User Agreement / Software as a Service Agreement
Apito is a Limited Liability Company with an office located at 1309 Coffeen Avenue STE 1200, Sheridan, Wyoming 82801. (“Apito”). “You” or “Your” refers to the person using the apito.io website and the services made available through that website.
In this Agreement:
a) “Apito AUP” means the acceptable use policy available at https://www.apito.io/aup;
b) “Apito Console” means backend-as-a-service or low-code or no-code software development platform(s) or service(s) made available by Apito to Authorized Users;
c) “Apito IP” means the Apito Console, the Services, the Documentation, and any and all intellectual property provided to or used by a User in connection with the foregoing. For the avoidance of doubt, Apito IP includes the source code, Documentation, and data used to provide the Services, the Aggregated Statistics, and any information, data, or other content derived from Apito’s monitoring of User’s access to or use of the Services, but does not include User Data;
e) “Apito Solution” means a solution or application created or built by an Apito Developer using the Services.
f) “Confidential Information” means non-public information about the Apito Console, the Services, and the Apito IP, and any business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” communicated between the Parties in connection with this Agreement or Your use of the Services;
g) “Customer Data” means data provided to Apito by an End User through an Apito Solution;
h) “Developer IP” means the intellectual property of an Apito Developer that is incorporated into an Apito Solution, and excludes Aggregated Statistics and any information, data, or other content derived from Apito’s monitoring of User’s access to or use of the Services, and any independently developed intellectual property of Apito;
i) “Apito Developer” means any person or entity that uses the Apito Console and/or the Services to create and build an Apito Solution;
j) “Documentation” means Apito’s user manuals, handbooks, articles, and guides relating to the Services and the Apito Console provided by Apito either electronically or in hard copy form and includes (without limitation) all end-user documentation relating to the Services or the Apito Console that is available at www.Apito.io;
k) “End User” means any person or entity who uses or is authorized to use an Apito Solution;
l) “Services” means the software-as-a-service offered by Apito and includes the tools and features used by Apito Developers to create, test, operate, monitor and deploy Apito Solutions, and by End Users to access and use Apito Solutions;
m) “Suspension of Service” means the temporary or permanent suspension of User’s access to Apito Console or Services;
n) “Term” means any Initial Term and/or Renewal Term as defined in Section 10(a) of this Agreement;
o) “Third-Party Products” means any third-party products or services incorporated by Apito in the Apito Console or the Services and made available for use by a User; and
p) “User” means Administrator User, Apito Developer, or End User.
Agreeing to these Terms.
a) If You create an account on the Apito Console, You agree to this Agreement by acknowledging the Agreement during the account creation process. If You do not create an account, but otherwise access the Apito Console or the Services, You agree to this Agreement by either accessing the Apito Console or Services, or by downloading any application or content provided through the Apito Console, or by using any portion of the Apito Console that is accessible without an account.
c) If You are acting on behalf of an employer in connection with Your use of the Apito Console or Services or creation of an account on the Apito Console, the person using the Apito Console or creating the account warrants and represents that they have authority and permission to enter into this Agreement on behalf of that employer, in addition to entering into it on behalf of themselves. For the avoidance of doubt, if a User is acting on behalf of an employer in connection with the User’s use of the Apito Console or Services or creation of an account on the Apito Console, the User is entering into a legal agreement on behalf of User personally, and on behalf of the User’s employer, and Apito is relying on the above representation that the User is authorized to bind its employer to this Agreement.
2. Access and Use.
a) Provision of Access.
Subject to and conditioned on User’s payment of Fees, if applicable, and compliance with all other terms and conditions of this Agreement, Apito hereby grants You a non-exclusive, non-transferable (except in compliance with Section 11(h)) right to access and use the Services during the Term, solely for use by You in accordance with the terms and conditions herein. Apito shall provide You with the necessary passwords and network links or connections to allow You to access the Services. In the event that You are purchasing the Services to be used by multiple users, each User to which You give access to the Services will be an “Authorized User.” The total number of Authorized Users may not exceed the number set forth in the plan You purchase. In such a case, the foregoing grant of rights shall extend to the permitted number of Authorized Users, but to no others.
b) Documentation License.
Subject to the terms and conditions contained in this Agreement, Apito hereby grants to You and your Authorized Users a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(h)) license to use the Documentation during the Term solely for the User’s internal business purposes.
c) Use Restrictions.
No User may use the Services for any purposes beyond the scope of the access granted in this Agreement. No User shall, at any time, directly or indirectly, do any of the following: (i) copy, modify, or create derivative works of the Apito Console, Services or Documentation, in whole or in part, or allow any third party to do so; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Apito Console or the Services, in whole or in part; (iii) remove any proprietary notices from the Apito Console or the Services or Documentation; (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (v) resell the Services as a service to your customers, or (vi) use the Services or Documentation to create any software or service that may be competitive with, or a substitute for, the Services, including software or service that may be used to build, run and grow any web or mobile applications such as an “on demand”, “made to order” or “build it yourself” application. You can use the Services in this way only if you purchase a separate license for each final product incorporating the Services that is created using the application, or with the consent of Apito as part of a custom pricing arrangement. As an example and without limitation, You are not permitted to create a website or app builder without Apito’s prior written consent.
d) Reservation of Rights.
Apito reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You, any User or any third party any intellectual property rights or another right, title, or interest in or to the Apito IP.
Notwithstanding anything to the contrary in this Agreement, Apito may temporarily suspend any User’s access to any portion or all of the Apito Console or the Services if: (i) Apito reasonably determines that (A) there is a threat or attack on any of the Apito IP, (B) User’s use of the Apito IP disrupts or poses a security risk to the Apito IP, the Services, or to any other User or vendor of Apito, (C) User, is using the Apito IP for fraudulent or illegal activities, (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) Apito’s provision of the Services to User is prohibited by applicable law, or (F) User is not in compliance with this Agreement or the Apito AUP; (ii) any vendor of Apito has suspended or terminated Apito’s access to or use of any third-party services or products required to enable User to access the Services; or (iii) otherwise in accordance with this Agreement. Apito shall use commercially reasonable efforts to provide written notice of any Service Suspension to any affected Apito Developer and to provide updates regarding resumption of access to the Services following any Service Suspension once the conditions that gave rise to the Service Suspension have been addressed to the reasonable satisfaction of Apito.
f) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL Apito BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, ALTERATION, INTERCEPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER Apito WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE RESULTING FROM ANY UNAVAILABILITY OR SUSPENSION OF THE SERVICES. IN NO EVENT WILL Apito’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO Apito UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
g) Aggregated Statistics.
Notwithstanding anything to the contrary in this Agreement, Apito may monitor User’s use of the Services and collect and compile Aggregated Statistics. As between Apito and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Apito. You Acknowledge that Apito may compile Aggregated Statistics based on User Data input into the Services. You agree that Apito may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
3. User Responsibilities.
You are responsible and liable for all uses of the Apito Console, Services, and Documentation resulting from access provided by You and Your Authorized Users, and any third party who gains access to the Apito Console or Services through You or Your Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Each Apito Developer shall use reasonable efforts to make all End Users aware of this Agreement’s provisions as applicable to each Apito Solution, and shall cause End Users to comply with such provisions. Apito Developers understand and acknowledge that they are responsible and liable for obtaining a license agreement from each End User for such End User’s Data (in compliance with all applicable laws) prior to processing or storing such End User Data through or in connection with an Apito Solution.
b) License of Developer Solution.
c) Acceptable Use Policy.
Use of the Apito Console is further conditioned on all Users’ compliance with all terms and provisions of the Apito AUP. Your failure, or the failure of any of Your Authorized Users, to abide by the Apito AUP will be deemed and treated as a material breach of this Agreement.
e) Data Breach.
Electronic data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means, or stored on any equipment accessible through the Internet or any similar network or communication facility. Apito is not, and will not be, responsible or liable for any unauthorized access, dissemination, or use of any End-User Data or User Confidential Information or Developer IP, or any inability to use, loss, interruption, delay, or recovery of any data resulting from a breach of data or system security. Each Apito Developer understands and acknowledges that it is responsible and liable for securing all End User Data collected through its Apito Solution, and for notifying Apito and all affected End Users of any breach of data or system security of End User’s Data. Apito will use commercially reasonable efforts to protect Developer IP and End User’s data entered into or stored in Apito’s Environment, provided, however, that (to the extent permitted by law) Apito shall not be liable to any User or third party for any breach notification or beyond the liability limits set forth in this Agreement, and then only to the extent such breach is the result of Apito’s recklessness or affirmative wrongdoing.
f) Third-Party Products. Apito may from time to time make Third-Party Products available to Users. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If a User does not agree to abide by the applicable terms for any such Third-Party Products, then the User may not install or use such Third-Party Products. You acknowledge and agree that regardless of the manner in which such Third Party Products may be offered to you (bundled or integrated within certain Services, offered separately by Apito or persons certified or authorized by Apito, or otherwise offered anywhere on the Apito Console), Apito merely acts as an intermediary platform between you and such Third Party Products, and does not in any way endorse any such Third Party Products, or shall be in any way responsible or liable with respect thereto. Apito will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third-Party Products. Any and all use of such Third-Party Products shall be done solely at your own risk and responsibility and may be subject to such legal and financial terms which govern such Third Party Products, which you are encouraged to review before engaging with them. Apito MAY, AT ANY TIME AND IN ITS SOLE DISCRETION, SUSPEND, DISABLE ACCESS TO OR REMOVE FROM THE Apito IP, Apito SOLUTION, AND/OR THE SERVICES, ANY THIRD PARTY PRODUCTS – WHETHER OR NOT INCORPORATED WITH OR MADE PART OF THE Apito SOLUTION, THE Apito IP, OR THE SERVICES AT SUCH TIME – WITHOUT ANY LIABILITY TO YOU, YOUR AUTHORIZED USERS, OR TO ANY END USERS.
g) GDPR. You expressly acknowledge and agree that You and Your customers shall not submit to or process via the Services any personal data that is subject to or covered by the EU’s General Data Protection Regulation or any applicable national laws made thereunder (collectively, “GDPR”) unless and until You purchase the Apito platform and services package intended for the processing and distribution of such data and execute the related addendum. Apito may immediately and upon notice suspend all or portion of Your or Your customer’s access to the Services (without any liability to You or Your customer in connection with such suspension) if Apito has a good faith belief that You or Your customer has breached the restrictions in this paragraph. You acknowledge and agree that Apito shall have no liability to You or Your customers for any such data unless and until You purchase such Apito platform and services package.
4. Fees, PricingBk, and Payment.
a) Fees. Users who select a fee-based subscription shall pay Apito the fees (“Fees”) as set forth at apito.io(the “PricingBk Section”) including app.apito.io(the “Plans & Upgrades”), which may be updated from time to time. PricingBk in effect at the time the fee is earned will be charged to the User or applied to the User’s account. i) Refund. All Fees regarded to the successful delivery of services are non-refundable. In the event User objects to Apito’s Fees or pricing for any reason, User’s recourse is to cease use of the Services and cancel User’s account with Apito, after which no further Fees will be charged. Apito will use commercially reasonable efforts to notify the User of upcoming Fee changes, but Apito is not obligated to do so. ii) Delivery of Services Apito will upgrade Apito Console with services only after a successful payment confirmation made by the payment gateway, In most cases, an upgrade of service will occur instantly. In the event where Apito fails to upgrade the Apito Console with services within 12 hours, Apito will issue a refund within 7 days. b) Payment. To the extent not set forth herein, Payment terms and amounts shall be as set forth in the Price Sheet. All payments hereunder shall be made in US dollars or some other form of payment deemed acceptably by Apito in its sole discretion, on a monthly basis or such other periodic basis as set forth in the Price Sheet. Apito will process payment when due using the payment method selected by the User. If the User fails to make any payment when due (or the User’s selected payment method fails for any reason), without limiting Apito’s other rights and remedies: (i) Apito may immediately suspend services to that User and all of its Authorized Users until payment is made (ii) if such failure continues for thirty (10) days or more, Apito may terminate the User’s and all of its Authorized Users’ access to any portion or all of the Services and delete Developer’s Apito Solution, Developer’s IP and any End User Data stored in connection with the Apito Solution. To the extent permitted by law, Apito will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the User may incur as a result of a cancellation of Services in accordance with this Section. c) Taxes. All Fees and other amounts payable under this Agreement are exclusive of taxes and similar assessments. Each User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on Apito’s income.
5. Confidential Information.
From time to time during the Term, either You or Apito may disclose or make available to the other certain Confidential Information. Confidential Information does not include information that, at the time of disclosure (a) is or becomes publicly available with no wrongdoing of any person or entity; (b) is rightfully obtained by the receiving party on a non-confidential basis from a third party; or (c) is independently developed by the receiving party without reference to or use of the Apito Console. a) Apito Obligations. Apito shall use commercially reasonable measures to avoid disclosing the User’s Confidential Information to any person or entity other than to the extent necessary to provide the Services. Notwithstanding the foregoing, Apito may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Apito is making the disclosure pursuant to the order shall first have given written notice to Apito Developer; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Apito’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire when the user that provided the Confidential Information terminates its account and ceases use of the Apito Console, and Apito has deleted all Apito Solutions and End User Data associated with that User. b) User Obligations. User shall not use Apito’s Confidential Information for any purpose other than using the Services as permitted under this Agreement. The user also shall not disclose Apito’s Confidential Information to any person or entity, except to those Authorized Users who have a need to know the Confidential Information for User to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, User may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that User is making the disclosure pursuant to the order shall first have given written notice to Apito and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, the User shall securely delete all copies, whether in written, electronic, or other form or media, of Apito’s Confidential Information and, upon written request of Apito (even if such request is made after this Agreement expires or terminates for any reason), shall certify in writing that such Confidential Information has been destroyed and there are no remaining copies in the possession of control of User or any third party that may have received the Confidential Information from such User. User’s obligations of non-disclosure with regard to Confidential Information are effective as of the date User received such Confidential Information and will expire five years from the date first disclosed to that User; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law) of Apito, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection.
6. Intellectual Property Ownership; Feedback.
a) Apito IP. You, on behalf of Yourself and all Your Authorized Users, acknowledge and agree that Apito and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Apito IP You and each Authorized User receives only a limited right to use the Apito IP during the Term, to the extent necessary to use the Services and Apito Console, all other uses being forbidden. b) Developer IP. Apito acknowledges and agrees that, as between Apito and such User, Apito Developers own all right, title, and interest, including all intellectual property rights, in and to the Developer IP, and Apito has only a limited right to use the Developer IP during the Term to provide and improve the Services and the Apito Console. c) End User Data. Apito acknowledges that, as between Apito and User, User owns all right, title, and interest, including all intellectual property rights, in and to the User’s End User Data. User hereby grants to Apito a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for Apito to provide the Services, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Statistics. d) Feedback. If User or any of its employees or contractors sends or transmits any communications or materials to Apito by mail, email, telephone, or otherwise, suggesting or recommending changes to the Apito IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), such transmission constitutes an express and irrevocable permission for Apito to use such Feedback for any purpose irrespective of any other obligation or limitation between the Parties. User hereby assigns to Apito on User’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to such Feedback, and hereby warrants and represents that base is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. Notwithstanding the foregoing or anything else in this Agreement, Apito is not required to use any Feedback and shall decide in its sole and unfettered discretion what features and capabilities to provide through the Services and Apito Console.
7. Limited Warranty and Warranty Disclaimer.
a) Apito warrants that it will make commercially reasonable efforts to make the Services available to Authorized Users at all times during the Term other than for periodic maintenance periods, scheduled downtimes, and other downtimes caused by reasons outside the reasonable control of Apito. TO THE EXTENT PERMITTED BY LAW, THE FOREGOING WARRANTY DOES NOT APPLY, AND Apito STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS ALL OF WHICH ARE PROVIDED “AS IS” WITH NO WARRANTIES, EXPRESS OR IMPLIED, WHATSOEVER.
b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE Apito Console AND THE SERVICES ARE PROVIDED “AS IS” AND Apito HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Apito SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), Apito MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR Apito Console, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
User shall indemnify, hold harmless, and, at Apito’s option, defend Apito from and against any losses (including without limitation reasonable attorneys’ fees and litigation costs) resulting from any claim or allegation that (i) the Developer IP, Developer’s Apito Solution, or any use of the Consumer Data in accordance with this Agreement, violates, infringes or misappropriates such third party’s rights, including but not limited to privacy rights and intellectual property rights, (ii) User engaged in negligent or reckless acts (or omissions) or willful misconduct; (iii) any use of the Apito Console, Third Party Products, or Services in a manner not expressly authorized by this Agreement or the applicable third party agreement; (iv) User’s (any of their Authorized Users’) use of the Apito Console or Services or (v) any violation of law or breach of this Agreement by User or any of its Authorized Users. User may not settle any claim against Apito unless Apito consents to such settlement, and further provided that Apito will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability.
a) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT, WILL Apito BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCT OR SERVICE PROVIDED IN CONNECTION WITH IT, UNDER ANY LEGAL OR EQUITABLE THEORY INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, ALTERATION, INTERCEPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER Apito WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL Apito’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY USER TO Apito UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
c) Exclusions. The limitations of liability set forth in Section 9 shall not apply with respect to damages to persons for personal injury or wrongful death, or damages occasioned by the fraud, willful misconduct, or gross negligence of a party.
10. Term and Termination.
The initial term of this Agreement begins when it is accepted by You as set forth above and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the initial period set forth in the Price Sheet for the plan you Selected (the “Initial Term”) and any renewal terms set forth therein (each a “Renewal Term”). The Initial Term, together with each subsequent Renewal Term shall be referred to as the “Term.”
(ii) without limiting the foregoing, Apito may terminate this Agreement, effective on written notice to User, if User: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Apito’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5(b);
(iii) either party may terminate this Agreement, effective on written notice to the other party if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (iv) Apito may terminate this Agreement, effective immediately and automatically if You: (A) become insolvent or generally unable to pay, or fail to pay, Your debts as they become due; (B) file or have filed against You, a petition for voluntary or involuntary bankruptcy or You otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) make or seek to make a general assignment for the benefit of Your creditors; or (D) apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, User shall immediately discontinue use of the Apito Console and, without limiting User’s obligations under 5, User shall delete, destroy, or return all copies of the Apito IP and certify in writing to Apito that the Apito IP has been deleted or destroyed. No expiration or termination will affect the User’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the User to any refund.
d) Survival. All provisions of this Agreement that, by their nature should survive its termination or expiration shall so survive, including this Section 10 and Sections 1, 4, 5, 6, 7(b), 8, 9, and 11.
a) Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference constitutes the sole and entire Agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, Agreement, and representations and warranties, both written and oral, with respect to such subject matter. Notwithstanding the foregoing, if the parties have previously entered into, or in the future enter into, any confidentiality or non-disclosure agreement, such agreement, and this Agreement shall be construed together to provide the maximum permitted protection to Apito’s Confidential Information. To the extent the parties have entered into, or enter into, a corporate license, services, or similar agreement that is signed by authorized representatives of both parties, then any term or condition of that Agreement that is inconsistent with the terms of this Agreement shall control and prevail.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and (with respect to Apito) delivered by email to the address [email protected], or to You at the email address provided by You to Apito, as updated from time to time. Notice to Apito will be effective only after Apito confirms receipt. Notice to You will be effective on the earlier of the date You confirm receipt, or seventy-two (72) hours after the email has been sent, whichever is sooner. Notice may also be given to either party via registered U.S. mail (i) in the case of any corporation or entity at the address of such entity recorded with the division of corporations or similar authority through which such corporation or entity is formed, or (ii) in the case of an individual User, addressed to the address provided by such User to Apito.
c) Force Majeure.
To the extent permitted by law, in no event shall Apito be liable, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Apito’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of a law or any action taken by a governmental or public authority, including imposing an embargo.
d) Amendment and Modification; Waiver.
Apito may amend and modify these terms from time-to-time, each such amendment or modification to be effective as of the date the User next uses the Services. While Apito may notify you of any such Amendment, it is not required to do so. You are responsible for periodically monitoring this Agreement for amendments, which can be determined by reviewing the Effective Date set forth below. No amendment to or modification of this Agreement by the user shall be effective unless it is in writing and signed by an authorized representative of each party. In the event You have a good faith belief that any amendment to this Agreement by Apito has a material detrimental effect on You, You may terminate this Agreement upon thirty (30) days’ notice to Apito, provided such effect is not cured within such 30 day period. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(i) The parties to this agreement agree that any claim, dispute, or controversy, including all statutory claims and any state or federal claims, that may arise out of or relating to the this Agreement shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration shall be by a panel of one (1) qualified arbitrators experienced in the matters at issue. Location of Arbitration Proceedings. All arbitration proceedings shall be held in Miami-Dade County, Florida, U.S.A., in a location to be specified by the arbitrators or any other place agreed to collectively by the parties and the arbitrator. By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes.
(ii) Class Action Waiver.
The parties to this Agreement agree that (a) no arbitration proceeding hereunder whether a consumer dispute or a business dispute shall be certified as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or Persons similarly situated, and (b) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding. THE PARTIES TO THIS AGREEMENT AGREE TO ARBITRATE A CONSUMER DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND EACH PARTY WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
(i) Apito may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of User. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. (ii) User may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Apito, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
h) Reference Account.
You hereby agree to serve as a reference account for Apito. Specifically, (a) You agree to take prospective customer, press and analysts calls concerning Apito and its technology; (b) Apito may list You (using Your name and logo) in Apito’s marketing, sales and promotional materials as a reference customer of Apito, (c) Apito may issue a press release announcing that You are a customer of Apito, and You shall provide Apito with an appropriate supporting quotation for inclusion in the press release and any marketing sales and public relations materials, and (d) if requested, You shall assist Apito in developing a case study based on Your use of Apito’s product offerings. Each specific use of Your name and logo and the content of any press release or case study that mentions You is subject to Your approval, which approval will not be unreasonably withheld, conditioned or delayed.