Terms of Service
ADAPTIV.IO SOFTWARE AND SERVICES AGREEMENT
Last Updated: January 9, 2015
This Adaptiv.IO Software and Services Agreement (“Agreement”) is entered into by and between adaptiv.io, Inc. (“ Adaptiv”) and you (“you” or “Customer”).
BY CLICKING THE “SIGN UP” BUTTON OR BY OTHERWISE ACCESSING OR USING THE SERVICES (DEFINED BELOW), YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE HEREIN. IF YOU ARE USING THE SERVICES ON BEHALF OF A LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” OR “YOU” WILL REFER TO SUCH ENTITY.
Adaptiv and Customer (together, the “Parties” and individually, a “Party”) hereby agree as follows:
Whenever used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms will have the following meanings:
“Account” means any account created by or on behalf of Customer via the Website to access or use the Services.
“Adaptiv Software” means any software development kit or application programming interface of Adaptiv that may be integrated within an
application of Customer for the purpose of enabling Customer’s use of the Services.
“Authorized User” means any individual that uses the Services by or on behalf of Customer, including any employee or agent of
“Customer App” means any application of Customer into which Adaptiv
Software has been integrated.
“Customer Data” means Customer’s electronic data, logos, images, text, or other materials that are transmitted, stored, retrieved or
processed by Customer in, to or through the Services, including, without limitation, any End User Data.
“End User” means any individual who uses or otherwise interacts with any Customer App.
“End User Data” means any Customer Data that contains any information about or relating to any End User or the End User’s device.
“Documentation” means the documentation, instructions, user guides and other documents made available by Adaptiv that relate to the
Adaptiv Software and Services.
“Proprietary Materials” means the Adaptiv Software and Services, including, without limitation, any and all content,
URLs, domain names, technology, software, code, user interfaces, “look and feel” and other items posted or accessible thereon, other than Customer
“Services” means the Website and Adaptiv’s hosted online platform, technology and services made available via the Adaptiv Software and
“Website” means Adaptiv’s proprietary websites, including the adaptive.io domain and all related subdomains, as
may be updated, modified or revised from time to time.
2. Access and Use of Proprietary Materials
2.1 Adaptiv Software. Subject to Customer’s compliance with the terms of this Agreement, Adaptiv hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable and revocable license to (a) incorporate Adaptiv Software into any Customer application and distribute (in object form only) such Adaptiv Software solely as incorporated within such Customer application; and (b) make and use a reasonable number of copies of any Documentation solely to facilitate the exercise of its rights under this Agreement.
2.2 Services. Subject to the terms and conditions of this Agreement, Customer may access and use the Services solely for Customer’s internal use in the regular course of its business.
2.3 Restrictions. Other than as expressly authorized under this Agreement, Customer will not, and will not assist, authorize, permit or encourage any third party to: (a) allow any unauthorized party to access or use the Services via the Account; (b) reverse engineer, decompile or disassemble any source code or otherwise attempt to discover any source code or trade secrets related to any of the Proprietary Materials; (c) distribute, license, rent, sell, retransmit, publish, lease or otherwise transfer or disclose any Proprietary Materials to any third party; (d) modify, or create derivative works based on, any of the Proprietary Materials; (e) work around any technical limitations in any Proprietary Materials; (f) remove or alter any proprietary notices or labels on or in any Proprietary Materials; (g) use any Proprietary Materials in connection with the development or transmission of any virus or malicious code; (h) use any Proprietary Materials in any way that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Adaptiv or any third party; or (i) access or use any Proprietary Materials in order to develop a competitive service or product.
2.4 Account Credentials. Customer shall create a user name and password to access the Services via its Account (“ Account Credentials”). Customer is fully responsible for the acts and omissions of its Authorized Users and for all activities undertaken through the use of its Account Credentials. Any activities undertaken through the use of Account Credentials will be deemed to have been performed by Customer. Customer will immediately notify Adaptiv of any unauthorized access or use of Account Credentials or any other breach of security associated with the Services that is known to, or reasonably suspected by, Customer.
2.5 Equipment. Customer is solely responsible for providing and maintaining at its own expense all equipment, software, services and other items necessary to access and use the Adaptiv Software and the Services (including, without limitation, computer hardware and software, modems, telephone service and internet access).
2.6 Compliance with Law. Customer will comply with, and ensure that its Authorized Users comply with, all laws, rules and regulations applicable to Customer and its Authorized Users’ access and use of the Services. Without limiting the generality of the foregoing, Customer shall be solely responsible for ensuring that any messages or other communications distributed via the Services by Customer are in compliance with all applicable laws, rules and regulations, including, without limitation, those applicable to commercial emails, contests and sweepstakes. Customer acknowledges and agrees that it uses the Services, and all materials made available therein, at its own risk. As between Customer and Adaptiv, Customer is solely responsible for providing any notices to and obtaining any consents from any End Users as may be required under any applicable laws and regulations (including, without limitation, the Children’s Online Privacy Protection Act and the rules promulgated thereunder) to allow Adaptiv to process End User Data via the Adaptiv Software and Services in accordance with the terms of this Agreement. Customer will not cause Adaptiv to be in violation of any applicable laws, rules or regulations.
2.7 Customer Representations and Warranties. Customer represents and warrants that (a) it has all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (b) the Customer Data and the Customer App do not, and shall not, infringe, violate or misappropriate any third party’s rights.
2.8 Customer App Security. Customer is fully responsible for any Customer App, including for maintaining the security of any Customer App. Customer will use industry standard security measures to prevent unauthorized access to or use of any of the features and functionality of any Customer App, including access by viruses, worms, or any other harmful code or material. Customer will immediately notify Adaptiv if Customer knows of or suspects any breach of security or potential vulnerability of any Customer App that may damage, interfere with or otherwise impact any Proprietary Materials. Customer will promptly remedy such breach or potential vulnerability.
3. Customer Data
3.1 License to Customer Data. Customer hereby grants Adaptiv a nonexclusive, royalty-free and worldwide license to (a) use, reproduce, publish, distribute, perform and publicly display the Customer Data, in whole or in part, via the Services, and (b) use and share Customer Data in a form that does not reasonably allow any other party to determine the identity of Customer or any End User.
3.2 Responsibility for Customer Data. Customer is fully responsible for any Customer Data, including, without limitation, for any collection, use or sharing of any End User Data. Without limiting the generality of the foregoing, Customer shall provide all required notices and obtain any necessary consents required under any applicable law, rule or regulation in connection with Customer’s collection, use or sharing of End User Data, including via the Adaptiv Software and the Services. Customer is responsible for creating backups of any Customer Data, and Adaptiv will have no obligation to export or return Customer Data.
4. Management of Services
4.1 Performance. Adaptiv shall use commercially reasonable efforts to provide the Services in accordance with the terms of this Agreement. If any errors occur via the Services, Customer agrees that its sole remedy with respect to such errors is that Adaptiv will resolve such errors within a reasonable period of time. If such errors are not resolved to Customer’s satisfaction, Customer’s sole remedy will be to terminate this Agreement in accordance with Section 7.2 of this Agreement.
4.2 Monitoring; Audit. Adaptiv reserves the right to monitor Customer’s usage of the Services and audit Customer’s systems for compliance with this Agreement.
4.3 Updates. Notwithstanding anything to the contrary in this Agreement, Adaptiv reserves the right, in its sole discretion, to modify the functionality, or features or release a new version of, the Proprietary Materials from time to time without compensation or liability to Customer. If Adaptiv prompts Customer to install an updated version of any Adaptiv Software, Customer must cease use of the previous version of such Adaptiv Software and only utilize such updated version in connection with any Customer App.
4.4 Suspension. Adaptiv reserves the right to immediately suspend or disable Customer’s access to or use of the Services, without notice or liability to Customer, if Adaptiv believes: (a) that the Services are being used in breach of this Agreement; (b) that Customer’s use of the Services represents a direct or indirect threat to the network function or integrity of the Services; (c) such suspension is necessary to prevent unauthorized access to or harm to Customer Data or data of other Adaptiv customers; or (d) such suspension is necessary to comply with Adaptiv’s legal obligations.
5.1 Fees. Customer will pay Adaptiv the fees, charges and other amounts (a) specified in the online schedule of fees via the Website during Account creation, which may be modified from time to time with advance notice of Adaptiv (either via the Services or via email), or (b) set forth in a writing signed by the Parties (“Fees”). All Fees are quoted and payable in United States dollars.
5.2 Payment. Only valid payment methods acceptable to Adaptiv, as indicated via the Services (“Payment Method”), may be used by Customer to pay Fees. Customer authorizes Adaptiv, or its designated payment processor, to charge the Payment Method in accordance with the recurring payment plan selected by customer via the Services. Customer may revoke its authorization for future automatic recurring payments at any time by modifying its payment options via the Account provided that any such revocation will not become effective until the end of the applicable billing period (as identified via the Account). Customer must maintain current Payment Method information at all times. If the Payment Method cannot be verified, is invalid, or is not otherwise acceptable to Adaptiv, your access to the Services may be suspended or cancelled automatically. In addition to recurring payments, Customer authorizes Adaptiv to charge the Payment Method for any usage or other overage charges, as described in more detail via the services. Notwithstanding the foregoing, Customer authorizes Adaptiv, or its designated payment processor, to charge the Payment Method in the amount of any outstanding balance of Fees that may be payable to Adaptiv upon the termination of the Services or this Agreement. All Customer payment obligations under this Agreement are non-cancelable and non-refundable. Any Fees not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily until the date paid.
5.3 Taxes. The Fees payable to Adaptiv under this Agreement do not include any taxes, fees, duties or other charges assessed or imposed by any governmental authority. Customer will pay or reimburse Adaptiv for all such governmental charges upon demand or provide certificates or other evidence of exemption; provided, however, that Adaptiv will be responsible for paying any income taxes imposed on Adaptiv.
6. Proprietary Rights
6.1 Proprietary Materials. Subject to the license granted by Adaptiv to Customer under Section 2.1 of this Agreement, Adaptiv and its licensors retain all right, title and interest in and to the Proprietary Materials and any intellectual property or proprietary rights therein.
6.2 Customer Data. Subject to the license granted by Customer to Adaptiv in Section 3.1, Customer reserves all right, title and interest in and to the Customer Data.
7. Term and Termination
7.1 Term. This Agreement will be in effect until terminated earlier by Adaptiv or Customer under the terms of this Agreement.
7.2 Termination for Convenience. Either Party may terminate this Agreement immediately upon notice to the other Party. Adaptiv will provide any such notice of termination in accordance with Section 11.2 of the Agreement. Customer will provide any such notice of termination via email to email@example.com.
7.3 Effect of Termination. Upon termination of this Agreement, unless otherwise specifically provided for in writing by the Parties, the following will apply: (a) the licenses granted under this Agreement will immediately terminate; (b) Customer will promptly pay any outstanding Fees accrued prior to the effective date of termination; (c) any and all liabilities accrued before the effective date of the termination will survive; and (d) Sections 1, 5, 6, 7.3, and 8 – 11 will survive.
8. Disclaimer of Warranties
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE ADAPTIV SOFTWARE AND THE SERVICES IS AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTION, QUALITY, PERFORMANCE, SAFETY, AND ACCURACY IS WITH CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ADAPTIV SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ADAPTIV HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE ADAPTIV SOFTWARE AND THE SERVICES, EITHER EXPRESS, IMPLIED OR ARISING BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ADAPTIV DOES NOT WARRANT THAT THE ADAPTIV SOFTWARE OR THE SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE ADAPTIV SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY ADAPTIV OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
9.1 Indemnity. Customer will defend, indemnify and hold harmless Adaptiv from and against any claims, actions, demands, losses, judgments, fines or expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s breach or alleged breach of this Agreement; or (b) any Customer Data.
9.2 Procedure. In the event of any claim described in Section 9.1, Customer will: (a) provide Adaptiv prompt written notice of the claim; (b) permit Adaptiv to control the defense and settlement of the claim; and (c) cooperate with Adaptiv in the defense and settlement of the claim.
10. Limitations of Liability.
10.1 Limitation of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ADAPTIV WILL NOT BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, REVENUE OR USE) ARISING OUT OF ANY PERFORMANCE, NONPERFORMANCE, BREACH OR DEFAULT UNDER THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE ADAPTIV SOFTWARE OR THE SERVICES UNDER THIS AGREEMENT.
10.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ADAPTIV’S LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, BUT NOT NECESSARILY LIMITED TO, ANY LIABILITY ARISING OUT OF ADAPTIV’S NEGLIGENCE OR ANY PERFORMANCE, NONPERFORMANCE, BREACH OR DEFAULT UNDER THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE ADAPTIV SOFTWARE OR THE SERVICES PROVIDED UNDER THIS AGREEMENT) WILL NOT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID BY CUSTOMER TO ADAPTIV UNDER THIS AGREEMENT WITHIN THE THREE (3) MONTHS PRIOR TO THE DATE UPON WHICH ANY SUCH LIABILITY IS FIRST ASSERTED BY CUSTOMER.
10.3 Acknowledgement. Customer acknowledges that the disclaimers and limitations of liability set forth in this Agreement have been specifically negotiated by the parties and that, without such provisions being an integral basis of the bargain between the parties, Adaptiv would not have entered into this Agreement.
11.1 Relationship of the Parties. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 Notices. Except as otherwise set forth in this Agreement, any notices required under this Agreement shall be sent to Adaptiv via e mail to firstname.lastname@example.org, and shall be sent to Customer via email to the email address maintained in Customer’s Account. Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, Adaptiv may give Customer notice by certified mail, postage prepaid and return receipt requested, to the address included in Customer’s Account or otherwise provided by Customer to Adaptiv. In such case, notice shall be deemed given three (3) days after the postmark date.
11.3 Assignment. Customer will not assign this Agreement or any of its rights under this Agreement, directly, by operation of law or otherwise, without the prior written consent of Adaptiv. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
11.4 Government Use. The Adaptiv Software is licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Adaptiv Software.
11.5 Export. Customer shall comply with all applicable United States and international export control laws and regulations. Customer specifically represents (a) that it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country and (b) that it is not identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity.
11.6 Nonwaiver. The failure of Adaptiv to insist upon or enforce performance by Customer of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of Adaptiv’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.7 Applicable Law and Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its rules relating to choice of law to the contrary. Customer and Adaptiv hereby consent to the jurisdiction of the state and federal courts located in Orange County, State of California, U.S.A., with respect to any lawsuit not subject to binding arbitration pursuant to Section 11.8 of this Agreement. Neither Party will prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
11.8 Binding Arbitration.
(a) Arbitration Procedures.
Customer and Adaptiv agree that, except as provided in Section 11.8(d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Agreement and the JAMS Rules, the terms of this Agreement will control and prevail. Except as otherwise set forth in Section 11.8(d) below, Customer may seek any remedies available to Customer under federal, state or local laws in an arbitration action. As part of the arbitration, both Customer and Adaptiv will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) Customer and Adaptiv may only litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.8(D) BELOW, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER AND ADAPTIV WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Any Claim subject to arbitration will be conducted in Orange County, California, unless the parties mutually agree to video, phone and/or Internet connection appearances.
Customer and Adaptiv agree that any arbitration shall be limited to the Claim between Adaptiv and Customer individually. CUSTOMER AND ADAPTIV AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(d) Exceptions to Arbitration.
Customer and Adaptiv agree that the following Claims are not subject to the above provisions concerning binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of Customer’s or Adaptiv’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(e) Arbitration Fees.
The party that initiates arbitration for a Claim will pay the JAMS arbitration initiation fee. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Customer and Adaptiv agree that if any portion of this Section 11.8 is found unenforceable (except any portion of Section 11.8(d)), that portion shall be severed and the remainder of this Section shall be given full force and effect. If Section 11.8(d) is found unenforceable, then neither Customer nor Adaptiv will elect to arbitrate any Claim falling within that portion of Section 11.8(d) found to be unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Orange County, California, U.S.A. and Customer and Adaptiv agree to submit to the personal jurisdiction of that court.
11.9 Events Beyond Reasonable Control. Adaptiv will not be liable under this Agreement as a result of any cause or condition beyond its reasonable control, including without limitation: fire, explosion, earthquake, storm, flood, wind, drought, and act of God or the elements; court order; act or delay or failure to act by any civil, military or other governmental authority; strike, lockout or other labor dispute; riot, insurrection, sabotage or war failure or unavailability of required equipment, supplies, goods, utilities, services or items to be provided by any third party; or any act, delay or failure to act by Customer or any third party.
11.10 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions of this Agreement will not in any way be affected or impaired. The Parties agree that if any provision is determined by any court to be invalid or unenforceable by reason of such provision extending for too great a period of time or over too broad a scope, then such provision will be interpreted to extend over the maximum period of time and the maximum scope that such court determines to be valid and enforceable.
11.11 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Adaptiv and Customer with respect to the subject matter hereof.
11.12 Modifications to Agreement. Adaptiv reserves the right to change or modify the terms of this Agreement at any time and in its sole discretion. In the event of modifications, Adaptiv will provide notice to Customer, such as by sending an email notification or posting a notice on the Services.
11.13 Identification Rights. Adaptiv shall have the right to identify Customer as a customer of Adaptiv and to use Customer’s logo on the Websites and in Adaptiv’s marketing materials.