APERIAN GLOBAL, INC
Effective Date: 19 September 2023
1. Provision of Services. Aperian will make the Services available to you pursuant to this Agreement and provide applicable support via email during regular business hours at firstname.lastname@example.org. Aperian will use commercially reasonable efforts to make the Platform and Content available 24 hours a day, 7 days a week, but offers no guarantee of their availability under this Agreement. Aperian will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data (defined below). Aperian may change the features and functionality of the Services at any time.
2. Use of Services. Use and access of the Services is permitted only by you and such individuals as are authorized by you (including clients and students) to use the Services (collectively, “Users”) for internal business and education purposes only. Users may only use the Services in accordance with any subscription or other usage limits shown at the time of purchase (“Usage Capacity”). You are responsible for ensuring compliance by all Users with the terms and conditions of this Agreement and that such use will not exceed the Usage Capacity. If your and your Users use of Services exceeds Usage Capacity you agree to pay any additional fees associated with the excess Usage Capacity. Each User will receive a username and password for accessing the Services. You will (a) be responsible for ensuring the security of your account and confidentiality of all User usernames and passwords, (b) prevent unauthorized access to, or use of, the Services, and (c) notify Aperian promptly of any unauthorized use of the Services or any breach, or attempted breach, of the security of the Services. If you are using a free version of the Services, we may revoke your access at any time for any or no reason at all.
3. Restrictions. You will not (and will ensure that each User does not): (a) make any Service available to anyone other than you or Users, or use any Service for the benefit of anyone other than you or your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or in violation of any other law or regulation, (d) interfere with or disrupt the integrity or performance of any Service, (e) attempt to gain unauthorized access to any Service, (f) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, or (g) frame or mirror any part of any Service, (h) disassemble, reverse engineer, or decompile a Service.
4. Platform License. Aperian hereby grants you and your Users the right to access and use the Platform in accordance with the terms and conditions herein solely for your and your Users internal business and education purposes. If you have purchased any Software then, subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferable license to download, install and use the Software for the duration of the subscription you have purchased.
5. Suspension of Services. Aperian may suspend any of the Services immediately upon notice to you for cause if: (a) you or a User breaches any provision of this Agreement; (b) there is an unusual and material spike or increase in your use of the Services that Aperian believes is fraudulent or negatively impacting the operation of the Services; (c) Aperian determines that its provision of the Services is prohibited by applicable law or (d) there is any use of the Services by you or Users that in Aperian's judgment threatens the security, integrity or availability of the Services. Aperian will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
6. Ownership. Aperian owns the Services and all materials relating to and provided through them. You acknowledge and agree that (a) the Services and related materials are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or confidential rights laws, (b) Aperian retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Services and materials, any and all related and underlying technology, algorithms, processes, methodologies and any derivative works or modifications of any of the foregoing, (c) there are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Aperian, and (d) the Software and access to the Services are licensed, not sold and you acquires no ownership or other interest (other than the license rights expressly stated herein) there. The trademarks, service marks and logos of Aperian used in the Services (“Trademarks”) are Aperian’s sole property, or the property of their respective owners and you receive no right to use any Trademarks without Aperian’s prior written permission.
8. Confidentiality. Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”). Aperian’s Confidential Information includes non-public information regarding features, functionality and performance of the Services. Your Confidential Information includes Your Data. Receiving Party shall: (i) take reasonable precautions to protect such Confidential Information, (ii) not use or disclose Confidential Information to any third party except in connection with performance or use of the Services. Confidential Information shall not include information that Receiving Party can document (a) is or becomes generally available to the public without breach of this Agreement, or (b) was or comes into its possession from a third party without restriction or violation of a duty of confidentiality. Receiving Party may disclose Confidential Information in response to a valid court order or similar legal process provided that it gives Disclosing Party notice of the order and permits Disclosing Party to challenge or limit the order.
9. Feedback. You may, from time to time, provide suggestions, comments or other feedback with respect to the Services (“Feedback”). You agree that all Feedback is and will be given entirely voluntarily. You hereby grant Aperian a royalty-free, worldwide, perpetual, irrevocable license to use and exploit any Feedback in any manner as long as you are not identified as the source.
10. Fees and Payment Terms. You shall pay all applicable fees associated with your purchase of the Services. Fees are non-refundable and non-cancellable. Aperian may modify or introduce new fees when required by changes in its business or Services offerings. Any new or revised fees will become effective upon the next Renewal Term (defined below). You will provide Aperian with valid credit card information, or with a valid purchase order or alternative document reasonably acceptable to Aperian. If you provide credit card information you authorize Aperian to charge such credit card for all fees for Services. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated at the time of purchase. If the Services are purchased other than by credit card, Aperian will invoice you in advance and you will pay invoiced fees net 30 days from the invoice date. You shall be responsible for all taxes associated with your purchases other than taxes on Aperian’s net income. Any late payments may accrue interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower.
11. Term and Termination. This Agreement shall remain in effect for the term identified at the time of purchase of the Services (“Initial Term”) and will automatically renew for additional terms of one year (each a “Renewal Term”) unless either party elects not to renew by giving at least thirty (30) days written notice prior to the end of the then current term. Either party may terminate this Agreement if the other party materially breaches it and fails to cure such breach within ten (10) days after receiving written notice of such breach. The Agreement will terminate immediately if a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of this Agreement for any reason, all licenses shall terminate, each party will return or destroy the other party’s Confidential Information, you shall pay all fees that accrue up to the date of termination, and you will cease to use or access any of the Services. You understand that following termination you and your Users will have no further access to Your Data input into the Services and Aperian may delete any such data. All terms of this Agreement that by their nature would be expected to survive shall survive its termination.
12. Warranties. Each party represents and warrants that it has the right to enter into this Agreement and has all rights, licenses, consents and permissions needed to provide any of the materials provided hereunder (including, without limitation, the Services and Your Data). Aperian warrants that the Services will perform materially in accordance with the applicable documentation. As your sole remedy for a breach of this warranty Aperian will use reasonable efforts to correct such breach and if Aperian fails to do so within thirty (30) days report of the breach, then either party may terminate this Agreement and Aperian will refund to you any pre-paid, unused fees for the Services. These procedures are your exclusive remedies and Aperian’s sole liability for breach of these warranties.
13. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14.1. By Aperian . Aperian will defend any third party claim or action brought against you to the extent based on the allegation that the Services infringe any United States intellectual property right and will pay any settlements that Aperian agrees to or damages finally awarded by a court of competent jurisdiction. The foregoing obligations do not apply to the extent the claim or action is based on: (a) materials not provided by Aperian, (b) combination of the Services with other materials where the alleged infringement relates to such combination or (c) where use of the Services is not in accordance with this Agreement. If your use of the Services has become, or in Aperian’s opinion is likely to become, the subject of any claim of infringement, Aperian may at its option and expense, (a) procure for you the right to continue using and receiving the Services as set forth hereunder, (b) replace or modify the Services to make it non-infringing, (c) substitute an equivalent for the Services or (d) if Aperian, in its sole and absolute discretion, determines that options set forth above are not commercially practicable, terminate this Agreement and refund you any pre-paid, unused fees for the Services.
14.2. By you. You will defend any third party claim or action brought against Aperian to the extent based on Your Data or relating to how you use the Services and any results from the Services, and you agree to pay any settlements that you agrees to or damages finally awarded by a court of competent jurisdiction.
14.3. Procedures. Each party’s indemnification obligations are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, (b) granting the indemnifying party the sole control of the defense or settlement of the claim and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense.
14.4. SOLE REMEDY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION STATES APERIAN’S SOLE LIABILITY AND YOUR SOLE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
15. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, NEITHER PARTY WILL BE LIABLE HEREUNDER FOR ANY CLAIM, WHETHER ARISING IN CONTRACT, TORT OR STRICT LIABILITY OR ANY OTHER LEGAL THEORY, (A) FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR REVENUE, OR (B) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16. Export. In its use of the Services, you agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) you represents and warrants that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, and (ii) you will not (and will not permit any Users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
17. General Terms. You and Aperian are and at all times shall be and remain independent contractors as to each other. At no time shall either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency, or other similar relationship shall be created or implied by virtue of this Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. You may not assign, transfer, or sublicense this Agreement without Aperian's prior written consent. Any purported assignment, delegation or transfer in violation of this provision is void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and directed to the address provided on the Aperian website or otherwise provided to the other party in writing. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Exclusive jurisdiction for any claim brought hereunder shall be the applicable courts located in San Francisco and each party irrevocably submits to the exclusive jurisdiction of such courts. Aperian reserves the right to use your name as a reference for marketing or promotional purposes on Aperian’s website. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument.