Terms of Service

Version 2.10 - October 2016

Welcome, and thank you for your interest in Aptible, Inc. (“Aptible”, “we,” or “us”) and the Aptible services, including any platforms, APIs, interfaces, related web sites, networks, embeddable widgets, downloadable software, and other services provided by us and in which a link to these Terms of Service is displayed (the “Services”).

These Terms of Service are a legally binding contract between you and Aptible regarding your use of the Services. The general form of this Agreement is that we grant you a license to use the Services, and in return you pay us and agree to abide by our terms and policies.

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY ACCESSING, DOWNLOADING, USING, PURCHASING, OR SUBSCRIBING TO THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF SERVICE (THESE “TERMS”), INCLUDING THE APTIBLE ACCEPTABLE USE POLICY, FEES AND PRICING POLICY, PRIVACY POLICY, SECURITY POLICY, SUPPORT POLICY, AND TRADEMARK POLICY (TOGETHER, THIS “AGREEMENT”). If you are not eligible, or do not agree to this Agreement, then you do not have our permission to use the Services.

See Section 22 for defined terms.

You acknowledge and agree that, as provided in greater detail in this Agreement:

  • The Services are licensed, not sold to you, and that you may use the Services only as set forth in this Agreement;
  • The Services are provided “as is” without warranties of any kind, and Aptible’s liability to you is limited;
  • You are solely responsible for protecting the privacy and legal rights of your End Users, except as provided for in a Business Associate Agreement or Data Use Agreement between you and Aptible;
  • You are solely responsible for exporting Your Content and your Applications from the Services prior to closing your Aptible account; and
  • Disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND APTIBLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 19 below for the details regarding your agreement to arbitrate any disputes with Aptible.

This Agreement contains the terms and conditions that govern your access to and use of the Services (as defined in Section 22). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”).

This Agreement incorporates several policies. Failure to abide by your obligations under these policies constitutes grounds for suspension or termination of your account and revocation of your access to the Services. The incorporated policies (collectively, “Policies”) are:

  1. Acceptable Use Policy
  2. Fees and Pricing Policy
  3. Security Policy
  4. Support Policy
  5. Trademark Policy
  6. Privacy Policy

We provide certain Aptible Services pursuant to a Service Level Agreement and a Breach Indemnification Agreement.

In addition, please see our policy on Responsible Disclosure of security vulnerabilities.

1. Eligibility

You must be at least eighteen (18) years of age to use the Services. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with all applicable laws and regulations. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization. Aptible may, in its sole discretion, refuse to offer the Services to any person or entity, and may change its eligibility criteria at any time.

2. Your Account and Use of the Services

To access the Services, you must create an Aptible user account. You may also need to create an Aptible organization account, if one does not exist already.

When you register for the accounts, you may be required to provide us with some information about yourself, such as your phone number or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate at all times. You are responsible for all activities that occur under your accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). You may create additional user accounts for users within your organization.

Each Aptible user account is protected by credentials. You are responsible for maintaining the security of your credentials. Aptible and our affiliates are not responsible for unauthorized access to your account, except to the extent caused by our breach of this Agreement.

If you do not abide by your obligations, or if you violate our Acceptable Use Policy, we may determine your account to be not in good standing and may take Remedial Action pursuant to Section 5. Good standing is determined at Aptible’s sole discretion.

APTIBLE RESERVES THE RIGHT TO DISABLE ANY USER’S ACCESS TO ANY PART OF THE SERVICE, AND TO TERMINATE ANY USER’S ACCOUNT.

You may terminate your account and this Agreement at any time in accordance with Section 11.

A. Your obligations. Your obligations include, but are not limited to, the following:

  1. Your use of the Services must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software.
  2. You will provide us with true and accurate information and responses in connection with your use of the Services.
  3. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
  4. You will not attempt to gain access to Aptible’s internal administrative tools.
  5. You will not attempt to disrupt the Services.
  6. You will abide by the Acceptable Use Policy.
  7. You will abide by the restrictions in our Support Policy and Security Policy on how the Services may be implemented.
  8. You will remit payment timely for the services, as specified in the Fees and Pricing Policy and any purchase order you may execute.

B. Unauthorized uses. You are authorized access to the Services only to the extent necessary to develop and run Applications. You will not, and will not allow third parties under your control to violate our Acceptable Use Policy.

3. Privacy

A. Your privacy. Please read our Privacy Policy, the terms of which are incorporated into this Agreement.

B. Your users’ privacy. Aptible provides tools to help you protect and secure information at the infrastructure and platform levels. You are responsible for protecting the privacy and legal rights of your End Users at the Application level. Your obligations include but are not limited to:

  1. Properly configuring your Applications to protect your users’ information;
  2. Configuring and enforcing user access policies and permissions across your Applications; and
  3. Providing legally adequate privacy notices for your users, and informing them that their information may be available to Aptible and/or our affiliates.

We provide support and training to help you with these responsibilities. Please see our support resources, our Support Policy, and our training offerings.

4. Fees and Charges

A. Payments and pricing. You incur fees and charges based on your use of the Services. We calculate and bill fees and charges monthly or at the interval indicated in the Aptible Fees and Pricing Policy, or your billing agreement, as appropriate. We may bill you more frequently if we determine that your account is at risk of non-payment. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason.

We may change our Fees and Pricing Policy. In the event we do so, we will give you 30 days notice before the beginning of the billing cycle during which the revised policy will be applied.

Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all reasonable expenses and attorneys fees we incur collecting late payments. We reserve the right to discontinue the provision of the Services to you for any late payments.

Fees are based on our measurements of your use of the Services. Our determination is final. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at our discretion and only in the form of credit for the Services. Nothing in this Agreement obligates Aptible to extend credit to any party.

B. Taxes. You are responsible for paying all taxes and government charges and will pay us for the Services without any reduction. In the event that Aptible is obligated to collect or pay taxes, those taxes will be invoiced to you, unless you provide us with a timely and valid tax exemption certificate issued by the appropriate authority for each jurisdiction in which you claim exempt status.

If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

5. Suspension, Removal, and Remedial Action

Under some circumstances, you are obligated to suspend or remove an Application from the Services and take remedial measures. In addition, we reserve the right to suspend your account, suspend your access or your End Users’ access to the Services, and/or suspend or remove an Application (take “Remedial Action”). Our right to take Remedial Action is in addition to our right to terminate this Agreement pursuant to Section 11.

A. Your obligations. If you become aware that any Application or End User’s use of an Application or data violates the Acceptable Use Policy, you will immediately suspend that Application, remove the applicable data, or suspend access to that End User, whichever may be applicable to remedy the violation. If you fail to remedy the violation on your own, we will make a specific request that you do so. If you do not remedy the violation within the time period specified in our request (in no case later than 24 hours), we may take Remedial Action.

We reserve the right to take Remedial Action if you are in breach of this Agreement, including if you are delinquent on your payment obligations by more than 15 days.

B. Our obligations. We will always try to resolve Acceptable Use issues within a mutually acceptable timeframe. We reserve the right to take unilateral Remedial Action at any time, however, to enforce our policies and ensure the safety and security of our customers and their users. If we take Remedial Action without prior notice, we will provide the reason to you as soon as is practically possible.

C. Effect of Remedial Action. If we take Remedial Action:

  1. You remain responsible for all fees and charges you have incurred through the date of the Remedial Action;
  2. You remain responsible for any applicable fees and charges for any Services to which you continue to have access;
  3. You remain responsible for applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and
  4. You will not be entitled to any credits for any period of suspension.

6. Intellectual Property

A. Content. You are solely responsible for the development, operation, maintenance, and use of Your Content. For example, you are solely responsible for:

  1. Backing up and securing Content at the Application level, except as delineated in a Business Associate Agreement you may enter into with us, or to the extent backups or security controls are provided as part of the Services;
  2. Compliance of Content with the Acceptable Use Policy, other Policies, and any applicable laws or regulations;
  3. Any claims relating to Your Content; and
  4. Properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

You represent and warrant to us that:

  1. You or your licensors own all right, title, and interest in and to Your Content and Applications;
  2. You have all rights in Your Content and Applications necessary to grant the rights contemplated by this Agreement;
  3. None of Your Content, Applications or End Users’ use of Your Content or Applications, or the Services, will violate the Acceptable Use Policy; and
  4. You will set up a process to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act.

Aptible responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. Please see Section 7 of this Agreement. We reserve the right to take Remedial Action upon receipt of a valid DMCA notice.

B. Proprietary rights. In general, except as expressly set forth below in Sections 8 and 9, this Agreement does not grant either party any rights, implied or otherwise, to the other’s Content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in your Applications and customer data, and we own all intellectual property rights in the Services.

Notwithstanding that general principle:

  1. You consent to our use of Your Content to provide the Services to you and any End Users;
  2. We may disclose Your Content to provide the Services to you or any End Users;
  3. We may disclose Your Content to comply with any request of a governmental or regulatory body (including subpoenas or court orders); and
  4. If you provide any suggestions to us, we will own all right, title, and interest in and to your suggestions, even if you have designated the suggestions as confidential. We and our affiliates will be entitled to use your suggestions without restriction. You hereby irrevocably assign us all right, title, and interest in and to your suggestions.

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Aptible Services, please notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:

  1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  2. Identification of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing and where it is located on the Service;
  4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
  6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

Submit the above information to:
Aptible, Inc.
Attn: DMCA Notices
220 NW 8th Ave
Portland, OR 97209

Aptible will promptly terminate without notice the accounts of users that are determined by Aptible to be “repeat infringers.“ A repeat infringer is a user who has been notified of infringing activity or has had Content removed from the Service at least twice.

This procedure is exclusively for notifying Aptible that your copyrighted material has been infringed. This policy is intended to protect and comply with Aptible’s rights and obligations under the DMCA, including 17 U.S.C. § 512(c), but does not constitute legal advice. You should contact an attorney for counsel regarding your specific legal rights and obligations.

8. Your Licenses from Aptible

A. The Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services solely in accordance with this Agreement. This license is valid only during the term of this Agreement, and is revoked upon termination. This license is subject to the following restrictions:

  1. Neither you nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by this Agreement.
  2. Neither you nor any End User may, or may attempt to (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, (d) resell or sublicense the Services, or (e) circumvent any security mechanisms used by Aptible, the Services, or any Applications running on the Services.
  3. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
  4. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.

B. Our trademarks. Aptible hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Aptible trademarks for the sole purpose of promoting or advertising that you use the Aptible Services. This licenses shall be exercised only in accordance with the current version of our Trademark Policy. You agree that all goodwill generated through your use of the Aptible trademarks shall inure to the benefit of Aptible.

9. Our Licenses from You

A. The Services. You hereby grant us a worldwide, non-sublicensable, non-transferable, non-exclusive, terminable, limited license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, host, store, transfer, modify for the purpose of formatting for display, and distribute any Application and/or data (including Your Content) for the sole purpose of enabling us to provide you with the Services.

B. Your materials. You agree that Aptible, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) in any media format on any media channels for the purpose of advertising or publicizing your use of the Services.

10. Modification of the Services

You acknowledge and agree that the form and nature of the Services which Aptible provides may change from time to time without prior notice, subject to the terms in Section 5. Changes to the form and nature of the Services will be effective with respect to all versions of the Services; examples of changes to the form and nature of the Services include without limitation changes to the Fees and Pricing Policy, security patches, added functionality, and other enhancements.

11. Termination

The license granted in this Agreement will remain in effect, unless terminated earlier as set forth in this Agreement. Sections 6 (Intellectual Property), 11 (this Section), 13 (Indemnification), 14 (Exclusion of Warranties), 15 (Limitations of Liability), 18 (Governing Law), 19 (Dispute Resolution and Arbitration), and 21 (General Terms) shall continue to be effective after this Agreement is terminated.

You may terminate this Agreement at any time by canceling your account. You will delete any Applications and customer data from the Services prior to closing your account. You will make your own copy of regulated data, including protected health information as defined in 45 C.F.R. § 160.103, prior to canceling your account. You will not receive any refunds if you terminate this Agreement.

We may, in our sole discretion for any or no reason, terminate this Agreement by canceling your account or any portion of your access to the Services. You agree that any termination of your access to the Services may be without prior notice, and you agree that Aptible will not be liable to you or any third party for such termination.

If the Agreement is terminated, all of your rights under this Agreement immediately terminate and all fees and charges (including any applicable taxes) owed by you to us are due immediately, including fees and charges for in-process tasks completed after the date of termination.

YOU ARE SOLELY RESPONSIBLE FOR EXPORTING YOUR CONTENT AND APPLICATIONS FROM THE SERVICES PRIOR TO CLOSING YOUR ACCOUNT. IF WE CANCEL YOUR ACCOUNT, WE WILL PROVIDE YOU A REASONABLE OPPORTUNITY TO RETRIEVE YOUR CONTENT AND APPLICATIONS, AS PERMITTED BY LAW.

12. Modification of these Terms

We reserve the right, at our discretion, to change these Terms, as well as the Policies, on a going-forward basis at any time. Please check these Terms and the Policies periodically for changes. In the event that a change to these Terms or Policies materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms or Policies materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms or Policies, as applicable. If we require your acceptance of the changed Terms or Policies, changes are effective only after your acceptance. If you do not accept the changed Terms or Policies, we may terminate your access to and use of the Services. All other changes are effective upon publication of the changed Terms or Policies. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

13. Indemnification

A. Our Obligations to You. Please see the Breach Indemnification Agreement.

B. Your Obligations to Us. You agree that you will be responsible for your use of the Services, and you agree to defend and indemnify Aptible and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”Aptible Entities“) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Services; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim. The assumption of such defense or control by us, however, shall not excuse any of your indemnity obligations.

14. EXCLUSION OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APTIBLE DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. APTIBLE IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR APPLICATION AND CUSTOMER DATA, EXCEPT WHERE BACKUP OR SECURITY CONTROLS ARE EXPRESSLY PROVIDED AS FEATURES OF THE SERVICES. APTIBLE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE, TIMELY, OR UNINTERRUPTED. APTIBLE DOES NOT WARRANT THAT THE SERVICES WILL BE SECURE, EXCEPT AS EXPRESSLY DOCUMENTED. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. YOU UNDERSTAND THAT YOU USE THE SERVICES AT YOUR OWN DISCRETION AND RISK.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE APTIBLE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

15. LIMITATIONS OF LIABILITY

IN NO EVENT WILL THE APTIBLE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY APTIBLE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE APTIBLE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID BY YOU TO APTIBLE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

The foregoing limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s intellectual property rights by the other party, or indemnification obligations.

16. Support

We will provide technical support to you pursuant to our Support Policy. We reserve the right to revise this policy without notice at any time. The specific terms of a custom Service Level Agreement or enterprise support agreement will supersede the Support Policy, should you enter into such an agreement with us.

17. Security

You hereby agree to the terms of our Security Policy.

18. Governing Law

This Agreement is governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this Agreement, then, unless another location is expressly specified in this Agreement, you and Aptible agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute.

19. Dispute Resolution and Arbitration

A. Generally. In the interest of resolving disputes between you and Aptible in the most expedient and cost effective manner, you and Aptible agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND APTIBLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

B. Exceptions. Despite the provisions of Section 19(A), we both agree that nothing in Agreement will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

C. Arbitrator. Any arbitration between you and Aptible will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, ”AAA Rules“) of the American Arbitration Association (”AAA“), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Aptible.

D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (”Notice“). Aptible’s address for Notice is:

Aptible, Inc.
220 NW 8th Ave
Portland, OR 97209

The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (”Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Aptible may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Aptible must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Aptible will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Aptible in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

E. Fees. If you commence arbitration in accordance with this Agreement, Aptible will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Aptible for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the preceding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

F. No Class Actions. YOU AND APTIBLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Aptible agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

G. Modifications. If Aptible makes any future change to this arbitration provision (other than a change to Aptible’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Aptible’s address for Notice, in which case your account with Aptible will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.

H. Enforceability. If Section 19(F) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to this Agreement.

20. Notice to California Residents

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

21. General Terms

A. Notices. All notices to Aptible must be in writing and addressed to legal@aptible.com. Notice will be treated as given on receipt as verified by written automated receipt or by electronic log (as applicable).

You agree that Aptible may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the Aptible Services. By providing Aptible your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.

B. Assignment. You may not assign any part of this Agreement without our written consent. Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under this Agreement, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.

C. Force Majeure. Aptible shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

D. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

E. No Waiver. You agree that any delay or failure of Aptible to exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), for any reason, does not constitute a formal waiver of our rights and that those rights or remedies will still be available to us.

F. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

G. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless expressly stated.

H. Equitable Relief. Subject to Section 19 (Dispute Resolution and Arbitration), nothing in this Agreement will limit either party’s ability to seek equitable relief.

I. Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

J. Entire Agreement. This Agreement supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are hereby incorporated by this reference. After the Effective Date, Aptible may provide you with an updated URL in place of any URL in this Agreement.

K. Interpretation of Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: this Agreement, and the terms located at any URL.

22. Definitions

"Acceptable Use Policy” means the policy currently available at https://www.aptible.com/legal/acceptable-use, as it may be updated by us from time to time.

“Application” means software you run using the Services.

“Aptible Marks” or “Marks” mean any trademarks, service marks, service or trade names, logos, and other designations of Aptible and its affiliates that we may make available to you in connection with this Agreement.

“Aptible Site” means https://www.aptible.com, http://www.aptible.com, any subdomain owned or operated by Aptible, and any successor or related site designated by us.

“Content” means software, data, text, audio, video, images or other content.

“Dedicated Environment” means a dedicated Aptible environment running in a dedicated network for which you have a valid, signed Business Associate Agreement with Aptible and have applied the required security configurations and controls as specified in that agreement.

“End User” means any individual or entity that directly or indirectly through another user:

  1. Accesses or uses Your Content; or
  2. Otherwise accesses or uses the Services under your account.

The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Aptible account, rather than your account.

“Fees and Pricing Policy” means the policy currently available at https://www.aptible.com/legal/fees-and-pricing, as it may be updated by us from time to time.

“High Risk Activity” means any activity where the failure of a supporting computer system could lead to death, personal injury, or severe physical or environmental damage, such as the operation of nuclear facilities, aircraft navigation, or direct life support systems.

“Privacy Policy” means the policy currently available at https://www.aptible.com/legal/privacy, as it may be updated by us from time to time.

“Remedial Action” means our right under this Agreement to suspend your access or your End Users’ access to the Services, and to suspend or remove an Application, in the event that this Agreement is breached.

“Security Policy” means the policy currently available at https://www.aptible.com/legal/security, as it may be updated by us from time to time.

“Support Policy” means the policy currently available at https://www.aptible.com/legal/support, as it may be updated by us from time to time.

“Trademark Policy” means the policy currently available at https://www.aptible.com/legal/trademark, as it may be updated by us from time to time.

“Your Content” means Content you or any End User (a) runs on the Services, (b) causes to interface with the Services, or (c) uploads to the Services under your account or otherwise transfers, processes, uses, or stores in connection with your account.