- Third Party Sites. The Site may contain links to third-party Site. We do not monitor or control the linked Site, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Applause.
- Your Content. “Your Content” means any audio, video, text, images or other material You choose to display on this Site. With respect to Your Content, by displaying it, You grant Applause a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media. Your Content must be Your own and must not be infringing on any third party’s rights. Applause reserves the right to remove any of Your Content from this Site at any time, and for any reason, without notice.
- Site Restrictions. No User shall submit, upload to, distribute through or otherwise post to the Site (including any Interactive Feature) any material that: (a) is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense; (b) contains any advertising, promotional, solicitation or other commercial material, including the uniform resource locator (“URL”) of a User’s own Site, unless the Site in question relates directly to a project on the Site; notwithstanding the foregoing, Users may post the URL of a Site containing a portfolio of sample works or the User’s resumé; (c) contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use; (d) infringes any copyright, trademark or patent, incorporates any material that constitutes a trade secret of a third party, or violates any property rights, rights of privacy or publicity or any other rights of any third party; (e) contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material’s readers or others; or (f) contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment or to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Users may not further: (1) use any automated collection mechanism or any manual process to monitor or copy the web pages comprising the Site or the Site Content without the prior written permission of Applause; (2) contract employers or freelancers through the Site or using Site Content for the purpose of encouraging them not to use the Site or any other services offered by Applause; or (3) engage in personal attacks, negative or other unfair criticism or other forms of discourteous and unprofessional online conduct or practices.
- For Information Purposes Only. This Site is provided “as is,” with all faults, and Applause makes no express or implied representations or warranties, of any kind related to this Site or the materials contained on this Site. Additionally, nothing contained on this Site shall be construed as providing consult or advice to You. Applause may also make improvements and/or changes in the products and/or the programs described in this information at any time without notice. Applause shall have no liability for any errors or omissions in such information or data, including third party content, whether provided by Applause or others.
- NO LIABILITY. IN NO EVENT WILL APPLAUSE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR RELATED TO USE OF THE SITE, OR ON ANY OTHER LINKED OR THIRD PARTY Site, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, HOWEVER ARISING, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Digital Millennium Copyright Act. Applause complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). Any notice alleging that materials on this Site infringe intellectual property rights must include the following information: (a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) A description of the copyrighted work or other intellectual property that You claim has been infringed; (c) A description of the material that You claim is infringing and where it is located on the Site; (d) Your address, telephone number, and email address; (e) A statement by You that have a good faith belief that the use of the materials on the Site of which are complaining is not authorized by the copyright owner, its agent, or the law; and (f) A statement by that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. If You have any complaints or objections to material posted on the Site You may contact our Designated Agent at the following address: General Counsel, Applauselegal@applause.com 100 Pennsylvania Ave., Suite 500, Framingham, MA 01701 United States of America Telephone: 508.480.9999
- Governing Law/Venue. These Terms shall be governed by the laws of the State of Delaware, without regard to any of its conflict of laws’ provisions. Any action or proceeding relating to these Terms must be brought in a federal or state court in Wilmington, Delaware (provided, however, that nothing in these Terms shall prevent a party from seeking injunctive relief to enforce the terms of these Terms in any venue or jurisdiction as determined in such party’s sole discretion and convenience), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
II. Applause Acceptable Use Policy
- Your access and use of the Applause App Quality, Inc.’s Customer app, and/or Website and/or of any other online Applause offerings or platform (collectively herein, “Sites”) is subject to this Acceptable Use Policy. Capitalized terms have the meaning stated in the underlying agreement applicable to your role as customer, website user, and/or community member or tester (referred to herein as the “Agreement”). To the extent there are conflicts between this policy and the applicable Agreement, the terms of the Agreement shall take precedence.
- You shall use the Sites exclusively for authorized and legal purposes, and in compliance with all applicable laws, rules, regulations, and license restrictions. You shall not use the Applause Sites:
- to transmit any material that infringes the intellectual property rights or other rights of third parties;
- to transmit any material or content that is defamatory, offensive, inappropriate, pornographic, obscene or otherwise objectionable to any reasonable person;
- for any illegal, fraudulent, or abusive purpose, or in violation of any laws (including without limitation data, privacy, and export control laws).
- in connection with unsolicited or harassing notifications (commercial or otherwise), including unsolicited or unwanted SMS or emails;
- to receive, send, or otherwise process sensitive personal data such credit card and payment information, or Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, or other types of sensitive and highly-regulated data;
- to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense, or terrorism;
Additionally, You shall not attempt to bypass or break any security mechanism on any of the Applause Sites, or using the Applause Sites in any other manner that poses a material security or service risk to Applause or any of its other customers, including but not limited to:
- attempting to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity or performance of the Sites (including any mechanism used to restrict or control the functionality of the Sites), any third party use of the Sites, or any third party data contained therein (except to the extent such restrictions are prohibited by applicable law);
- conducting scans in order to find limitations, vulnerabilities, or evade filtering capabilities;
- launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Applause Sites or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Applause Sites.;
- sending altered, deceptive, or false source-identifying information, including “spoofing” or “phishing”;
- creating a false identity or forged email address, phone number, or otherwise attempting to create alternative users;
- using the Sites for purposes of benchmarking or other competitive purposes.
If you become aware of any violations of this Acceptable Use Policy, please contact us immediately at PrivacyDPO@applause.com. Subject to the terms of the underlying Agreement, without affecting any other remedies available to us, Applause may permanently or temporarily terminate or suspend a user’s account or access to the services without notice or liability if Applause determines that a user has violated this Acceptable Use Policy.
III. Professional Services Agreement
This Applause Professional Services Agreement (this “Agreement”) is a binding contract between you or the company you represent (“Customer,” “You,” or “Your”) and Applause App Quality, Inc. (“Applause,” “we,” or “us”). For clarity, the term “Applause” includes Applause and its employees, but specifically excludes any Applause community testers.
In consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Definitions. Capitalized terms shall be defined as set forth below, or elsewhere in this Agreement:
“Customer Materials” means any data or materials not provided by Applause that are included in any Services, such as technical information and functional specifications, user data, logos, photographs, compilations of facts, artwork, animations, video or audio files, or source materials for any of the foregoing.
- Scope. The services to be provided by Applause are described in each SOW attached hereto (the “Services”). This Agreement is non-exclusive and does not commit Customer to purchase any minimum quantity of Services.
- Term. The term of this Agreement will be one year from the effective date, unless terminated as provided herein. Thereafter, this Agreement will automatically renew for successive one (1) year terms, unless terminated as provided herein.
- Fees. Subject to the terms and conditions of this Agreement, Customer will pay Applause the fees specified (“Fees”) in each Statement of Work (“SOW”) as Applause’s sole and complete compensation for all Services rendered by Applause under this Agreement. No other Fees will be owed by Customer under this Agreement. Undisputed Fees shall be due thirty (30) days after receipt of Applause’s invoice. The parties agree to work with each other in good faith to resolve any payment dispute within thirty (30) days after receipt of notice of any such payment dispute.
- Warranty. Services shall be performed in a professional manner, consistent with industry standards.
- Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 5 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ANY EXPRESS IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS (INCLUDING THOSE BY OUR SUPPLIERS), INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES THAT THE SERVICES WILL BE FREE OF ERRORS. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
- Customer’s Confidential Information and Property. The parties agree that the exchange of Confidential Information under this Agreement shall be as defined in and governed by the terms and conditions of the parties’ signed non-disclosure agreement (NDA) dated ________ which is incorporated herein by reference. Irrespective of the foregoing and except as otherwise specified in a SOW, Applause may, without liability hereunder and for the purpose of testing only, provide Customer’s Confidential Information to its community Testers (“Testers”) which have entered into non-disclosure obligations with Applause. Customer may require, through Applause’s platform, that such Testers participating in the testing of Customer’s technology sign a non-disclosure agreement directly with Customer prior to such testing. All items on Customer premises are the property of Customer and may not be used or removed without prior approval. Any information furnished to or acquired by Applause hereunder or in contemplation hereof shall remain Customer’s property. All such information (and any copies thereof) shall be returned to Customer upon termination or expiration of this agreement, or upon Customer’s request. Unless such information was previously known to Applause free of any obligation to keep it confidential or has been or is subsequently made public by Customer, such information shall be held in trust and confidence by Applause as specified in such non-disclosure agreement, shall be used only in performing hereunder, and may be used for other purposes only upon such terms as may be agreed upon by the parties in writing.
- Restrictions on Use. Customer shall use the Services solely for Customer’s business purposes, in compliance with applicable law, and shall not: (i) sublicense, lease, or make the Services available to any unauthorized third party; (ii) send or store infringing, unlawful, defamatory or libelous material; (iii) send or store any malicious code; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (v) modify, copy or create derivative works based on the Services; (vi) reverse engineer the Services; (vii) access the Services for the purpose of building, selling, marketing or otherwise, a competitive product or service or copying its features or user interface; or (viii) remove the copyright, trademark, or any other proprietary rights or notices included within the Services and on and in the documentation and training materials.
- Work Product. Except for Applause’s pre-existing materials, software, technologies , methodologies and know-how (including Applause’s proprietary platform (the “Platform”) which is currently accessible at the URL’s “Applause.com” and “my.Applause.com”), or as otherwise specified in a SOW, to the extent that any items, in any medium, prepared or originated by or for Applause specifically and uniquely for Customer, at Customer’s request in connection with the Services, including work in progress, (“Work Product”) shall be the exclusive property of Customer and shall be deemed to be works for hire, and all rights, title, and interest therein, including without limitation copyrights, trade secrets, and other proprietary rights, shall vest upon creation solely in Customer. For the purpose of clarity and avoidance of doubt, Applause retains ownership of the Applause platform and all related intellectual property rights, while Customer shall own the specific feedback delivered by Applause to Customer in the performance of an SOW (“Feedback”). Such Feedback may be downloaded by Customer as a CSV file during the Term of the Agreement. To the extent they may not be works for hire, Applause assigns to Customer all rights, title, and interest in and to Work Product, and Applause hereby releases any claim that Applause has or may have in the future to Work Product. If Work Product includes items previously developed or copyrighted by Applause, Applause hereby grants to Customer, solely during the term that a SOW or Order Form remain in effect, a royalty-free license to use such Work Product for any lawful purpose.
- Independent Contractor. Applause hereby declares and agrees that:
(a) it is engaged in an independent business and will perform its obligations under this agreement as an independent contractor and not as the agent or employee of customer;
(b) Applause does not have the authority to act for Customer or to bind Customer in any respect whatsoever or to incur any debts or liabilities in the name of or on behalf of customer, and Applause will not hold itself out as possessing such authority;
(c) Applause will have exclusive control over the manner and means of performing the services, including the choice of place and time, and will use applause’s expertise and talents in performing the services;
(d) Applause will provide, at Applause’s own expense, a place of work and all equipment, tools, and other materials necessary to complete the SOW; however, to the extent necessary to facilitate performance of the services and for no other purpose, Customer may, in its discretion, make its equipment or facilities available to Applause at Applause’s request;
(e) if Applause uses Customer’s equipment or facilities, regardless of whether customer grants permission to Applause to do so, such equipment or facilities will be used only in the performance of this agreement;
(f) Applause shall not be eligible for, or be entitled to participate in, any customer benefit plan or program, including employee pension, profit sharing, health, or other fringe benefit plan.
(g) Applause is not entitled to receive from Customer unemployment or worker’s compensation insurance benefits;
(h) Applause is obligated to pay federal, state, and local income tax and self-employment tax on any monies paid to it pursuant to this agreement;
(i) Customer will not withhold FICA or state or federal income tax from any monies paid to Applause pursuant to this agreement; and
(j) Applause is the employer of all workers and assistants it provides, is the primary employer of same, and that Customer is not a joint employer for any purpose including, without limitation, the family and medical leave act.
- Applause Indemnification.
(a) Claims Related to Services. Provided that Customer complies with the procedures set forth in Section 11(e) and subject to Section 11(b), Applause will, at its expense and under its control (including selection of counsel), defend and/or settle any claim, suit or proceeding brought by a third party against Customer or its officers, directors, employees, agents and affiliates alleging that the Services, as provided by Applause, infringes any copyright, trademark, trade secret or patent issued as of the date of this Agreement. In addition, Applause will pay any judgment awarded against Customer or any settlement amount agreed to by Applause and, subject to Section 11(e), any authorized expenses incurred by Customer.
(b) Exclusions. Applause will have no obligation under Section 11(a) with respect to any claim of infringement arising out of or based upon (i) Customer’s modification of the Services or its combination or use with programs not supplied by Applause or its use in a manner not permitted by this Agreement, where such infringement is the result of such modification, combination or use; (ii) use of the Services that is not strictly in accordance with the terms of this Agreement; or, (iii) Customer Materials used with or incorporated in the Services.
(c) Injunction. If Customer’s use of the Services is or is likely to be enjoined, Applause may, without limiting its indemnity obligations hereunder, procure the right for Customer to continue to use the Services or modify the Services in a functionally equivalent manner so as to avoid such injunction. If the foregoing options are not available on commercially reasonable terms and conditions, Applause may require the return of any such Services and refund to Customer a prorated amount of prepaid fees for the Services actually paid by Customer for the unused portion of the then-current term.
(d) Claims Related to Customer Materials. Provided that Applause complies with the procedures set forth in Section 11(e), Customer will, at its expense, defend and/or settle any claim, suit or proceeding brought against Applause or its officers, directors, employees, agents and affiliates and arising out of or related to the Customer Materials (either alone or as incorporated into the Services). In addition, Customer will pay any judgment awarded against Applause or any settlement amount agreed to by Customer and, subject to Section 11(e), any authorized expenses incurred by Applause.
(e) Procedure. If one party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will in order to qualify for Indemnification under this Section, within 15 days of receipt of such notice, give the Indemnitor written notice pursuant to the notice provision set forth in Section 22 of this Agreement, of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.
(f) Exclusive Remedies. The indemnity and other remedies set forth in this Section shall be the exclusive remedies of the parties with respect to any actual or alleged infringement of any intellectual property rights.
- INSURANCE. APPLAUSE SHALL SECURE BEFORE COMMENCING, AND MAINTAIN DURING THE PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT: (1) WORKERS’ COMPENSATION INSURANCE AS PRESCRIBED BY THE LAW OF THE STATE IN WHICH THE WORK IS PERFORMED; (2) COMMERCIAL GENERAL LIABILITY (“CGL”) INSURANCE, WITH LIMITS OF AT LEAST $1,000,000.00 COMBINED SINGLE LIMIT FOR BODILY INJURY AND PROPERTY DAMAGE FOR EACH OCCURRENCE; AND (3) PROFESSIONAL LIABILITY OR ERRORS AND OMISSIONS INSURANCE IN THE AMOUNT OF AT LEAST $1,000,000.00 FOR EACH OCCURRENCE.
- LIMITATION OF LIABILITY.
(a) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS OF THIS SECTION 13(A) DO NOT APPLY TO EACH PARTY’S OBLIGATIONS PURSUANT TO SECTION 7, SECTION 11, OR TO THE MISAPPROPRIATION OR UNAUTHORIZED USE OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE PLATFORM). SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
(b) IN NO EVENT SHALL APPLAUSE’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, IN CONNECTION WITH ANY SERVICES EXCEED THE AMOUNT PAID UNDER THE APPLICABLE SOW WITH RESPECT TO SUCH SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS OF THIS SECTION 13(b) DO NOT APPLY TO OUR OBLIGATIONS PURSUANT TO SECTIONS 7 or 11.
- Compliance with Laws. Applause shall, at its expense, obtain all permits and licenses, pay all fees, and comply with all federal, state and local laws, ordinances, rules, regulations, and orders (“Laws”) applicable to Applause’s performance under this Agreement. Applause hereby certifies that to its knowledge, it complies with all such Laws. Customer shall, at its expense, obtain all permits and licenses, and comply with all Laws applicable to its performance under this Agreement and shall be responsible for verifying whether its applications or website comply with such Laws, including those applicable to its industry. Customer hereby certifies that to its knowledge it complies with all such Laws.
(a) Termination for Cause. If either party breaches this Agreement or an applicable SOW (as such, the “Breaching Party”) and fails to cure such breach within thirty (30) days (“Cure Period”) of receiving notice of the breach from the other party (as such, the “Non-breaching Party”), then the Non-breaching Party may, at its option, terminate this Agreement, or the applicable SOW, by providing written notice of termination to the Breaching Party. The foregoing Cure Period does not apply to Customer’s breach of Section 4. In the event of an uncured breach by Customer under this section, Customer shall pay for all amounts due and owing for the remainder of the term of the applicable SOW.
(b) Termination by Applause. Subject to applicable law, Applause may terminate any active Statements of Work if: (i) a receiver is appointed for you or your property; (ii) you make an assignment for the benefit of your creditors; (iii) any proceedings are commenced by, for or against you under any bankruptcy, insolvency or debtor’s relief law; or (iv) you commence steps to liquidate or dissolve. Our obligation to provide further services on a project shall cease upon termination of the applicable SOW. Termination of this Agreement shall also terminate all then current Statements of Work, unless the parties otherwise agree.
(c) Effect of Bankruptcy. In the event that Customer become the subject of any voluntary or involuntary proceeding bankruptcy, liquidation, dissolution, receivership or attachment or make a general assignment for the benefit of creditors, amounts that have been paid to us hereby deemed earned upon receipt and are our sole property, irrespective of whether goods or services have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by you to us under this Agreement or any other agreement between you and us.
- Dispute Resolution. Pending the resolution of a dispute, the parties expressly agree that performance of their obligations under this Agreement shall not be delayed or suspended.
(a) Force Majeure. Neither party shall be liable for failure to perform (other than obligations to make payments when due) solely caused by unforeseeable Force Majeure circumstances beyond their reasonable control (“Force Majeure”). The party experiencing the Force Majeure circumstances shall notify the other party of the delay as soon as reasonably possible, and shall cooperate in minimizing the impact of such Force Majeure. If such circumstances occur for an extended period in excess of ten (10) business days, the injured party may elect to terminate this Agreement and/or any Order in whole or in part upon written notice to the other party.
(b) Remedies. Each party acknowledges and agrees that any breach of Section 7 or 11 may cause irreparable harm to the other party for which damages would not be an adequate remedy; therefore, the non-breaching party shall be entitled to seek injunctive relief with respect thereto in addition to any other remedies.
(c) Export Control and Economic Sanctions. Customer agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause Applause to violate the same. Without limiting the foregoing, Customer covenants that Customer shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Applause under this Agreement to or for use in or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria), entity, or person subject to restrictions under the laws or regulations of any jurisdiction, including without limitation, the United States, without providing advance notification to Applause and obtaining prior authorization from the relevant government authorities as required by those laws and regulations. Prior to any such export event, Customer and Applause shall execute a written agreement to govern the use, control, and transfer of the applicable software and data. Customer hereby indemnifies and holds harmless, to the fullest extent permitted by law, Applause and our assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorney’s fees, that may arise as a result of Customer and Customer’s agents, officers, directors or employees breach of this provision.
(d) Records and Audits. Applause shall maintain complete and accurate records of all charges incurred by Customer under this Agreement, in accordance with generally accepted accounting principles, for a period of twenty-four months from the date of termination, cancellation, or expiration of this Agreement. Customer shall have the right, not more often than once per each calendar year, to inspect Applause’s records upon reasonable notice of at least ten (10) business days and to retain copies thereof.
(e) Assignment and Delegation. Neither Party may assign its interest in this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Any attempted assignment by either party shall be void. Notwithstanding the foregoing, Applause may transfer and/or assign its rights and obligations under this Agreement pursuant to a merger or change of control event, upon notice to Customer within a reasonable period of time following such event, provided that such assignee has the ability to and does assume the rights and obligations of Applause hereunder. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of its assets or any other transaction in which 50% or more of its voting securities are transferred. No other delegation of the performance of Services or other obligations of Applause shall be made without written permission of Customer, including the hiring of subcontractors to perform any part of Services. Irrespective of the foregoing, Customer acknowledges that Applause utilizes independent Applause community testers (“Testers”) to assist Applause in the performance of the Services hereunder and Customer hereby grants Applause permission to utilize such Testers in the performance of its Services hereunder.
(f) Notices. Any notices required under this Agreement shall be in writing, sent to the addresses of the parties stated below, and deemed effective: (i) upon receipt if delivered in person, by courier, or electronic facsimile (fax); or (ii) three business days after certified or registered mailing (postage prepaid and return receipt requested).
(g) Advertising; Publicity. Neither party shall use the other party’s names, marks, codes, drawings or specifications in any advertising, promotional efforts or any publicity of any kind without the prior written permission of such other party. Irrespective of the foregoing, Applause may list Customer as one of its customers on its customer list.
(h) Waivers. The failure of either party to exercise any right shall not be construed to be a waiver unless agreed upon in writing. A waiver in any one instance shall not constitute an amendment to this Agreement or indicate any continued waiver of such right(s) on any other occasion.
(i) Modifications or Amendments. No modifications or amendments shall be made to this Agreement unless in writing and signed by the parties.
(j) Survival. The provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination or cancellation of this Agreement.
(k) Choice of Law and Venue. This Agreement shall be governed by the laws of the State of Delaware, without regard to any of its conflict of laws’ provisions. Any action or proceeding relating to this Agreement must be brought in a federal or state court in Wilmington, Delaware (provided, however, that nothing in this Agreement shall prevent a party from seeking injunctive relief to enforce the terms of this Agreement in any venue or jurisdiction as determined in such party’s sole discretion and convenience), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
(l) Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument
(m) Non-Solicitation. Applause and Customer mutually agree not to solicit (other than by or resulting from general hiring advertisements), any employee or subcontractor of the other (including, without limitation, any Tester which performs Services on behalf of Applause for Customer hereunder) on behalf of itself or another Customer during the term of this Agreement and for a period of one year thereafter.
(n) Entire Agreement. This Agreement, together with any Exhibits, Statements of Work, and executed amendments, shall constitute the entire agreement between the parties with respect to the Services to be provided. This Agreement supersedes all prior oral or written communications or agreements of the parties with respect to the Services. The terms of this Agreement will govern all purchase orders or similar ordering documents submitted by Applause, and preprinted or form terms in any purchase order or similar ordering document will have no legal effect on the parties.
This Applause Platform Agreement (this “Agreement“) is a binding contract between you or the company you represent (“Customer,” “You,” or “Your”) and Applause App Quality, Inc. (“Applause,” “we,” or “us”). This Agreement governs your access to and use of the Applause Platform (“the Platform”). This Agreement incorporates by reference the terms of Applause’s Acceptable Use Policy found at https://www.applause.com/terms-of-use. PLEASE READ CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. IF YOU DO NOT AGREE TO THESE TERMS, YOU CANNOT ACCESS THIS PRODUCT. BY CLICKING “I AGREE” AFTER READING THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS.
“Applause IP” means the Platform and all intellectual property provided to the Customer in connection with the foregoing. Applause IP includes any information, data, or other content derived from Applause’s monitoring of Customer’s access to or use of the Platform, but does not include Customer Data.
“the Platform” means the services provided by Applause under this Agreement that are detailed on Applause’s website available at “Applause.com” and my.Applause.com”.
“Authorized User” means Customer and its employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Platform has been purchased hereunder.
“Collected Data” means data and information collected by Applause from or through Customer Applications in the provision of the Platform.
“Customer Application” means Customer’s developed software applications identified in an SOW.
“Customer Content” means information, data, and other content, submitted, uploaded or otherwise transmitted by Customer or any other Authorized User through the Platform.
“Documentation” means Applause’s online user guides relating to the Platform either electronically or in hard copy form/end user documentation, available at support.applause.com and help.utest.com.
“Intellectual Property Rights” or “IPR” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, the Platform marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Mobile System Operator” means any third party that manages the distribution of applications for a specific mobile operating system.
“Subscription Term” means the period where You are authorized to access the Platform per an SOW.
- Access and Use.
(a) Access. Subject to Your compliance with the Agreement and SOW, Applause grants You a non-exclusive, non-transferable, non-sublicensable right solely to have Your Authorized Users access the features and functions of the Platform per an SOW solely for Your internal business purposes and solely for the Subscription Term. You are responsible for your Authorized Users’ acts and omissions. You will notify Applause immediately of any unauthorized use or any suspected breach of security related to the Platform.
(b) Documentation. Subject to this Agreement, Applause hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Subscription Term solely for your internal business purposes in connection with use of the Platform.
(c) Use Restrictions. You and your Authorized Users are not permitted to use the Platform, or Documentation for any purposes beyond the scope granted herein. You shall not, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform, or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation except as expressly permitted herein; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform; (iv) remove any proprietary notices from the Platform or Documentation; or (v) use the Platform or Documentation for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or in violation of law, regulation, or rule.
(d) Limitations on Communications. Except for communications between Customer and Testers (“Testers” are contractors of Applause who perform testing services) regarding projects for which the Testers are providing testing services to You, You are prohibited from making direct contact or engaging in any transaction, including commercial transactions, with other Users, whether through the Platform or otherwise. You agree not to post Your email address, phone number, or any other method of contact outside of the Platform or give any of the foregoing information to another User. Testers and Customers working together on a project shall be provided with the necessary contact information.
(d) Aggregated Statistics. Applause may monitor Customer’s use of the Platform and collect and compile data and information in an aggregated and anonymized manner, including statistical and performance information related to the operation of the Platform (“Aggregated Statistics”). All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, solely belong to Applause. You acknowledge that Applause may compile Aggregated Statistics based on Customer Data input into the Platform. You agree that Applause may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent permitted under applicable law provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(e) Reservation of Rights & Ownership. Except as expressly set forth in this Agreement, Applause and its licensors retain all right, title, and interest in and to the Platform, and all related Applause IP. Applause reserves all rights not expressly granted to Customer under this Agreement. Customer and its licensors retain all right, title, and interest in and to the Customer Application (other than any portion of the Platform contained within the Customer Application (e.g., the SDK)), and all related IPR. This Agreement is not a sale and does not convey to Customer any rights of ownership in the Platform, Applause offerings or services or IPR. The Applause name, logo, and the Platform names are trademarks of Applause or its suppliers, and no right or license is granted to use them. Your will not accrue residual rights to the Platform, including any rights to the IPR.
(f) Suspension. Applause may temporarily suspend Your access to the Platform if: (i) Applause reasonably determines that (A) there is a threat or attack on any of the Applause IP; (B) Customer’s or any other Authorized User’s use of the Applause IP disrupts or poses a security risk to the Applause IP or to any other customer or vendor of Applause; (C) Customer or any other Authorized User is using the Applause IP for fraudulent or illegal activities; (D) subject to applicable law, Customer 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; or (E) Applause’s provision of the Platform is prohibited by applicable law; (ii) any Applause vendor has suspended or terminated Applause’s access to or use of any third-party services or the Platform required to enable Customer to access the Platform; or (iii) for non-payment under an invoice (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Applause shall use commercially reasonable efforts to provide notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following Service Suspension.
- Customer Responsibilities & Customer Content.
(a) Customer Application. Customer is solely responsible for its Customer Applications and all costs associated with its development. Without limiting the foregoing: Customer: (i) may need to submit Customer Applications to a Mobile System Operator for approval prior to distribution and Applause does not guarantee acceptance of the Customer Application; (ii) will bear sole responsibility for the Customer Application support; (iii) will require any end user of the Customer Application to agree to terms with Customer at least as protective of Applause and the Platform as this Agreement; (iv) will ensure that Customer Application’s end user provides all necessary consents for Applause to collect the Collected Data, and (v) will follow applicable regulations promulgated by each applicable mobile system operator. Applause reserves the right to reject or suspend use of the Platform due to a Customer Application.
(b) Rights. Customer will ensure the legality and appropriateness of the Customer Applications and the Customer Content and that neither infringes the intellectual property rights, any right of right of privacy or publicity (of any third party) or are defamatory. Applause reserves the right to remove all Customer Content that breaches Customer’s obligations under this Section.
(c) License to Applause. Customer Content will be and remain Customer’s property. Customer hereby grants to Applause a limited, royalty-free, license during the Subscription Term to use, copy, display, disclose, modify and distribute the Customer Content solely for the purpose of providing the Platform.
(d) Sensitive Data. Customer agrees that the amount and type of Collected Data is determined by Customer through and Applause cannot control the data it collects from or through the Customer Application. Customer will not submit: (i) any personally identifiable information, except as necessary for the establishment of an account for an Authorized User; (ii) any protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). Customer agrees that Applause is not acting as a Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Platform is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended. Applause has no liability under this Agreement for Sensitive Data.
(f) Modifications. Applause reserves the right to modify the Platform at any time without liability. In the event that Applause adds additional functionality to any the Platform, Applause may condition the implementation of such modifications on Customer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the prior version, without additional fees.
(h) Account Use. You are liable for all uses of the Platform and Documentation whether such access is permitted by or in violation of this Agreement. You are responsible for (i) keeping your passwords and access credentials associated with the Platform confidential; and (ii) all acts and omissions of Authorized Users. Any act or omission by an Authorized User that would constitute a breach of this Agreement will be deemed a breach of this Agreement.
(i) Customer Data. You grant Applause a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as necessary for Applause to provide the Platform to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data will not violate any policy or terms of this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(h) Third-Party Platform. The Services may permit access to a third party platform. Such third party platforms are subject to their own terms and conditions, for acceptance within the Platform.
(i) Fees and Payment. Customer will pay Applause the fees stated in the SOW net 30 days of invoice, unless otherwise agreed. All payment obligations are non-cancelable and nonrefundable. All Fees will be paid in U.S. dollars and exclude applicable sales, use, and other taxes. Unless otherwise agreed, Applause reserves the right to increase the fees upon renewal of each Subscription Term. If payments under this Agreement are subject to sales and use taxes in any jurisdiction and Customer has not paid to Applause the sales tax specified in any invoice, Customer will be responsible for the payment of such taxes and any related penalties or interest to the relevant tax authority. Customer will indemnify Applause for any liability or expense Applause may incur in connection with such sales and use taxes. Upon Applause’s request, Customer will provide Applause with receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes.
- Confidential Information. Each party agrees that any non-public data, information and other materials regarding the products, services or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided to the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary shall be deemed the “Confidential Information” of the other Party. Without limiting the foregoing, the Platform, any performance data, benchmark results, and technical information relating thereto, Applause’s pricing information shall be deemed the Confidential Information of Applause. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or (iv) is approved for release by written authorization of the Disclosing Party. Each party (the “Receiving Party”) agrees to keep the Confidential Information of the other party (the “Disclosing Party”) in confidence and not to use such Confidential Information except in performing hereunder. Applause may, without liability hereunder and for the purpose of testing only, provide your Company’s confidential information to Testers which have entered into non-disclosure agreements with Applause.
- Intellectual Property Ownership; Feedback.
(a) As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Platform and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. Applause shall retain all right, title and interest in and to its pre-existing materials, software, technologies, methodologies, and know-how, including but not limited to the Platform. If You or Your Authorized Users send or transmit any communications to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform, including without limitation, new features or functionality, or any comments, questions, suggestions, or the like (“Feedback“), which we may use, and will treat as non-confidential. You assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, or other intellectual property rights contained in the Feedback.
- Term and Termination.
(a) Term. This Agreement will continue to apply as long as the SOW is in effect, unless terminated by either party as set forth herein (the “Term”).
(b). Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter: (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof. Customer cannot terminate at its convenience.
(c) Termination by Applause. Applause may at any time terminate this Agreement if: (i) it is required to do so by law; (ii) the provision of the Platform to Customer by Applause is, in Applause’s opinion, no longer commercially viable; or (iii) Applause has elected to discontinue the Platform.
(d) Effect of Termination. Upon termination, Customer shall immediately discontinue use of the Applause IP. No termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such termination. Termination of Customer’s account includes: (i) removal of access to all offerings within the Platform; (ii) deletion of Customer’s password and all related information; and (iii) barring further use of the Platform. Upon expiration or termination, Customer will promptly discontinue use of the Platform. Sections titled “Customer’s Responsibilities,” “Term and Termination”, “Ownership,” “Limitation of Liability,” “Indemnification,” “Confidential Information”, and “General”, shall survive termination.
- Limited Warranty and Warranty Disclaimer.
(a) Limited Warranty. Applause warrants that the Platform shall be provided in accordance with industry standards and that the Platform will conform to Applause’s then current Documentation in all material respects under normal use and circumstances. If Customer notifies Applause of a breach of warranty, Applause will at its option, repair, or replace the ACA. This is Customer’s sole and exclusive remedy for any breach of warranty.
(b) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION OR AN ORDER FORM AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE THE PLATFORM IS PROVIDED “AS IS,” AND APPLAUSE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE PLATFORM. APPLAUSE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. APPLAUSE DOES NOT GUARANTY THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM APPLAUSE, AN AFFILIATE OF APPLAUSE OR THROUGH THE WEBSITE OR WEBSITE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
- LIMITATION OF LIABILITY.
(a) NO INDIRECT DAMAGES. NEITHER APPLAUSE NOR ITS AFFILIATES WILL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, OR ANY OTHER PLATFORM OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF APPLAUSE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. APPLAUSE WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE THE PLATFORM.
(b) DIRECT DAMAGES.THE TOTAL CUMULATIVE LIABILITY OF APPLAUSE ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, OR CONTENT PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO APPLAUSE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT APPLAUSE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT APPLAUSE’ SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. CUSTOMERS ARE FULLY LIABLE TO APPLAUSE FOR ANY MISAPPROPRIATION OR UNAUTHORIZED USE OF APPLAUSE’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE APPLAUSE PLATFORM). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. In no event shall Applause be liable for any damages arising out of the penetration tests or simulated attacks performed by Applause security experts and community as part as a security and vulnerability test cycle.
(a) Applause Indemnification. Provided that Customer complies with the procedures set forth herein, Applause will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Platform infringes the intellectual property rights of such third party. Applause will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Platform becomes, or in Applause’s sole opinion is likely to become, the subject of an infringement claim, Applause may, at its option and expense, do one of the following: (i) procure for Customer the right to continue use of the Platform, (ii) modify the Platform so that it becomes non-infringing, or (iii) refund to Customer any fees prepaid by Customer under the SOW for such the Platform, prorated for the amount of time remaining in the applicable term, and terminate the applicable SOW by written notice to Customer. Notwithstanding the foregoing, Applause will have no obligation under this Section or otherwise with respect to any infringement claim based upon (1) any use of the Platform not in accordance with the terms of this Agreement; (2) any use of the Platform in combination with other the Platform, equipment, software, content, or data not provided by Applause; or (3) any modification of the Platform by any person other than Applause or its authorized agents (collectively, the “Excluded Claims”). This Section states Applause’ entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
(b) Indemnification by Customer. Provided that Applause complies with the applicable procedures set forth herein, Customer will defend at its own expense any action against Applause brought by a third party to the extent that the action is based upon any Customer Application. Customer will pay those costs and damages finally awarded against Applause in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
(c) Procedure. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will, within 15 days of receipt of such notice, give the Indemnitor written notice of such claim or allegation stating the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.
- Export Regulation & Economic Sanction.
Your use of Applause’s Platform, and your utilization of Applause’s Platform are subject to export controls administered by the United States. Customer agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause Applause to violate the same. Without limiting the foregoing, Customer covenants that Customer shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of the Platform, software, or technology (including the Customer App derived from or based on such technology) received from Applause under this Agreement to or for use in or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria), entity, or person subject to restrictions under the laws or regulations of any jurisdiction, including without limitation, the U.S., without providing advance notification to Applause and obtaining prior authorization from the relevant government authorities as required by law and regulation.
(a) Governing Law and Jurisdiction. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from this Agreement must be brought in the state or federal courts located in Middlesex County, Massachusetts. Each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action.
(b) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
(c) Interpretation, Headings, Advice of Counsel, and Drafting. Headings used in this Agreement are provided for convenience only, and will not in affect the meaning or interpretation of each section. Parties acknowledge they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and that its terms will be interpreted without any bias against one Party as drafter.
(d) Notices. All notices required will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. Either Party may change its address by giving notice of the new address to the other Party.
(e) Force Majeure. Applause shall not be liable for delay or non-performance of its obligations hereunder if the cause of delay or non-performance is an event which is unforeseeable, beyond its control, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of government, flood, fire, earthquakes, a pandemic, civil unrest, acts of terror, strikes, telecommunications, Internet or hosting facility failures or delays involving hardware, software or power systems not within Applause’s possession or reasonable control, and denial of the Platform attacks (each a “Force Majeure Event”). Applause shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof), it being understood that a Force Majeure Event shall not excuse Customer’s obligation to pay invoices due in accordance with its provisions. Applause shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch.
(f) Integration. This Agreement and any SOW, and schedules constitute the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of any conflict between the terms of this Agreement and the terms of any SOW or schedules, this Agreement will govern unless the SOW or schedule refers to the provision of this Agreement over which it will prevail.
(g) Update to Agreement. The current version of this Agreement is set forth above. Applause may from time to time update or create new versions of this Agreement.
(h) Assignment. This Agreement and any rights granted to Customer hereunder, are non-transferable, non-exclusive, non-assignable, limited and personal to Customer. Neither Party may assign its interest in this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Applause may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to Customer or Customer’s consent. “Change of control” means consolidation, or any sale of all or substantially all of Applause’s assets or any other transaction in which more than 50% of its voting securities are transferred. This Agreement will inure to the benefit of, and bind the Party’s successors and permitted assigns. Unless otherwise agreed, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement.
(i) Publicity. Unless otherwise agreed, Applause may refer to Customer as an Applause customer on Applause’s website and in sales presentations, and may use Customer’s name and logo for such purposes. Neither party will issue a press release announcing its relationship, without the other party’s prior approval.
(j) Remedies. Except as otherwise expressly specified in this Agreement, the rights and remedies provided in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity. Customer agrees that any actual or threatened breach of any confidentiality obligations or license restrictions will constitute irreparable harm for which monetary damages would be an inadequate remedy, and that in such event Applause will be entitled to obtain immediate injunctive relief.
(k) Severability. The invalidity, illegality, or unenforceability of any provision does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.