This Apptentive Master Service Agreement (“Agreement”) is entered into by and between Apptentive, Inc., a Delaware corporation with at 24 Roy St. #440, Seattle, Washington, 98109 (“Apptentive”), and the customer identified on one or more applicable Orders (“Customer”). This Agreement sets forth the terms pursuant to which Customer will be permitted to use certain of Apptentive’s web-based services. The parties agree as follows.
1. Apptentive Service.
1.1 Rights to the Service. Subject to the terms and conditions of this Agreement and any additional restrictions or limitations set forth in an applicable order referencing this Agreement (each, an “Order”), Apptentive hereby grants Customer a non-exclusive, non-transferable, worldwide right and license during the Term to access the Apptentive service described in the applicable Order at the Monthly Active User level described in the applicable Order (the “Service”). For the purpose of this Agreement, “Monthly Active User” (“MAU”) means the aggregate number of unique devices that have launched an applicable app identified (and captured by) the Supplier API that is integrated into Customer’s mobile applications over a rolling 30 days subject to reasonable approval and audit from Customer. The term “Seat License” as used in an Order means a single authorized user of Customers that may access and use the applicable product or service. Customer may change its authorized per-seat users from time to time by providing written notice to Apptentive. Per Seat Licenses are offered on a tiered pricing basis. If Customer adds additional Seat Licenses mid-way through a given subscription term, the prorated fee for the remainder of the term will applied based on the pricing tier applicable to the new number of Seats. In the event that Customer exceeds the limits on the number of MAU or Seat Licenses specified in an applicable Order, unless otherwise set forth in the applicable Order, Apptentive will invoice Customer, and Customer shall pay for such excess use at a rate of (i) $50 per month per Seat License, and (ii) $0.025 per month for each MAU.
1.2 Updates. At no charge to Customer, Apptentive shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same license terms and conditions of this Agreement.
1.3 API Key Access. Apptentive will provide, within two (2) business days of the Effective Date of the applicable Order, a unique API-Key and provide access to the Service. Such key will uniquely identify Customer in Apptentive’s database. Customer shall be responsible for maintaining the confidentiality of such API-Key and will be responsible for any activity using such key.
1.4 Access Protections. The SDK/API collects Data to be stored on Apptentive’s secure servers. Apptentive will have mechanisms in place to reasonably secure the data collected against theft and unauthorized access.
1.5 Restrictions and License Conditions. Customer shall not, directly, indirectly: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Apptentive technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Apptentive products and services; (f) alter, remove or modify any proprietary marks, images or terms of use included in or displayed as part of the Service; (g) circumvent or disable any security features or functionality associated with Service; or (h) use the Service in any manner prohibited by law.
1.6 Reservation of Rights. Apptentive, its suppliers and licensors reserve all rights not expressly granted to Customer.
1.7 Delivery of Service and Materials. The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.
2. SDK License.
2.1 The Apptentive SDK is an open-source segment of software code (the “Apptentive SDK”). Apptentive grants to Customer a limited, non-exclusive, non-transferable, royalty-free license to use, incorporate, modify and distribute the Apptentive SDK within the Customer application(s) described in the applicable Order, subject to the limitations set forth in this Agreement and the provisions of the BSD 3-Clause License. For more information about BSD 3-Clause, see: http://opensource.org/licenses/BSD-3-Clause.
2.2 Customer shall bear all costs of integrating the Apptentive SDK into the Customer application(s) described in the applicable Order, including but not limited to, software design, software development, application debugging, application testing, and network connectivity. Customer shall ensure the Apptentive copyright notice and BSD 3-Clause License agreement is not removed from the Apptentive SDK and that both are included in each module that the Apptentive SDK resides.
2.3 Upon the expiration or termination of this Agreement for any reason, Customer must remove any API-Keys provided by Apptentive from the SDK [within thirty (30) days]. Customer may retain a copy of the SDK under the license described above, however, for the avoidance of doubt, the SDK will not function with the Apptentive Service without a valid API-Key.
3. Services.
Additional support services, including custom configuration, consulting and development may be separately purchased from Apptentive under the terms of a statement of work executed by the parties as an addendum to this Agreement. For clarity, Apptentive has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting or third party technologies and services unless agreed to in writing via an approved Order and or statement of work.
4. Customer Obligations.
4.1 Fees and Payment Terms. In consideration of the rights and licenses granted herein, Customer shall pay Apptentive the fees specified in any agreed upon Order, including the initial Order incorporated into this Agreement (“Fees”). Unless otherwise specified in the applicable Order or herein, all Fees are due within thirty (30) days of invoice. Any subscription fees specified in the Apptentive License Order Form (“Order”) (separate document) are due and must be received by Apptentive on or before the first day of the calendar month that Service is provided (“Start Date”). In the event that any Fees are not paid when due, Apptentive may suspend access to the Service, with or without notice, at Apptentive’s sole discretion, and a 10% late fee will be imposed with respect to any unpaid amounts. In the event that Customer account is more than thirty days in arrears, Customer will pay interest on such overdue amounts at a rate of 1.5% per month (or the maximum permitted by law). In the event of Service suspension due to non-payment, if Customer wants to re-start the Service, all back fees plus another initial setup fee must be paid prior to the re-start. Notwithstanding any terms above, if Apptentive terminates for non-payment, that does not relieve Customer from paying all fees (including back fees, remaining fees for the agreed upon Term, late payments and interest) agreed to herein.
(a) If Customer paid any of the fees herein and that payment cannot be credited to Apptentive for any reason (including but not limited to insufficient funds), (i) Apptentive may turn-off or restrict Service, (ii) Apptentive may immediately terminate Agreement, in accordance with Section 5 of this Agreement, and/or (iii) Customer shall immediately pay such fee plus any and all fees imposed to Apptentive by third party financial institutions. To the extent that Apptentive incurs any payment processing fees associated with Customer’s purchase, these payment processing fees will borne by Customer and may be automatically included in the applicable payment transaction.
(b) Apptentive will provide to Customer all invoices required for payment. Invoice requirements will not excuse Customer from the timely payment terms herein.
(c) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Apptentive is required to pay Surcharges on Customer’s behalf, Customer shall promptly reimburse Apptentive for all amounts paid. In the event Apptentive is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney’s fees. Apptentive may make changes to the pricing under Agreement by providing Customer with notice at least sixty (60) days in advance of the expiration of the then-current contract Term. Such changes in pricing will be effective upon renewal. Notice for the purpose of this subsection will be provided as set forth in Section 9 below, or by email to the email address associated with Customer’s account.
(d) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable.
(e) During the term of this Agreement and for a period of one (1) year thereafter, Customer shall not recruit or enter into any consulting or employment relationship with anyone employed with Apptentive during the Term of this Agreement.
(f) Customer has no obligation to give Apptentive any suggestions, comments or other feedback (“Feedback”) relating to the Service or other current or potential Apptentive products or services. However, Apptentive may use and include any Feedback that Customer provides to improve the Service or other Apptentive products, services, software and technologies. Accordingly, if Customer provides Feedback, Customer grants Apptentive and its affiliates and subsidiaries a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to, directly or indirectly, use, reproduce, license, sublicense, distribute, make, have made, sell and otherwise commercialize the Feedback in the Service or other products, services, software and technologies.
(g) Customer will: (a) allow Customer name and logo to be used in Apptentive marketing and advertising materials and posted on Apptentive web site, subject to compliance with Customer’s brand guidelines or specifications regarding logo usage; (b) permit Apptentive to create and publish a written and/or video customer success story describing Customer’s use of the Service and benefits derived for Customer’s consumers and business, subject to Customer approval of final story prior to publication; (c) make one or more representatives reasonably available for reference inquiries from other potential Apptentive customers, partners, and investors; (d) permit Apptentive to issue and publish a press release containing a quotation from a representative of Customer describing the general context of the intended use and the benefits derived by Customer, subject to Customer approval of final text prior to publication.
5. Term and termination.
5.1 Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the State Date of the applicable Apptentive Order and shall continue thereafter for the Initial Term specified in Apptentive Order (the “Initial Term”). If no Initial Term is specified in the applicable Order, the Initial Term will be one-year from the Start Date.
5.2 Auto Renew: Unless otherwise specified in the applicable Order, this agreement and Customer’s Orders will automatically renew for additional one-year renewal terms unless either party provides written notice of its intention not to renew to the other party at least ninety (90) days prior to expiration of the current term. In the event that Apptentive increases Fees in an applicable renewal term by more than 2.5%, Apptentive will notify Customer at least one hundred and twenty (120) days prior to the expiration of the then current term. Fee increases of 2.5% or less in a given renewal term may be made by Apptentive and will be binding on Customer if reflected on Apptentive’s invoice for such renewal term.
5.3 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within ninety (90) days of providing notice thereof.
5.4 Effect of Termination. Upon expiration or termination, Customer shall discontinue all use of the Service, and return any and all software and documentation provided by Apptentive.
6. CONFIDENTIALITY.
6.1 Confidentiality. Each party agrees that, without the express consent of the other party, none of its employees or agents will disclose to any third party any information or material that the other party designates as confidential (including without limitation the terms and conditions of this Agreement) unless such information or material (a) is or becomes publicly known through no wrongful act of the receiving party, (b) is received from a third party without restriction and without breach of any confidentiality obligation to the other party, (c) is independently developed by the receiving party, or (d) is required by law to be disclosed (provided that the other party is given advance notice of, and an opportunity to, contest any such requirement).
6.2 Customer Data. As between the parties, Customer Data will be and remain the property of Customer. Upon termination or expiration of this Agreement or the applicable Service Order will make Customer’s conversations and surveys stored on the Service available to Customer for download for at least thirty (30) days. Apptentive may not use Customer Data for any purpose other than to render the Service under this Agreement or as otherwise expressly permitted herein. No Customer Data may be sold, assigned, leased or otherwise disposed of to third parties or commercially exploited by or on behalf of Apptentive. Apptentive may not possess or assert any lien or other right against or to Customer Data. Upon termination or expiration of this Agreement or any Service Order hereunder, all conversations and surveys contained within the Customer Data will be made available to Customer as described above. Within sixty (60) days after disconnecting Customer’s access to and use of the Service, Apptentive will delete all Customer Data in Apptentive’s system and shall provide written confirmation thereof upon request from Customer. Notwithstanding the foregoing, Apptentive has permission to take the Customer’s Data (“Source-A”) and create an Extracted Data source (“Source-E”). Source-E will (i) not include any PII, (ii) be impossible to attribute or identify the source of this data back to the Customer, (iii) be blended with other similar Sources from other Apptentive customers. Apptentive will use the aggregate combination of Source-E Data gathered from other Apptentive customers for the purpose of creating statistically relevant information which can be used to improve Apptentive’s products and services, and for research purposes. Apptentive may retain Source-E data after termination of this Agreement and publish derivative works of such data, provided that such derivative works are anonymized and do not identify the Customer. Apptentive will not sell any identifiable or attributable Customer Data.
7. Indemnification.
7.1 Customer. Customer shall indemnify and hold Apptentive, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 1 or 4 of this Agreement.
7.2 Apptentive. Apptentive shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out a third party claim that Apptentive’s Service or the Apptentive SDK infringe or misappropriate any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement. Apptentive shall have no indemnification obligation, and Customer shall indemnify Apptentive pursuant to this Agreement, for claims of infringement arising from the combination of Service with any of Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Apptentive software not expressly authorized herein.
7.3 Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
8. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
8.1 Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND ANY SOFTWARE PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APPTENTIVE, ITS SUPPLIERS AND ITS LICENSORS.
8.3 Force Majeure. Customer acknowledges and agrees that Service may be subject to interruption, limitations, delays, and other problems inherent in the use of Internet applications and electronic communications. Apptentive is not responsible for any such delays, delivery failures, or any other damage resulting from events beyond APPTENTIVE’S reasonable control, without regard to whether such events are reasonably foreseeable by APPTENTIVE.
8.4 Limitation. CUSTOMER’S EXCLUSIVE REMEDY AND APPTENTIVE’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY APPTENTIVE HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY LEADING UP TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES APPTENTIVE, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT APPTENTIVE’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
8.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL APPTENTIVE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
9. Notices and Requests.
Either party may give notice to the other party by means of electronic mail to the primary contact designated on the applicable Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. In the event Customer desires to increase its allocated MAU’s as described in the applicable Order, Customer may purchase such rights via telephone, facsimile or e-mail. E-mail or other writing from Apptentive confirming such order shall be deemed sufficient to modify monthly active user allotment set forth in the Order. All additional access purchased by Customer during the Term shall be subject to the terms of this Agreement, including the prices set forth in the Order. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 10, below.
10. Additional Terms.
With the exception of expanding the number of monthly active users allocated to under Section 9, Apptentive shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Apptentive and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
11. General.
This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. Apptentive may reference Customer as a customer, including in Apptentive’s public facing customer list and in discussions with potential investors. This Agreement shall be construed without regard to the party responsible for the preparation of the same, and shall be deemed to have been prepared jointly by the Parties. Any ambiguity or uncertainty existing herein shall not be interpreted against either Party, but according to the application of other rules of contract interpretation. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Executed copies of this Agreement may be delivered by facsimile or digitally. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Apptentive to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement, together with its exhibits, comprise the entire agreement between Customer and Apptentive and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
