authorized User.

 

2.5           Account Responsibility.  Customer shall be responsible for (a) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (b) securing its APARAVI account, log-in information, passwords (including but not limited to administrative and user passwords), and files.  Customer shall immediately notify APARAVI of any unauthorized use of any APARAVI account or password or any other known or suspected breach of security and use reasonable efforts to stop such unauthorized use.  APARAVI is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or log-in information.

 

3.          ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

 

3.1           Software Restrictions.  Customer shall not, nor permit or encourage any third party to, directly or indirectly (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover or derive the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software documentation or data related to the Services (collectively, “Software“), (b) modify, translate, or create derivative works based on the Services or any Software, (c) use the Services or any Software for timesharing or service bureau purposes or other computer service to a third party, (d) modify, remove, or obstruct any proprietary notices or labels, (e) use the Services or any Software in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Services or any Software, or (f) install the Software on servers that are not owned, leased or otherwise controlled by Customer.  For the avoidance of doubt, the Services and Software, including all user-visible aspects of the Services, are the Confidential Information (as defined below) of APARAVI, and Customer shall comply with Section 4 of this Agreement with respect thereto.  Subject to the limited licenses granted herein, APARAVI shall own all right, title, and interest in and to the Services and Software, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein.  Customer agrees to assign any and all right, title, and interest it may have in the foregoing to APARAVI from time to time promptly following APARAVI’s request without any additional consideration.

 

3.2           Customer Compliance. Customer shall use, and shall ensure that all Authorized Users use, the Services in full compliance with this Agreement, APARAVI’s End User License Agreement, and all applicable laws and regulations.  Customer represents and warrants that it (a) has accessed and reviewed any terms of use or other policies relating to the Services provided by APARAVI, (b) understands the requirements thereof, and (c) agrees to comply therewith.  APARAVI may suspend Customer’s account and access to the Services at any time and without notice if APARAVI believes that Customer is in violation of this Agreement.  Although APARAVI has no obligation to monitor Customer’s use of the Services or Software, APARAVI may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.  Customer shall comply with all applicable local, state, national, and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.  Customer acknowledges that APARAVI exercises no control over the content of the information transmitted by Customer or its Authorized Users through the Services.  Customer is solely responsible for collecting, inputting, and updating all content, data, and information recorded and stored in connection with the Services by Customer or its Authorized Users (collectively, “Customer Data“).

 

3.3           Cooperation.  Customer shall provide all cooperation and assistance as APARAVI may reasonably request to enable APARAVI to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing APARAVI with such access to Customer’s premises and its information technology infrastructure as is necessary for APARAVI to perform the Services in accordance with this Agreement.

 

3.4           Training and Education.  Customer shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of the Services, and to ensure that the Services are used in accordance with applicable manuals, instructions, specifications, and documentation provided by APARAVI from time to time.

 

3.5           Customer Systems.  Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking equipment, web servers, and the like.

 

3.6           Restrictions on Export.  Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services.  Customer agrees that such export control laws apply to Customer’s use of the Services (including technical data) and any services or deliverables provided under this Agreement, and Customer shall comply with all such export laws and regulations.  Customer agrees that the Services, including, without limitation, any data, information, software programs, and/or materials resulting from the use of the Services shall not be exported by Customer, directly or indirectly, in violation of applicable laws.

 

4.          CONFIDENTIALITY

 

4.1           Confidential Information.  Each party (the “Receiving Party“) understands that the other party (the “Disclosing Party“) has been, and may be, exposed to or acquire business, technical, or financial information relating to the Disclosing Party’s business (collectively, “Confidential Information“).  “Confidential Information” of APARAVI includes, without limitation, all non-public information regarding features, functionality, and performance of the Services and Software, along with any support data, diagnostic information, and telemetry information APARAVI collects.  “Confidential Information” of Customer includes non-public data provided by Customer to APARAVI to enable the provision of, access to, and use of the Services as well as all Customer Data.  Additionally, “Confidential Information” includes any information, (a) if in written, graphic, machine-readable, or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the Receiving Party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself, or (e) relating to this Agreement, including all pricing and related metrics.

 

4.2           Exceptions.  Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can demonstrate through documentary evidence (a) is or has become generally available to the public, (b) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to the Receiving Party without any restriction by a third party, or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.

 

4.3           Non-use and Non-disclosure.  With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to (a) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information that the Receiving Party uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (b) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information to any third party, and (c) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.

 

4.4           Encryption.  APARAVI may provide Customer the option and ability to encrypt the Customer Data that is managed using the Services.  If Customer uses the encryption feature of the Services, Customer will be required to create and maintain an encryption key.  APARAVI will not store or have access to Customer’s encryption key.  CUSTOMER WILL BE SOLELY RESPONSIBLE FOR MAINTAINING THE ENCRYPTION KEY.  IF CUSTOMER LOSES THE ENCRYPTION KEY, ACCESS TO CUSTOMER DATA WILL BE LOST.

 

4.5           Compelled Disclosure.  Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however, that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

 

4.6           Remedies for Breach of Obligation of Confidentiality.  The Receiving Party acknowledges that a breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages.  Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

 

5.          PROPRIETARY RIGHTS

 

5.1           Ownership.  Customer shall own all right, title, and interest in and to the Customer Data.  APARAVI shall own and retain all right, title, and interest in and to (a) the Services and all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP“).  To the extent Customer acquires any right, title, or interest in any Services IP, Customer hereby assigns all of its right, title, and interest in such Services IP to APARAVI.

 

5.2           Third Party Technology.  Third party technology that may be appropriate or necessary for use with certain APARAVI Software is specified within the Aparavi software, as applicable.  Customer’s right to use such third-party technology is governed by the terms of the applicable third-party agreement between Customer and the applicable third party, and not under this Agreement.

 

5.3           Customer Data License.  Customer hereby grants to APARAVI a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use and otherwise exploit Customer Data to provide the Services to Customer hereunder, and as necessary or useful to monitor and improve the Services, both during and after the Term.  For the avoidance of doubt, APARAVI may use, reproduce, and disclose Customer Data and related information and materials that are anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by APARAVI.

 

5.4           Submission and Feedback.  If Customer submits to APARAVI any unsolicited ideas, works, materials, proposals, suggestions, artwork, content, or the like, including for advertising campaigns, promotions, products, services, technologies, product enhancements, processes, marketing strategies, product names, content, or creative materials (collectively, “Submissions“), or any comments or suggestions regarding the Services or Software, marketing strategies, or APARAVI’s existing business (collectively, “Feedback“), Customer hereby assigns all of its right, title, and interest in any Submissions and Feedback and related intellectual property rights to APARAVI, including the right to use and otherwise exploit the Submissions and Feedback as necessary or in any manner as APARAVI chooses, both during and after the Term.  For the avoidance of doubt, Customer’s name is not considered a Submission or Feedback, and such information shall only be used by APARAVI for internal purposes.

 

5.5     No Other Rights.  No rights or licenses are granted except as expressly set forth herein.

 

6.          FEES AND PAYMENT

 

6.1           Fees.  Customer shall pay APARAVI the then-applicable fees described in an Order Form, as provided in Customer’s page in the APARAVI web application, or as listed on the Microsoft Azure Marketplace, in accordance with the terms set forth therein (“Fees“), including, for the avoidance of doubt, any fees incurred through Customer’s use of the Services exceeding the applicable Service’s capacity parameter.  The Fees charged will be calculated per the first of either (a) five (5) gigabytes, or (b) five million (5,000,000) files, of Customer Data managed by the Services and in accordance with the applicable classification policy.  APARAVI has the option, but not an obligation, to offer an amount of data management free of charge (“Free Data“), and in such case, the Fees owed to APARAVI will be calculated based on the amount of Customer Data managed by the Services that exceed Customer’s Free Data, if any.  The specific fee per gigabyte, the amount of Free Data, if any, and the calculation method may be updated or changed by APARAVI, in its sole discretion, at any time without notice to Customer.  However, APARAVI will in good faith attempt to notify Customer of changes to the Fees and applicable calculation methods by posting notice of such changes on the APARAVI web application; provided, however, that it is Customer’s responsibility to monitor the APARAVI web application for such changes.

 

6.2           Renewal Fees.  Upon the commencement of each Renewal Term (as defined below), Customer shall pay to APARAVI a Renewal Fee.  The “Renewal Fee” amount shall be based on the Services that Customer subscribes to, including, without limitation, any additional data, files, and classification policies.  The Renewal Fee shall be as set forth on each applicable Order Form for the corresponding Term; provided, however, such Fees may be increased in APARAVI’s sole discretion.  Customer hereby consents to APARAVI charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent.

 

6.3           Reimbursable Expenses.  In addition to the Fees, if applicable, Customer shall reimburse APARAVI for reasonable out-of-pocket expenses incurred by APARAVI in connection with performing the Additional Services.

 

6.4           Payment.  Customer must set up a payment preference with APARAVI.  APARAVI may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by APARAVI within thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form).  If Customer has elected for electronic payment, APARAVI, through an integrated third-party payment provider, will bill and initiate the processing of the payment of the Fees.  Customer hereby authorizes APARAVI to share certain information with the third-party payment provider for billing and payment processing purposes.  APARAVI will not store payment information but may access such information through the third-party payment provider.  Any and all liability for payment processing, including the maintenance of Customer information shall be borne solely by the third-party payment provider.

 

6.5           Delinquency in Payment.  Any unpaid amounts are subject to a finance charge of (a) one and one-half percent (1.5%) per month on any outstanding balance, or (b) the maximum amount permitted by law, whichever is lower, plus all expenses of collection.

 

6.6           Payment Disputes.  If Customer believes that APARAVI has billed Customer incorrectly, Customer must contact APARAVI no later than thirty (30) days after the closing date on the first billing statement in which the alleged error or problem appeared in order to be eligible to receive an adjustment or credit.  Inquiries should be directed to APARAVI’s customer support department or the applicable account manager.  If no complaint is received by APARAVI during such time period, the invoice shall be deemed accepted by Customer and amounts stated in the invoice shall be due and payable in accordance with the terms therein.

 

6.7           Taxes.  Customer shall pay, and shall be liable for, all taxes relating to APARAVI’s provision of the Services hereunder.  APARAVI shall pay, and shall be liable for, taxes based on its net income.

 

6.8           No Deductions or Setoffs.  All amounts payable to APARAVI hereunder shall be paid by Customer to APARAVI in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason except as may be required by applicable law.

 

6.9           Subpoena Expenses.  If APARAVI must provide information in response to a subpoena or court order related to Customer’s account, then Customer shall reimburse APARAVI for APARAVI’s costs.  Such costs may include, without limitation, fees for attorney and employee time spent retrieving records, preparing documents, drafting correspondence, and participating in depositions or other legal proceedings as well as other costs incurred in complying with such legal processes.

 

7.          TERM AND TERMINATION

 

7.1           Term.  This Agreement shall commence on the Effective Date and shall remain in effect for the period of time referenced in the applicable Order Form or online order, unless it is terminated earlier pursuant to Section 7.2 and Section 7.4 (the “Term“).  The Term shall automatically renew for additional, successive periods equal to the original Term set forth in the applicable Order Form or online order (each, a “Renewal Term“), unless written notice of non-renewal is provided to APARAVI at least (a) thirty (30) days prior to the expiration of the then-current Term, if the then-current Term is for a period of one (1) month, or (b) sixty (60) days prior to the expiration of the then-current Term, if the then-current Term is for a period of one (1) year.

 

7.2           Grace Period / Cancellation.  If the Term is for a period of one (1) month, Customer may rescind this Agreement within a seven (7)-day grace period commencing on the Effective Date.  If the Term is for a period of one (1) year, Customer may rescind this Agreement within a fourteen (14)-day grace period commencing on the Effective Date.  Nothing in this Section will limit APARAVI’S rights under Section 7.4 and Section 7.5 below.

 

7.3           Suspension.  APARAVI reserves the right to suspend delivery of and/or access to the Services without notice if Customer fails to timely pay any undisputed amounts due to APARAVI under this Agreement.  Suspension of the Services shall not release Customer of its payment obligations under this Agreement or the applicable Order Form.  APARAVI reserves the right to suspend delivery of and/or access to the Services if APARAVI reasonably concludes that Customer or an Authorized User’s use of the Services is causing immediate or ongoing harm to APARAVI or others.  In the event that APARAVI suspends delivery of and/or access to the Services, APARAVI shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue.  APARAVI shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Services in accordance with this Section.  Nothing in this Section will limit APARAVI’S rights under Section 7.4 and Section 7.5 below.

 

7.4           Termination.  APARAVI may terminate this Agreement upon written notice to Customer.  In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice to the other party if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party.

 

7.5           Effect of Termination.  Upon termination of this Agreement, each outstanding Order Form, if any, shall terminate, and Customer shall immediately cease all use of, and all access to, the Services and APARAVI shall immediately cease providing the Services.  If APARAVI terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to APARAVI all amounts (a) then due under this Agreement and any applicable Order Form, and (b) to become due during the remaining term of this Agreement and any applicable Order Form, but for such termination.  If Customer terminates this Agreement due to a breach by APARAVI, then APARAVI shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date.  Customer acknowledges that it will not have access to Customer Data through APARAVI or any Services following the expiration or termination of this Agreement.  Customer further acknowledges and agrees that (i) APARAVI shall not be obligated to maintain copies of Customer Data following the expiration or termination of this Agreement, and (ii) APARAVI’s customary practice is to delete Customer Data following the expiration or termination of this Agreement unless APARAVI is instructed not to do so pursuant to any legal proceedings or court order.

 

7.6           Survival.  Section 3 through Section 15 of this Agreement shall survive any termination or expiration of this Agreement.

 

8.          WARRANTY AND DISCLAIMER

 

8.1           Warranties.  APARAVI represents and warrants that it will perform the Additional Services in a professional and workmanlike manner.  Each party represents and warrants that it has the legal power to enter into this Agreement.  Additionally, Customer warrants that (a) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted to, or managed by the Services, (b) the provision and use of Customer Data as contemplated by this Agreement and the Services do not and shall not violate any privacy policy, terms of use, or other agreement to which Customer is a party, or any applicable law or regulation, and (c) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act, and the Gramm-Leach-Bliley Act.

 

8.2           No Guarantee of Access.  APARAVI provides the Services at its sole discretion.  APARAVI will make reasonable efforts to ensure that the Subscription Services are available at all times.  APARAVI will notify Customer of any planned down time for maintenance.  However, APARAVI cannot and does not guarantee that Customer will be able to access or use any or all of the Services at any time.  Should there be unplanned downtime, APARAVI will use its best efforts to restore the Services.

 

8.3           Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, APARAVI DOES NOT WARRANT THAT ACCESS TO THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR FREE, NOR DOES APARAVI MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SOFTWARE.  CUSTOMER ACKNOWLEDGES THAT APARAVI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES OR NETWORKS, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES OR NETWORKS.  APARAVI SHALL NOT BE LIABLE FOR ANY LOSS, UNAUTHORIZED ALTERATION, THEFT, OR DESTRUCTION OF CUSTOMER DATA.  FURTHER, APARAVI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY SERVICES PROVIDED BY ANY THIRD PARTY SERVICE PROVIDER, INCLUDING ANY STORAGE PROVIDER, RELATING TO OR SUPPORTING THE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN APARAVI AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER.  APARAVI IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CUSTOMER’S HARDWARE OR OPERATING SYSTEM SOFTWARE, OR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE OR SERVICES WITH ANY OTHER SOFTWARE.  THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS,” AND APARAVI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

9.          INDEMNITY

 

9.1                       Indemnification by APARAVI.  APARAVI will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action.  Customer seeking indemnification under this section shall (a) promptly notify APARAVI of the claim, (b) give APARAVI sole control of the defense and settlement of the claim, and (c) provide APARAVI the assistance, information, and authority reasonably requested by APARAVI in the defense and settlement of the claim.  The foregoing obligations do not apply with respect to portions or components of any Services (i) not supplied by APARAVI, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by APARAVI, (iv) combined with other products, processes, or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services or Software are held by a court of competent jurisdiction to be infringing, or is believed by APARAVI to be infringing, APARAVI may, at its option and expense (a) replace or modify the Services or Software to be non-infringing (provided that such modification or replacement contains substantially similar features and functionality), (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.  This Section states Customer’s sole and exclusive remedies for claims of infringement.

 

9.2                       Indemnification by Customer.  Customer agrees to indemnify, defend, and hold APARAVI and its shareholders, affiliates, partners, directors, officers, employees, agents, contractors, licensors, service providers, subcontractors, successors, and assigns harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Customer Data, or (b) Customer’s use of the Services.

 

9.3                       Indemnification by each Party.  Each party agrees to indemnify, defend, and hold the other party and its shareholders, affiliates, partners, directors, officers, employees, agents, contractors, licensors, service providers, subcontractors, successors, and assigns harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of its (a) breach of this Agreement, or (b) violation of any law or the rights of any third party.

 

10.     LIMITATION OF LIABILITY

 

IN NO EVENT SHALL (I) APARAVI’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) APARAVI HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT APARAVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.  CUSTOMER AGREES THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, AND THAT THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH LIMITATIONS.

 

11.     GOVERNING LAW, ARBITRATION, AND ATTORNEYS’ FEES

 

This Agreement is governed in all respects by the laws of the State of California, without giving effect to its rules relating to conflict of laws.  Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.

 

Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by confidential, binding arbitration under the American Arbitration Association, JAMS/Endispute, or any similar arbitration organization mutually acceptable to the parties (the “Arbitration Organization“).  Either party may send a notice to the other party of its intention to file a case with the Arbitration Organization under this Section (the “Arbitration Notice“).  The arbitration will be conducted by a single arbitrator knowledgeable in business contract matters and the commercial aspects of “software as a service” arrangements and intellectual property.  The parties shall mutually agree on one (1) arbitrator from the list provided by the Arbitration Organization who meets the foregoing knowledge requirements within thirty (30) days of the Arbitration Notice; provided that if the parties cannot agree, then each party shall select one (1) arbitrator from the list, and the two (2) arbitrators so selected shall agree upon a third arbitrator chosen from the same list, which third arbitrator shall determine the dispute.  The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing.  The arbitration shall take place in Los Angeles County, California, and shall be conducted in accordance with the then prevailing rules of the Arbitration Organization, except as set forth in this Section.  The parties shall have all rights for depositions and discovery as provided in Section 1283.05 of the California Code of Civil Procedure.  The arbitrator shall apply California substantive law and the California Evidence Code to the proceeding.  The arbitrator shall have the power to grant all legal and equitable remedies including provisional remedies and award compensatory damages provided by law, but the arbitrator may not order relief in excess of what a court could order.  The arbitrator shall not have authority to award punitive or exemplary damages.  The arbitrator shall prepare and provide the parties with a written award including factual findings and the legal reasoning upon which the award is based.  The arbitrator shall not have the power to commit errors of law or legal reasoning or to make findings of fact except upon sufficiency of the evidence.  Any award that contains errors of law or legal reasoning or makes findings of fact except upon the sufficiency of the evidence exceeds the power of the arbitrator and may be corrected or vacated as provided by applicable law.  The arbitrator shall award costs and attorneys’ fees in accordance with the terms and conditions of this Agreement.  Any court having jurisdiction may enter judgment on the award rendered by the arbitrator or correct or vacate such award as provided by applicable law.  The parties understand that by agreeing to binding arbitration they are giving up the rights they may otherwise have to trial by a court or a jury and all rights of appeal, and to an award of punitive or exemplary damages.  Pending resolution of any arbitration proceeding, either party may apply to any court of competent jurisdiction for any provisional remedy, including but not limited to a temporary restraining order or a preliminary injunction but excluding any dispute relating to discovery matters, and for enforcement of any such order.  The application for or enforcement of any provisional remedy by a party shall not operate as a waiver of the within agreement to submit a dispute to binding arbitration.

 

Should a lawsuit or arbitration be commenced to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable costs and reasonable attorneys’ fees in amounts to be determined by the arbitrator or judge, as applicable, in addition to any other recovery to which such party may be entitled, as well as such reasonable fees and reasonable costs in enforcing any judgment or award.

 

12.     NOTICES

All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on the applicable Order Form.  All communications will be deemed to have been received on the date actually received.  Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.

 

13.     FORCE MAJEURE

APARAVI is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, disease, pandemics, strikes, weather conditions, acts of hackers, internet service providers or any other third party, or acts or omissions of Customer or any Authorized User.

 

14.     ASSIGNMENT

Customer may not assign this Agreement to any third party without the prior written consent of APARAVI.  Any merger, reorganization, consolidation, sale of assets or similar transaction shall be considered an assignment with respect to Customer.  This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.

 

15.     GENERAL PROVISIONS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Any provision of this Agreement that contemplates performance subsequent to the expiration or earlier termination of this Agreement shall survive such expiration or termination and shall continue in full force and effect until fully satisfied. This Agreement, together with the applicable Order Form entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Order Form, this Agreement shall prevail unless otherwise expressly indicated in this Agreement or such Order Form. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof, (a) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement, (b) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation”, (c) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement, and (d) derivative forms of defined terms will have correlative meanings. This Agreement may be executed in one or more counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.