A8 Terms of Service
The Legal Stuff
Effective Date: January 20th, 2022
You can access and interact with our Platform in many ways, including from a computer or mobile device. This Policy applies regardless of how you access or interact with our Platform. Depending on how you interact with our Platform, there may be some cases where we need to provide you with additional information about how we collect, use, protect, or disclose your Personal Data and/or what options you have regarding our collection, use or disclosure of your Personal Data. We may provide this additional information through notices on our Websites or Services and/or via direct communications with you. If we do this, unless we tell you otherwise, the additional information will apply in addition to what is described in this Policy.
Please read this Policy carefully. If you do not want us to collect, use, or disclose your Personal Data in the ways described in this Policy, please do not use, access, or otherwise interact with our Platform, provide us with your Personal Data, or authorize any third party to make your Personal Data available to us. By using or interacting with our Platform, you acknowledge that you understand that we may use your Personal Data as described in this Policy. Please note, as described in this Policy, we may receive your Personal Data from third parties that have not expressly told you that they will provide your Personal Data to us. If you have any questions about how we collect, use, protect, or disclose your Personal Data in connection with our Platform, please contact us by email at firstname.lastname@example.org.
When we refer to “Personal Data” in this Policy, we mean information that identifies, relates to, describes, or is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, to a specific person. This might be information that identifies someone, such as their name, or it may be information that identifies someone only when combined with other information available to us, such a person’s activity on our Websites when associated with their username. Please note, except as provided under applicable laws, Personal Data does not include information that is publicly available through government records or information that has been deidentified or aggregated in a way that it cannot be used to identify a specific individual.
Personal Data and Other Information We Process on Behalf of Others
Among other things, our customers are able to collect, use, store, disclose, and otherwise process Personal Data through their use of our Services. In providing our Services to our customers, we act as a service provider to those customers. As a service provider, we do not control any Personal Data that we process on behalf of our customers. Rather, our customers determine and control what Personal Data is processed through or in connection with their use of our Services, and we are contractually required to provide our Services in accordance with our customers’ instructions. Our Services are business-to-business applications and tools that are not intended for personal use. Our Services are only available for use by individuals who are authorized users of a particular customer that has entered into an agreement with us for the use of our Services. Our customers and their authorized users are only permitted to use our Services in accordance with their agreements with us to process business-related information, which could include Personal Data collected by our customers or received from third parties.
Our customers use our Services may result in the processing of Personal Data about individuals, including their employees, contractors, customers, prospects, and others. All Personal Data processed through or in connection with our customers’ use of our Services are subject to our customers’ respective privacy policies. For clarity, we are not responsible for the privacy and security practices of our customers and this Policy does not apply to the Personal Data we collect, use, store, disclose, or otherwise process on behalf of our customers.
Personal Data and Other Information We Process for Our Own Purposes
Personal Data and Other Information We Collect
Our primary goals in collecting Personal Data are to provide and improve our Platform, including, without limitation, operating and improving our Websites and Services, conducting our Operations, and communicating with people about our Platform.
Categories of Personal Data We Collect
Depending on how you access, use, or otherwise interact with our Platform, we, or third parties acting on our behalf, may collect the following categories of Personal Data about you:
Identifiers and contact information, such as your name, alias, email address, telephone number, postal address, physical address, unique personal identifier, government-issued identification number, online identifier, IP address, and other similar information;
Account information, such as your username, password, the customer your account is associated with, account activity, and other similar information;
Communication information, such as information submitted through forms available on our Websites and Services, information contained in voice mails, chats, and emails, and other similar information;
Internet and other similar network activity information, such as your browsing history, search history, interactions with our Platform and online advertisements, and other similar information;
Location information, such as the general geographic location you are located when you access our Websites or Services and other similar information; and Other information you provide to us.
Other Information We Collect
Depending on how you access, use, or otherwise interact with our Platform, the Usage Data that we, or third parties acting on our behalf, may collect may include:
Device information, such as the IP address, general geographic location, operating system, browser type, language preferences, mobile phone number, device identifier, and other similar information associated with a device used to access, use, or otherwise interact with our Platform; Information about online interactions with our Platform, such as links that are clicked, pages or screens that are viewed, access and session times, interactions with emails we send, and other similar information associated with a device used to access, use, or otherwise interact with our Platform; Information about internet and network activity, such as websites visited, search engine results, and other similar information associated with a device used to access, use, or otherwise interact with our Platform; and Any other information that a browser or device automatically sends whenever connected to a website or an online application.
How We Collect Personal Data
A large portion of the Personal Data we, or third parties acting on our behalf, collect is collected directly from our users and others who provide their Personal Data to us directly. In some cases, we, or third parties acting on our behalf, may collect Personal Data from third parties in the ways described in this Policy.
Directly from You
When you access, use, or otherwise interact with our Platform, or otherwise engage with us in connection with our Platform, such as requesting more information about us or communicating with us, we may ask you to provide certain Personal Data. Some of the Personal Data we request with respect to certain features of our Platform may not be required, however, we will let you know if specific Personal Data is required to use those features. If you do not provide us with the Personal Data required to use a certain feature on our Platform, you will not be able to use that feature, especially those features where we are legally required to collect the Personal Data and those where it is impossible for the feature to operate without the required Personal Data.
From Third Parties
We, or third parties acting on our behalf, may collect Personal Data about you from third party services and sources, such as online and offline sources, entities affiliated with us, customer relationship management platforms, social media platforms, advertising networks, and other public or commercial sources (collectively, “Third Party Services”). When you access, use, or otherwise interact with our Platform through or in connection with certain Third Party Services, associate your access, use, or other interaction with our Platform with Third Party Services, or share content via Third Party Services, you acknowledge that you are authorizing us to collect, use, store, and disclose any Personal Data we receive from those Third Party Services about you. In some cases, you may be able to revoke our access to your Personal Data and other content and information we receive from a Third Party Service by changing the appropriate settings for your account with that Third Party Service. Please note, revoking our access to your Personal Data from a particular Third Party Service may prevent or restrict our ability to provide you with certain features, functionalities, and portions of our Platform.
We, or third parties acting on our behalf, may receive Personal Data about you from third parties that provide services to us through or in connection with the operation of our Platform (“Operational Service Providers”). Operational Service Providers may include, without limitation, hosting providers and payment processing providers.
We, or third parties acting on our behalf, may receive Personal Data about you from our affiliates (our “Affiliates”). This Personal Data may include, without limitation, information related to your access to, use, or other interaction with our Affiliates and/or the services, products, and other things they provide.
We, or third parties acting on our behalf, may also receive Personal Data about you from other third parties, such as our customers, others users of our Platform, and those that refer you to us or our Platform.
Please note, we may combine the Personal Data and other content and information we receive about you from multiple sources, including, without limitation, Personal Data we collect directly from you and one or more third parties.
How We Collect Usage Data
We, and third parties acting on our behalf, collect Usage Data in a variety of ways. Some Usage Data, such as the IP address of a device attempting to access, use, or otherwise interact with our Platform, is necessary for us to make certain portions of our Platform available. Other Usage Data, such as information about what features of our Platform are popular, help us to improve and advertise our Platform. The primary ways we collect Usage Data in connection with our Platform are through:
The systems we use to make the online portions of our Platform available to you. The systems automatically record certain information that your browser or device sends whenever you visit a website or utilize an online application, as well as information about how long your device is connected to our Platform and the activities that device engages in when you access, use, or otherwise interact with online portions of our Platform.
Other tracking technologies, such as web beacons, clear gifs, and pixel tags. These technologies may be used on or in connection with online portions of our Platform, including, without limitation, in emails we send. We may use these technologies to deliver cookies, count visits, understand usage, and observe data on email delivery, open rates, click rates, bounces, unsubscribes, and other information.
Third party analytics tools, such as:
Please note, we have not yet developed a response to browser “Do Not Track” signals and do not change any of our data collection practices when we receive such signals. We will continue to evaluate potential responses to “Do Not Track” signals in light of industry developments or legal changes.
How We Use Personal Data
We use Personal Data for various purposes to operate and improve our Platform and to conduct our business operations. The primary purposes for which we use Personal Data are:
Marketing Purposes – we may use the Personal Data we, or third parties acting on our behalf, collect for marketing purposes, including notifying you of special promotions, opportunities, offers, and events via e-mail and other means, all subject to our compliance with applicable laws (“Marketing Purposes”). We may also link Personal Data (including your name, mobile phone number, and email address), with other information (including, without limitation, Usage Data) and use such linked information for Marketing Purposes. Our Marketing Purposes may include using Personal Data and Usage Data collected through cookies and other tracking technologies to facilitate the delivery of targeted ads, promotions, and offers to you on and off our Platform. If you do not want us to use your Personal Data for Marketing Purposes, you may opt-out in accordance with the “Managing Your Personal Data” section below.
Non-Marketing Purposes – we may use the Personal Data we, or third parties acting on our behalf, collect for non-marketing purposes, including: (1) operating and improving our Platform; (2) validating your identity; (3) carrying out our obligations and enforcing our rights arising from any contracts we have entered into, including, without limitation, any contracts between you and us and any contracts between us and our customer on whose behalf you access, use, or otherwise interact with our Services; (4) sending you emails to provide you with alerts and updates about your engagement with our Platform; (5) conducting statistical or demographic analysis; (6) complying with legal and regulatory requirements; (7) customizing your experience with our Platform; (8) protecting and defending ourselves against legal actions or claims; (9) preventing fraud; (10) cooperating with law enforcement or other governmental agencies for purposes of investigations, national security, public safety or matters of public importance where we believe that disclosure of Personal Data is necessary or appropriate to protect the public interest; (11) those you authorize or instruct us to do; and (12) other business purposes permitted under applicable law (collectively, our “Business Purposes”).
We will not collect additional categories of Personal Data or use the Personal Data we, or third parties acting on our behalf, collect in connection with our Platform for materially different, unrelated, or incompatible purposes without providing you notice.
Please note, we may use and disclose aggregated, anonymized, or de-identified information collected in connection with our Platform and other information that does not identify any individual (“Anonymized Data”) for any lawful purposes, which may include, without limitation, purposes not described in this Policy. Except as otherwise required under applicable laws, our use and disclosure of such Anonymized Data is not subject to this Policy.
Sharing Personal Data with Third Parties
We may share Personal Data we, or third parties acting on our behalf, collect in connection with our Platform from and about you and your relationship with us with certain third parties. Doing so allows us to operate our Platform and carry out our Marketing Purposes and Business Purposes. The third parties that we may share Personal Data with include:
Our Operational Service Providers in connection with the services they provide to us, including, without limitation, marketing, data hosting, payment processing, and fraud protection and prevention. We require these Operational Service Providers to exercise reasonable care to protect your Personal Data and restrict their use of your Personal Data to the purposes for which it was provided to them;
Certain Third Party Services to facilitate the delivery of targeted ads, promotions, and offers to you on our behalf on and off our Platform;
Government and law enforcement agencies or private parties where necessary to enforce and comply with the law. To the extent permitted under applicable law, we may disclose any Personal Data and other information to government agencies or private parties as we believe is necessary or appropriate to investigate, respond to, and defend against legal claims, for legal process (including subpoenas), to protect our property and rights and those of a third party, to protect us against liability, for the safety of the public or any person, to prevent or stop any illegal, unethical, fraudulent, abusive, or legally actionable activity, to protect the security and integrity of our Platform and any equipment used to make our Platform available, or to comply with applicable laws; Our customers on whose behalf you access, use, or otherwise interact with our Platform; and Any third party to whom you consent and/or instruct us to provide your Personal Data.
Third Party Information Collection
Based on the nature of our Platform, third parties may collect information from or about you through or in connection with our Platform. In addition to other information provided in this Policy, including, without limitation, the section titled “How We Collect Usage Data” the categories of third parties that may collect information about you through or in connection with our Platform include:
Third parties whose content is linked to on our Platform. Any links to other websites, applications, or other third party content on our Platform, are not an endorsement, authorization, or representation of our affiliation with that third party and we are not responsible for the content and/or the privacy and security policies and practices of any third party. We encourage you to read the privacy policies or statements applicable to any third party websites, applications, or content you access, use, or otherwise interact with; and
Other users of our Platform. Depending on how you interact with our Platform, other users may collect information about you that is published or otherwise generally made available on our Platform. While we place restrictions on what our users are allowed to do with information made available to them on or through our Platform, including, without limitation, those set forth in our agreements with our customers, we are not responsible for any misuse of any information, including Personal Data, by any user. If you believe that another user has misused your Personal Data or any other information available on or through the Platform, please contact us at email@example.com.
How to Manage Your Personal Data
We offer you several choices with respect to how we use your Personal Data. The mechanisms available to you to control your Personal Data are: To update any Personal Data you have provided to us, update your preferences, or otherwise contact us about our use of your Personal Data, please email us at firstname.lastname@example.org or click the “Contact Us” link available on our Websites. Additionally, if you are an authorized user of our Services, the administrator for the customer on whose behalf you access, use, or otherwise interact with our Services can modify your account information.
For marketing and other promotional email communications you receive from us, you can opt-out of receiving such communications by following the unsubscribe instructions contained in most email messages from us. Your unsubscribe request or email preference changes will be processed promptly, though this process may take several days. During that processing period, you may receive additional marketing and other promotional emails from us. Please note, opting out of these communications will only apply to marketing and other promotional emails and will not apply to any other emails or other communications we send you for non-marketing purposes, including, without limitation, emails and other communications about your access to, use of, or other interactions with our Platform.
If you do not want us to use your Personal Data to deliver targeted advertisements to you according to our target audience preferences, you can opt out by sending us an email with your request to email@example.com. We do not control third parties’ collection or use of your Personal Data to serve interest-based advertising. However, these third parties may provide you with ways to choose not to have your Personal Data used to deliver ads targeted to you according to their target audience preferences. You can opt out of receiving targeted ads from members of the Network Advertising Initiative (“NAI”) on the NAI’s website, located at https://www.networkadvertising.org, and from members of the Digital Advertising Alliance (“DAA”) on their website, located at https://youradchoices.com. Please note, even if you opt out from receiving targeted ads, you may still see ads based on factors such as your general location derived from your IP address, browser type, and search terms.
Protecting Your Personal Data
We maintain commercially reasonable safeguards to maintain the security and privacy of Personal Data we collect and use in connection with our Platform. Nevertheless, when disclosing Personal Data, you should remain mindful that there is an inherent risk in the use of email and the internet. Your Personal Data and other information may be intercepted without our knowledge or consent, collected illegally, and/or used by third parties that are not affiliated and/or controlled by us. We cannot guarantee the security of any information, including your Personal Data, that you disclose online, and you do so at your own risk.
We do not direct or target any piece of our Platform to children under the age of 13. If we learn that we have collected the Personal Data of anyone under the age of 13, we will take appropriate steps to delete this information. If you are a parent or guardian of someone under the age of 13 and discover that your child has submitted Personal Data to us, please contact us at firstname.lastname@example.org. We will make reasonable efforts to remove such information from our databases.
California Privacy Rights
If you are a California resident, under California’s Shine the Light Law (California Civil Code Section 1798.83) you have the right to request the following information regarding our disclosure of your Personal Data to third parties for direct marketing purposes: (1) the categories of Personal Data we disclosed to third parties for their direct marketing purposes during the preceding calendar year; (2) the names and addresses of the third parties that received the information; and (3) if the nature of the third party’s business cannot be determined from their name, examples of the products or services they marketed. This information may be provided in a standardized form that is not specific to you.
You are permitted to obtain this information from us once a year, free of charge. To make such a request, please submit your request in writing to:
Attn: CA Privacy Rights Request
10 E 29th Street, Unit 40G
New York, New York 10016
Users Outside the United States of America
We are located in the United States of America and all Personal Data we collect or receive on or in connection with our Platform will be collected or received in the United States of America. If you access, use, or otherwise interact with our Platform or otherwise engage with us from outside the United States, please be aware that the laws applicable to Personal Data collected, stored, used, or otherwise processed in United States of America may not provide the same protections as the laws in other countries or economic regions.
Changes and Updates to this Policy
Because the methods to collect, protect, use, and otherwise process Personal Data and the nature and scope of our Platform are continually evolving, this Policy may change at any time. Unless otherwise noted, those changes will be effective as soon as they are posted. If changes are made to this Policy, we will make it known on our Platform or by email and will indicate the last date it was updated above. Please check back periodically to see if our Policy has been updated. Your continued use of our Platform after any changes to this Policy become effective constitutes your continued acknowledgement that you understand that we may continue to use your Personal Data as described in this Policy as updated from time to time.
We welcome your questions, comments, and concerns about privacy. Please email us at email@example.com with any questions or feedback you have pertaining to our privacy practices.
Aptitude 8 Terms of Service
This Aptitude Terms of Service (“Terms”) is made between the individual or entity using the Aptitude 8 Services pursuant to these Terms (“You” or “Your”) and A8 Ventures (“Aptitude 8” or “we,” “us,” or “our”), and, with all Order Forms entered into under these Terms, govern all Aptitude 8 Services provided by Aptitude 8 to You (together, the “Parties” and, individually, each a “Party”).
By submitting an Order Form or clicking “I agree” and accessing or using the Aptitude 8 Services, You agree to be bound by these Terms. If you are entering into these Terms on behalf of an entity, by accepting an Order Form or clicking “I agree” you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to these Terms, do not submit an Order Form, or click “I agree”.
PLEASE NOTE THAT YOUR ACCESS TO AND USE OF THE APTITUDE 8 SERVICES ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT ACCESS OR USE THE APTITUDE 8 SERVICES IN ANY MANNER. SECTION 11 BELOW HAS A MANDATORY ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THESE TERMS, YOU AGREE TO THOSE PROVISIONS.
THE LICENSES AND RIGHTS GRANTED UNDER THESE TERMS ARE EXPRESSLY CONDITIONED UPON THE TERMS CONTAINED IN THESE TERMS WITHOUT MODIFICATION. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU OR ON YOUR BEHALF IN ANY MANNER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY APTITUDE 8.
- INTERPRETATION AND DEFINITIONS
- Interpretation. The headings contained in these Terms are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of these Terms. For purposes of these Terms: (a) references to clauses and sections are references to clauses or sections of these Terms unless otherwise stated; (b) words used in the singular include the plural and vice versa, as the context may require; (c) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (d) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to these Terms as a whole; (e) the word “or” is not exclusive; and (f) unless context otherwise requires, references herein: (1) to a defined term that includes other defined terms (e.g., Aptitude 8 Services) are deemed to be followed by “(in whole or in part)”; (2) to an agreement, instrument, or other document means such agreement, instrument, or document as amended, supplemented, or modified from time to time to the extent permitted by the provisions hereof; and (3) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules, exhibits, and other attachments referred to herein shall be construed with, and as an integral part of, these Terms to the same extent as if they were set forth verbatim herein.
- Definitions. Capitalized terms used in these Terms have the following definitions or those given in these Terms or, if not defined in these Terms, have their plain English meaning as commonly interpreted in the United States of America:
- “Account” means a password-protected account assigned to a User that provides such User access to certain features and functionalities of the Aptitude 8 Services.
- “Account ID” means the username and password each User uses to access his/her Account.
- “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interests of such entity or Party.
- “Aptitude 8 Services” means the features, functionalities, tools, and other services Aptitude 8 makes available to You under these Terms and, if applicable, one or more Order Forms. As referred to herein, the Aptitude 8 Services includes the SaaS and Documentation.
- “Confidential Information” means any information prepared for or delivered to a Party (the “Receiving Party”) by the other Party or its representative (the “Disclosing Party”) (including information or data received by the Disclosing Party from a third party and to whom the Disclosing Party has confidentiality obligations) that: (a) is marked or designated by the Disclosing Party as “confidential” or “proprietary”; (b) is disclosed orally or visually provided that such information is identified by the Disclosing Party at the time of disclosure as proprietary or confidential; or (c) is known to the Receiving Party, or should be known to a reasonable person given the contents and circumstances of the disclosure, as being treated as confidential or proprietary by the Disclosing Party, even if the Disclosing Party fails to take the actions specified in (a) or (b) with respect to such information.
- “Contact” means a single individual (other than a User) whose Contact Information is stored by You in the HubSpot Platform.
- “Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the HubSpot Platform or uploaded by you to the HubSpot Platform.
- “Documentation” means all Aptitude user manuals, operating instructions, and other documentation relating to the Aptitude 8 Services, as generally made available by Aptitude 8 to You from time to time.
- “Feedback” means all ideas, advice, recommendations, proposals, suggestions, comments, and other feedback You provide to Aptitude 8 related to the Aptitude 8 Services or any other services provided by Aptitude 8 or its Affiliates.
- “HubSpot” means HubSpot, Inc. and its Affiliates.
- “HubSpot Platform” means the online application and platform service made available by HubSpot at https://www.hubspot.com.
- “HubSpot TOS” means the HubSpot terms that govern Your use of the HubSpot Platform when used with or in connection with the Aptitude 8 Services as more fully described below in Section 2.5, and as updated from time to time and available at https://legal.hubspot.com/terms-of-service.
- “Intellectual Property” means, to the extent that any of the following are recognized in any jurisdiction worldwide: (a) intellectual property and/or proprietary rights, whether registered or unregistered, including copyrights and patent rights (including applications for patent protection); (b) publicity rights, trade dress, registered or otherwise protected trademarks, trade names, service marks, and protections from trademark dilution; (c) trade secrets, as defined in the Uniform Trade Secrets Act or its successor or its equivalent in applicable jurisdictions; and (d) proprietary products, services, know-how, techniques, business processes, configurations, and business methods.
- “License” means the licenses granted by Aptitude 8 to You, as more fully set forth in Section 2.
- “Non-Aptitude 8 Services” means any third party products and/or services we may offer or make available to You through or in connection with Your use of the Aptitude 8 Services or that you otherwise access or use through or in connection with Your use of the Aptitude 8 Services.
- “Order Form” means any quote, online order form, or other ordering document through which You request and/or acquire access to or use of the Aptitude 8 Services.
- “Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.
- “SaaS” means the software as a service features and functionalities within the Aptitude 8 Services that Aptitude 8 makes available to You under these Terms.
- “Support Services” means the sales, installation, training, support, and other services provided by Aptitude 8 to You in conjunction with Your access to and use of the Aptitude 8 Services in conjunction with the HubSpot Platform.
- “User” means each individual, including You, Your employees, representatives, consultants, contractors, or agents, who are authorized to use the Aptitude 8 Services.
- “You” and “Your” mean the person who accesses or uses the Aptitude 8 Services and includes any entity on whose behalf such person accesses or uses the Aptitude 8 Services.
- “Your Data” means any information, reports, tickets, or other data that is provided through, generated by, or otherwise processed through or in connection with Your use of the Aptitude 8 Services, including, where applicable, Contact Information and other Personal Data contained therein.
- APTITUDE 8 SERVICES
- Provision of Aptitude 8 Services. The Aptitude 8 Services offer software, services, and tools for use on the HubSpot Platform. We provide and make the Aptitude 8 Services available to You subject to these Terms and any Order Form we accept through which you acquire access to or use of the Aptitude 8 Services.
- Your Access to and Use of the Aptitude 8 Services. Subject to Your compliance with these Terms, during the Term, Aptitude 8 grants You and Your authorized Users a limited, non-exclusive license to access and use the Aptitude 8 Services solely for Your own internal business purposes, in accordance with all applicable Documentation and as specified in the applicable Order Form.
- Subject to Your compliance with these Terms and the applicable Order Form, You will be provided one (1) administrator Account to manage Your use of the Aptitude 8 Services (“Administrator Account”), including, creating individual Accounts for Your authorized Users (subject to any User limits set forth in the applicable Order Form) to access and use the Aptitude 8 Services.
- Each Account and Account ID, including the Administrator Account, is personal in nature and may only be used by the User assigned to the Account. You will not allow any access to Your Accounts or Your Account IDs by anyone other than You and Your authorized Users.
- You agree to change any Account ID (or close the applicable Account) immediately if an Account ID is lost, stolen, or otherwise compromised and to immediately notify us of such an incident.
- You are fully responsible for all use of Your Accounts and Your Account IDs (whether lawful or unlawful) and for any actions taken through Your Accounts (or using Your Account IDs).
- You agree that all information provided in connection with establishing Your Accounts: (a) will be true and complete; and (b) will be promptly updated and kept accurate and current.
- Neither You nor Your Users may: (a) select or use an Account ID of another person with the intent to impersonate that person; or (b) select or use an Account ID that Aptitude 8, in its sole discretion, deems offensive in whole or in part.
- You authorized Aptitude 8 to access any Account, including Your Data as necessary to administer, operate, or configure the Aptitude 8 Services.
- Restrictions. You will not, and will not permit any third party to: (a) access or attempt to access the Aptitude 8 Services except as expressly provided in these Terms; (b) use the Aptitude 8 Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Aptitude 8 Services; (c) use automated scripts to collect information from or otherwise interact with the Aptitude 8 Services; (d) alter, modify, reproduce, or create derivative works of the Aptitude 8 Services; (e) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Aptitude 8 Services or otherwise make the Aptitude 8 Services available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Aptitude 8 Services; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Aptitude 8 Services; (h) monitor the availability, performance, or functionality of the Aptitude 8 Services; or (i) interfere with the operation or hosting of the Aptitude 8 Services.
- HubSpot Platform. The Aptitude 8 Services are developed and operate on the HubSpot Platform, which is hosted by HubSpot. Your access to and use of the Aptitude 8 Services requires You to have and maintain an account on HubSpot that is sufficient to provide You with all appropriate licenses and rights necessary to access and use the Aptitude 8 Services on the HubSpot Platform (“Your HubSpot Account”). In addition to these Terms, Your access to and use of the Aptitude 8 Services is subject to the HubSpot TOS. Except as set forth in these Terms, in the event of a conflict between these Terms and the HubSpot TOS, the terms of the HubSpot TOS shall control with respect to Your access to the HubSpot Platform provided under the HubSpot TOS. For clarity, nothing contained in these Terms shall grant you any rights or licenses with respect to Your HubSpot Account or Your access to or use of the HubSpot Platform. WITHOUT LIMITING ANYTHING SET FORTH HEREIN, WE SHALL NOT BE LIABLE FOR, AND SHALL NOT BE IN BREACH OF OUR OBLIGATIONS UNDER THESE TERMS AS A RESULT OF, YOUR INABILITY TO ACCESS OR USE THE APTITUDE 8 SERVICES UNDER ANY CIRCUMSTANCES ARISING AS A RESULT OF YOUR INABILITY TO ACCESS THE HUBSPOT PLATFORM FOR ANY REASON, INCLUDING ANY SUSPENSION, TERMINATION, OR EXPIRATION OF YOUR HUBSPOT ACCOUNT.
- Support. During the Term, we will provide You with Support Services for current versions of the Aptitude 8 Services during our normal business hours and we will use commercially reasonable efforts to make the Aptitude 8 Services available in accordance with the Service Level Agreement set forth in Exhibit A, attached hereto and incorporated herein by reference.
- Non-Aptitude 8 Services. We or other third parties may make available to You certain Non-Aptitude 8 Services through or in connection with the Aptitude 8 Services. Except as expressly set forth in these Terms, Your access to, use of, or interaction with Non-Aptitude 8 Services and any exchange of data or information between You and any Non-Aptitude 8 Services may be subject to and governed by those applicable third parties’ terms and conditions (generally, a “Non-Aptitude 8 Service TOU”), but those Non-Aptitude 8 Service TOUs will not otherwise apply to Your access to or use of the Aptitude 8 Services. In the event of a conflict between these Terms and a Non-Aptitude 8 Service TOU, the terms of the applicable Non-Aptitude 8 Service TOU will control solely with respect to your access to or use of the applicable Non-Aptitude 8 Service. We do not warrant or support any Non-Aptitude 8 Services or the third parties that provide them, whether or not we recommend them, or designate them as preferred, certified, or otherwise. If You install, enable, or interact with a Non-Aptitude 8 Service, You agree that we may allow access to Your Data, which may include Contact Information and other Personal Data, as required to enable the interoperation of that Non-Aptitude 8 Service with the Aptitude 8 Services. We are not responsible for any processing handling, disclosure, modification, or deletion of any of Your Data resulting from Your access to, use of, or interaction with a Non-Aptitude 8 Service or the actions or inactions taken by the provider of a Non-Aptitude 8 Service.
- Your Responsibilities. Without limiting anything set forth in these Terms, You are responsible for: (a) complying with these Terms, including the HubSpot TOS and any other applicable Non-Aptitude 8 Service TOUs, and any additional terms contained in our accepted Order Forms; (b) complying with all applicable laws; and (c) using commercially reasonable efforts to safeguard Your Account IDs and preventing unauthorized access to the Aptitude 8 Services.
- YOUR DATA
- Aptitude 8 Use of Your Data. You acknowledge and agree that we, and, as applicable, grant us all necessary rights and licenses in and to Your Data necessary to enable us to: (a) reproduce, translate, encode, publish, use, and distribute any and all of Your Data to the extent necessary to provide and operate the Aptitude 8 Services; and (b) aggregate any and all of Your Data and to use such aggregated data for any lawful purpose, including, without limitation, improving the Aptitude 8 Services. Further, You acknowledge and agree that we are not responsible or in any way liable for any corruption, misdelivery, or other loss of any of Your Data.
- Roles, Responsibilities, and Obligations. Without limiting anything set forth in these Terms:
- You agree, represent, and warrant that: (a) as between Aptitude 8 and You, for purposes of applicable laws, You are the controller or owner of Personal Data contained within Your Data or otherwise processed through or in connection with Your use of the Aptitude 8 Services and that You are the business that collects that Personal Data; (b) You have the right and have obtained all necessary permissions and consents to enter or process any of Your Data through or in connection with Your use of the Aptitude 8 Services; (c) Your Data is accurate and correct; and (d) You will provide any necessary or legally required notices or disclosures to Contacts and other third parties relating to Your disclosure or processing of Your Data through or in connection with the Aptitude 8 Services.
- To the extent Aptitude 8 processes or discloses Personal Data contained within Your Data through or in connection with Your use of the Aptitude 8 Services, Aptitude 8: (a) acts as a service provider or processor as those terms are defined under applicable law and does so strictly in providing the Aptitude 8 Services to You and in accordance with Your instructions; (b) may only retain, process, use, and/or disclose such Personal Data solely to provide the Aptitude 8 Services to You; (c) is strictly prohibited from retaining, using, and/or disclosing such Personal Data for any reason or purpose other than providing the Aptitude 8 Services to You; and (d) does not receive any monetary and/or valuable consideration for disclosing such Personal Data to third parties.
- Representations and Warranties. Without limiting anything set forth in these Terms, You represent and warrant to us that neither Your Data nor our use of Your Data as permitted under these Terms will: (a) violate these Terms or any applicable laws, rules, or regulation; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of any third party’s Intellectual Property rights; (d) be illegal in any way or advocate illegal activity; (e) be false, misleading, or inaccurate; or (f) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or a disruptive advertisement.
- Safeguarding Your Data. We will maintain reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Your Data. You acknowledge and agree that we may monitor, record, and/or audit Your or Your authorized Users’ access to or use of the Aptitude 8 Services to protect the security of the Aptitude 8 Services and Your Data. If You are a business entity, You will disable access to the Aptitude 8 Services if any authorized User leaves Your organization, is terminated, or in any other way ends its relationship with Your organization. In the event You become aware of any unauthorized access to the Aptitude 8 Services, You will immediately notify us. If we become aware of any authorized access to or acquisition of any Personal Data contained within Your Data that requires notification under applicable law, we will notify You without undue delay and reasonably investigate and cooperate in any investigation of the unauthorized access or acquisition. Each Party will take appropriate measures to comply with any notification obligations under applicable law.
- Aptitude 8 Services. As between the Parties, Aptitude 8 owns all right, title, and interest in and to the Aptitude 8 Services, including any improvements, modifications, enhancements, additions, and derivatives thereof, and any and all Intellectual Property rights in the foregoing. You do not acquire any rights, express or implied, in the foregoing, other than those specified in these Terms.
- Feedback. By submitting Feedback to us in any way, You acknowledge and agree that: (a) Your Feedback does not contain confidential or proprietary information; (b) You are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (d) we may have something similar to the Feedback already under consideration or in development; (e) any Feedback that which is not subject to a patent automatically becomes our property without obligation to You; and (f) You are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
- Your Data. As between the Parties, You own all right, title, and interest in and to Your Data, excluding any of our Intellectual Property incorporated therein or otherwise utilized by Your Data, irrespective of whether Your Data is stored via the Aptitude 8 Services or in any databases created using the Aptitude 8 Services. We do not acquire any rights, express or implied, in Your Data, other than those specified in these Terms, including those set forth in Section 3.
- Third Party Intellectual Property. You acknowledge and agree that we may have incorporated into the Aptitude 8 Services Intellectual Property owned by third parties (“Third Party Intellectual Property”) and You agree that Your right to access and use portions of the Aptitude 8 Services containing Third Party Intellectual Property may be subject to the rights of such third parties and limited by additional licensing terms concerning such Third Party Intellectual Property. Your express agreement to such additional licensing terms may be required before You can access and use certain Third Party Intellectual Property. Without limiting the foregoing, You acknowledge that the Aptitude 8 Services may include or use software subject to open source license agreements and, to the extent not in conflict with such agreements, these Terms.
- FEES AND PAYMENT
- Fees. You are required to pay all fees and charges imposed by Aptitude 8 arising from Your access to and use of the Aptitude 8 Services as set forth in each Order Form under these Terms (“Fees”), including Fees that must be paid in advance and any Fees arising from Your access to or use of the Aptitude 8 Services. Your authorization to access and use the Aptitude 8 Services is contingent on Your payment of all applicable Fees. Any Fees applicable during a Renewal Term must be paid before the Renewal Term commences. Except as otherwise set forth herein, all Fees will be non-refundable once paid to Aptitude 8 (including upon any expiration, suspension, or earlier termination of these Terms).
- Payments. If you have specified credit card or direct withdrawal from a bank account as a payment mechanism under these Terms, You grant Aptitude 8 the right to charge the credit card or debit the bank account provided to Aptitude 8 for all Fees incurred under these Terms.
- Late Payments. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted by applicable law.
- Changes. Aptitude 8 may change any portion of the Fees upon any renewal of these Terms, such changes to take effect at the beginning of each Renewal Term.
- Taxes. Fees and other amounts payable by You under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by You hereunder, other than taxes on our income.
- TERM AND TERMINATION
- Term. Unless otherwise set forth in an Order Form: (a) the initial term of these Terms shall be for one (1) year from the date set forth in the applicable Order Form (the “Initial Term”); and (b) these Terms shall automatically renew for successive 1 year periods thereafter (each, a “Renewal Term” and, together with the Initial Term and any and all Renewal Terms, the “Term”), unless either Party provides written notice of its intent not to renew at least 60 days prior to the expiration date of the Initial Term or the then-current Renewal Term.
- Termination. Aptitude 8 may terminate these Terms upon notice to You if You breach any term of these Terms and fail to cure such breach within 10 days of notice thereof from Aptitude 8. We further reserve the right to immediately suspend Your access to or use of the Aptitude 8 Services where we believe that Your access to or use of the Aptitude 8 Services may be in violation of these Terms or applicable law, present a security risk, or otherwise places us or our licensors or providers at risk of harm, loss, or liability.
- Effect of Termination or Expiration. Following termination or expiration of these Terms for any reason: (a) all rights granted to You under these Terms will terminate; (b) You will cease all use of and access to Your Account and the Aptitude 8 Services; (c) all Fees or other amounts incurred through Your Account or which You have otherwise incurred under these Terms will become payable; and (d) Aptitude 8 may, in its sole discretion, delete Your Account and any of Your Data stored by Aptitude 8. Further, termination or expiration of these Terms shall not relieve You of any liabilities or obligations arising before the date of such termination or expiration.
- Non-Disclosure. The Receiving Party shall keep in strict confidence and trust all Confidential Information of the Disclosing Party. The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose the Disclosing Party’s Confidential Information to any third party (other than to the Receiving Party’s employees, agents, or representatives on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein).
- Use of Confidential Information. The Receiving Party shall not use Confidential Information except and solely for the performance of the Receiving Party’s obligations under these Terms.
- Protection of Confidential Information. The Receiving Party shall use the same care and discretion to avoid disclosure of the Disclosing Party’s Confidential Information as it uses with its own confidential or proprietary information, and in no event with less than reasonable care.
- Exceptions. As used in these Terms, Confidential Information does not include information that demonstrably: (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (b) was possessed by the Receiving Party prior to being furnished by the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with, or other obligations of confidentiality to, the Disclosing Party or any third party with respect to such information; (c) is independently developed by the Receiving Party without breach of these Terms; or (d) becomes available to the Receiving Party from a source other than the Disclosing Party that is permitted to disclose such information, provided that such source is not bound by a confidentiality agreement with, or other obligation of confidentiality to, the Disclosing Party or any third party with respect to such information.
- Required Disclosures. It shall not be a violation of Section 7.1 for the Receiving Party to disclose the Disclosing Party’s Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law requires the disclosure of such information, provided that: (a) if not prohibited under applicable law, the Receiving Party, prior to disclosing such information, gives reasonable prior written notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (b) in all cases, the Receiving Party discloses only that information that is legally required to be disclosed. For clarity, any of the Disclosing Party’s Confidential Information the Receiving Party discloses pursuant to this Section 7.5 shall remain subject to the confidentiality requirements under these Terms for all other purposes.
- Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may be irreparably harmed if the Disclosing Party’s Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than as permitted under these Terms and further agrees that the Disclosing Party shall have the right to seek injunctive relief upon any violation or threated violation of the terms of this Section 7, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.
- Return/Destruction of Confidential Information. Except as otherwise set forth in these Terms, upon the expiration or termination of these Terms for any reason, or upon the Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all Confidential Information of the Disclosing Party, together with any copies thereof, or, if requested by the Disclosing Party, destroy the same. Upon the Disclosing Party’s written request, the Receiving Party shall provide written certification of its compliance with this Section 7.7.
- Survival of Confidentiality Obligations. The Receiving Party’s obligation to maintain the confidentiality of the Disclosing Party’s Confidential Information shall be in effect during the Term and for a period of 5 years after the expiration or earlier termination of these Terms. Notwithstanding anything to the contrary in these Terms, the obligations of confidentiality with respect to a trade secret of the Disclosing Party shall continue in effect so long as such Disclosing Party protects such Confidential Information as a trade secret under applicable trade secret laws.
- REPRESENTATIONS, WARRANTIES, COVENANTS, AND DISCLAIMERS
- Representations and Warranties. You represent, warrant, and covenant that: (1) You have the legal right and authority to enter into these Terms; (2) You have the legal right and authority to perform Your obligations under these Terms and to grant the rights and licenses described in these Terms; and (c) You will access and use the Aptitude 8 Services only as expressly set forth in these Terms and at all times in strict compliance with these Terms.
- HubSpot Platform and Non-Aptitude 8 Services. You acknowledge that access to and use of the Aptitude 8 Services is dependent upon the proper functioning of the HubSpot Platform and other Non-Aptitude 8 Services and that Aptitude 8 has no control over the foregoing. We disclaim responsibility and liability for any inability to access or use the Aptitude 8 Services, or degradation in the Aptitude 8 Services’ performance, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, the HubSpot Platform or other Non-Aptitude 8 Services. You are solely responsible for the configuration of the Aptitude 8 Services and all technology and services necessary to access and use the Internet, the Aptitude 8 Services, the HubSpot Platform; and any Non-Aptitude 8 Services.
- Disclaimer. OTHER THAN AS EXPRESSLY STATED IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE APTITUDE 8 SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APTITUDE 8, ITS AFFILIATES, OR OTHER THIRD PARTIES SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY AY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY GRANTED HEREIN. APTITUDE 8 MAKES NO WARRANTY OF ANY KIND THAT THE APTITUDE 8 SERVICES, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET YOUR OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. YOU ASSUME THE ENTIRE RISK AS TO YOUR ACCESS TO AND USE OF THE APTITUDE 8 SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE.
- Indemnification by Aptitude 8.
- Aptitude 8 shall indemnify, defend, and hold You harmless from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages, and liabilities (collectively, “Losses”), and shall reimburse You for any and all legal (including reasonable attorney’s fees), accounting and other fees, costs, and expenses reasonably incurred in connection with investigating, mitigating, or defending any such Loss (collectively, “Expenses”) where such Losses or Expenses are sustained, incurred, or asserted against You and arise out of a third party claim that the Aptitude 8 Services infringe or misappropriate such third party’s Intellectual Property rights (“Infringement Claim”).
- Our obligations with respect to an Infringement Claim shall not apply to any Loss or Expense based on: (a) Your access to or use of the Aptitude 8 Services in any manner not expressly permitted under these Terms; (b) Your access to, use of, or combination of the Aptitude 8 Services with any non-Aptitude 8 software, data, hardware, equipment, or technology except for any such access, use, or combination that are approved by Aptitude 8 in writing; (c) Your access to or use of the Aptitude 8 Services after receiving notice it infringes a third party’s Intellectual Property rights; or (d) any Loss or Expense for which You are contractually obligated to indemnify, defend, or hold us harmless.
- If an Infringement Claim is made or appears possible, You agree to permit Aptitude 8, at our sole discretion, to: (a) modify or replace the Aptitude 8 Services, or component or part thereof, to make it non-infringing; or (b) obtain the right for You to continue to use the Aptitude 8 Services. If we determine that neither alternative is reasonably available, we may terminate these Terms with respect to the affected component or part, effective immediately upon written notice to You, without further liability or obligation to You.
- This Section 9.1 sets forth Your sole remedy and our sole liability and obligation for any actual, threatened, or alleged Infringement Claim.
- Indemnification by You. You shall indemnify, defend, and hold Aptitude 8 and its Affiliates, and its and their respective officers, directors, employees, agents, and attorneys (“Aptitude 8 Indemnified Parties”), harmless from and against any and all Losses or Expenses that are sustained or incurred by, or asserted against, any Aptitude 8 Indemnified Party arising out of: (a) You negligence or more willful misconduct; (b) Your breach of any representation, warranty, or covenant; (c) Your access to or use of the Aptitude 8 Services not authorized by these Terms; (d) Your access to, use of, or combination of the Aptitude 8 Services with any data, software, hardware, equipment, or technology not provided by Aptitude 8 or approved by Aptitude 8 in writing; (e) modification of the Aptitude 8 Services made by You or any third party; or (f) any claim that Your access to or use of the Aptitude 8 Services infringes or constitutes a wrongful use of any third party’s Intellectual Property rights, any right of publicity, or is libelous or defamatory.
- Procedure. In the event a Party is entitled to indemnification from or to be defended or held harmless (the “Indemnified Party”) by the other Party (the “Indemnifying Party”) under these Terms, the Indemnified Party shall provide the Indemnifying Party with: (a) prompt written notification of any such Loss or Expense; (b) sole control and authority over the defense or settlement thereof, provided that if any settlement requires any actions or admissions by the Indemnified Party, such settlement will require the Indemnified Party’s prior written consent; and (c) all available information and reasonable assistance necessary to settle and/or defend any such Losses or Expenses, at the Indemnifying Party’s expense. Failure by the Indemnified Party to provide prompt notice of a Loss or Expense or to provide sole control and authority or information and assistance shall not relieve the Indemnifying Party or its applicable obligations, except and solely to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party may have its own counsel present at and participate in all proceedings or negotiations relating to a Loss or Expense, at the Indemnified Party’s own expense.
- LIMITATION OF LIABILITY
APTITUDE 8 AND ITS LICENSORS AND PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS OR USE OF THE APTITUDE 8 SERVICES, EVEN IF APTITUDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF YOUR DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE TOTAL CUMULATIVE LIABILITY OF APTITUDE 8 AND ITS LICENSORS AND PROVIDERS IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED FEES PAID BY YOU TO APTITUDE 8 FOR THE APTITUDE 8 SERVICES IN THE 12 MONTH PERIOD PRECEDING THE DATE WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. YOU AGREE THAT APTITUDE 8 WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS OF ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, APTITUDE 8’S AND ITS LICENSORS’ AND PROVIDERS’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- ARBITRATION AND CLASS ACTION WAIVER
- Arbitration Agreement. The Parties will attempt to settle all claims, allegations, controversies, and disputes related in any way to these Terms (“Disputes”) through good faith discussions between the Parties. Except as set forth below, the Parties agree that any Dispute that cannot be resolved between the Parties shall be resolved through binding arbitration under this Section (the “Arbitration Agreement”). Either Party may refer the Dispute to binding arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. Any such arbitration will be conducted in accordance with the rules of the American Arbitration Association (“AAA Rules”) and will be conducted in New York, New York (U.S.A.). The arbitration will be presided over by a single arbitrator, neutral as to each Party, and possessing substantial experience in the software industry. Each Party will bear its own expenses and will share equally in fees of the arbitrator. The Parties will provide each other with all requested documents and records related to the Dispute in a manner that will minimize the expense and inconvenience of both Parties. Discovery will not include depositions or interrogatories, except as the arbitrator may expressly allow upon a showing of need. The Parties and the arbitrator will be guided in resolving discovery disputes by the Federal Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator will have sole and complete discretion to resolve such disputes. The Parties agree that time of the essence principles will guide the hearing and that the arbitrator will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator will deliver a written learned opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator, which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the Parties, and judgment may be entered upon it in accordance with applicable law in any court of competent jurisdiction. In addition, the arbitrator will have the discretion to award the prevailing Party all or part of its attorneys’ fees and costs, including fees associated with the arbitrator, if the arbitrator determines that the positions taken by the other Party on material issues of the Dispute were without substantial foundation. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the Party that resists its enforcement. These Terms will control if there is a conflict between these Terms and the AAA Rules.
- Class Action Waiver. The Parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or Dispute to be brough, heard, or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability, or enforceability of the Class Action Waiver and/or the arbitrability of a claim or Dispute may only be determined by an arbitrator.
- Exceptions. Notwithstanding the foregoing, You agree that the following matters shall not, at the election of Aptitude 8, be subject to binding arbitration: (a) any dispute concerning Aptitude 8’s Intellectual Property rights; (b) any Dispute related to or arising from allegations of criminal activity; or (c) any claim for injunctive relief.
- Export Restrictions. You shall not remove or export from the United States or allow the export or re-export of the Aptitude 8 Services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
- Commercial Software. As defined in FAR section 2.101, the Aptitude 8 Services and Documentation are “commercial items” and according to DFAR section 225.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely on the terms of these Terms and will be prohibited except to the extent expressly permitted by these Terms.
- Governing Law and Venue. These Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law provision that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Subject to Section 11, any legal suit, action, or proceeding arising out of or relating to these Terms or the transactions contemplated hereby will be instituted exclusively in the state and federal courts located in New York, New York, as appropriate, and each Party irrevocably submits to the jurisdiction of such courts in any suit, action, or proceeding.
- Notices. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided in one of several ways: (a) by postal mail to the address for Aptitude 8 listed on the Aptitude 8 Services; (b) electronically by sending You an email to any email address You provide to Aptitude 8 in connection with Your Account; or (c) in the case of any notice or communication applicable to both You and other Users of the Aptitude 8 Services, Aptitude 8 may instead provide such notice or communication by posting in on the Aptitude 8 Services. Notices provided to Aptitude 8 will be deemed given when actually received by Aptitude 8. Notices or communications provided to You will be deemed given 24 hours after posting to the Aptitude 8 Services or sending via email, unless (as to email) the sending party is notified that the email address is invalid.
- Irreparable Harm. You acknowledge that Your breach of these Terms would cause Aptitude 8 irreparable harm and subject Aptitude 8 to damages difficult or impossible to ascertain, and, therefore, Aptitude 8 shall be entitled to seek injunctive and other equitable remedies, in addition to any other remedies which may be available upon Your breach or threatened or anticipated breach of these Terms.
- Relationship of the Parties. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.
- Amendment and Modification. Aptitude 8 reserves the right, at any time, to modify the Aptitude 8 Services, with or without notice to You, by making those modifications available on the Aptitude 8 Services. Aptitude 8 may propose amendments to these Terms at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of these Terms 30 days after the day such notice is given unless You inform Aptitude 8 that You do not accept such amendments. In the event You inform Aptitude 8 that You do not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect; provided, however, in the event you reject any such amendments, Aptitude 8 shall have the right to terminate these Terms. No other modification of these Terms shall be valid except by written amendment signed by Aptitude 8’s and Your authorized representatives.
- Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Assignment. You may not assign any of Your rights or delegate any of Your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Aptitude 8. We may freely assign any right or obligation under these Terms without Your prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder arising prior to such assignment or delegation. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Force Majeure. With the exception of any monetary obligations under these Terms, neither Party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, sabotage, embargo, pandemic, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power, or telecommunications under third party control.
- Survival. The provisions of these Terms which by their nature are intended to survive the expiration or earlier termination of these Terms shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination, cancellation, completion, or expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity, and limitations of liability shall survive the expiration or earlier termination of these Terms.
- Conflicts. In the event of any inconsistency between the statements made in the body of these Terms and any other documents incorporated herein by reference, these Terms shall control unless such other document incorporated herein by reference expressly provides that it is modifying these Terms and is signed by Aptitude 8’s and Your authorized representative.
- No Exclusivity. Nothing herein shall restrict Aptitude 8’s right to contract with any third party to provide products and/or services similar to those provided by Aptitude 8 to You under these Terms.
- Electronic Communications. The communications between Aptitude 8 and You use electronic means, whether You access or use the Aptitude 8 Services or communicate with us via email, or whether we post notices on the Aptitude 8 Services or communicate with You via email. For contractual purposes, each Party consents to receive communications from the other Party in electronic form. Further, You agree that all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect either Party’s non-waivable rights.
- Entire Agreement. These Terms constitute the entire understanding and agreement between the Parties with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications or agreements with respect to the subject matter hereof. No usage of trade, or other regular practice or method of dealing between the Parties or others, will be used to modify, interpret, supplement, or alter in any manner the express terms of these Terms. If any document issued by You includes any reference that is inconsistent with the provisions of these Terms, such references shall be null and voice despite no objection being stated by Aptitude 8.
Service Level Agreement
This Aptitude 8 Service Level Agreement (“SLA”) apply to the Support Services provided by Aptitude 8 to You under the Terms. Support Services are expressly conditioned on You abiding by Your applicable obligations under the Terms. Support Services provided to You are coterminous with the Term stated in the relevant Order Form.
Capitalized terms not defined but used herein have the meaning assigned to such terms in the Terms. In the event of any conflict between this SLA and the Terms, the Terms shall control unless clearly stated otherwise in this SLA.
“Action Plan” means a formal verbal or written description of the tasks to be undertaken by Aptitude 8 and You to diagnose, triage, and address Malfunctions, along with an approximate timeframe for the processing and completion of tasks.
“Initial Support Request” means the initial support request submitted by Your designated representative support contact to report a suspected Malfunction.
“Interoperability” means a Malfunction caused by an interoperation of the Aptitude 8 Services with a software component within Your environment.
“Maintenance Window” means Friday through Sunday between 9pm PST and 7am PST.
“Malfunction” means any error or other condition that prevents the Aptitude 8 Services from performing substantially in accordance with the operating specifications in the then-current Documentation, but excluding Interoperability caused by a Malfunction Exception.
“Malfunction Exception” means an Aptitude 8 Services component Malfunction caused by any abuse, misuse, or unauthorized use of the Aptitude 8 Services by You, or any unauthorized combination of the Aptitude 8 Services with any software or hardware components, or other item not reasonably expected to be combined with and/or interoperate with the Aptitude 8 Services or an Interoperability beyond Aptitude 8’s reasonable control.
“Resolution means a solution that renders the Aptitude 8 Services substantially in conformity with the Documentation.
“Response” means Aptitude 8’s personnel’s response via outbound email, web, or phone consultation to Your designated support contact, acknowledging receipt of an Initial Support Request.
“Support Hours” means Monday through Friday between 9am PST and 5pm PST.
“Workaround” means a temporary solution or a configuration that renders the Aptitude 8 Services reasonably functional for their intended purpose until a Resolution is available, subject to any remaining Interoperability issues.
SCOPE OF SUPPORT SERVICES
Aptitude 8 provides Support Services for its most current version of the Aptitude 8 Services (including all Workarounds thereof). Provided You are in compliance with all applicable terms of this SLA and the Terms, and have paid all applicable Fees, Aptitude 8 will provide the Support Services set forth herein to You. In addition, Aptitude 8 will provide, upon Your request, reports on the status of the Support Services requested by You.
Support Services consist of: (a) reasonable web and email support (all Support Services provided in English); and (b) reasonable efforts to provide Workarounds and Resolutions.
Support Services do not include: (a) support with respect to hardware on which the Aptitude 8 Services or any portion thereof may be accessed or used; (b) support with respect to Malfunction Exceptions; or (c) any monitoring and/or incident response services. Aptitude 8 has no obligation to develop any particular Workarounds, and products/solutions marketed by Aptitude 8 as separate products, or as upgrades for which an additional fee is generally charged, are not considered a Workaround.
SUPPORT SERVICE PROCESS
Your Responsibilities: Before contacting Aptitude 8 with an Initial Support Request, You undertake to: (a) analyze the Malfunction to determine if it is the result of a Malfunction Exception; (b) ascertain that the Malfunction can be replicated; and (c) collect and provide to Aptitude 8 all relevant information relating to the Malfunction. For any Priority 1 Malfunctions, You must submit an Initial Support Request via phone.
Our Response: Upon receiving Your Initial Support Request, our qualified personnel will use commercially reasonable efforts to provide a Response within the Response Time detailed in the Priority levels and communication channels detailed in the table below. For Priority 1 Malfunctions, Response Time will be measured from Your phone call. Following our initial Response, our support representatives will explore the nature of the Malfunction experienced by You and its effect on the Aptitude 8 Services, and reasonably assign a priority level to the Malfunction in accordance with definitions in the table below. A Response Time is a guarantee of communication timeframes, and Aptitude 8 does not guarantee a Workaround or Resolution within these timeframes. Aptitude 8 will make commercially reasonable efforts to reach an Action Plan within a reasonable time after the Response.
Support Services Workflow: Aptitude 8 will use commercially reasonable efforts to provide You with: (a) a Workaround within a reasonable time after an Action Plan has been established; and (b) a Resolution within a reasonable time thereafter, also considering Aptitude 8’s release schedule and severity of the Malfunction.
In providing Support Services, Aptitude 8 support personnel may interact with the Your Accounts, review application data within such Accounts, and otherwise exchange relevant information with You as needed to provide such Support Services.
No Obligations for Malfunction Exceptions: Aptitude 8 has no obligation to provide Support Services, Workarounds or Resolutions with respect to any Malfunction Exception.
PRIORITY LEVELS AND RESPONSE TIMES
(within 95% of the time during each calendar month)
1 – Urgent
You report a Malfunction that: (a) renders the Aptitude 8 Services inoperative or intermittently inoperative; (b) causes any material Aptitude 8 Services feature to be unavailable or substantially impaired; or (c) causes a complete failure of the Aptitude 8 Services
2 – High
You report a Malfunction that: (a) renders a required program or feature of the Aptitude 8 Services inoperative or intermittently inoperative; or (b) substantially degrades performance in a production environment.
3 – Normal
You report a Malfunction that: (a) renders an optional program or feature inoperative or intermittently inoperative; or (b) causes only a minor impact on Your use of the Aptitude 8 Services
4 – Low
You report a Malfunction that has only a minor effect on the Aptitude 8 Services or submit inquiries and questions about configuration and management of the Aptitude 8 Services.