These Terms of Service, together with any applicable Order Form and Appendices (collectively, the “Agreement”) is a legally binding agreement between you (“You” or “Customer”) and Aktapus, LLC, a Florida limited liability company, having its principal place of business at 1420 Celebration Blvd, Suite 200, Celebration, Florida 34747 (“Aktapus”), under which Aktapus provides Customer access to Aktapus’ Services. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Services, Customer (A) accepts this Agreement and agrees to be legally bound by these terms; and (B) represents and warrants that if Customer is a corporation or other legal entity, you have the right, power, and authority, to enter into this Agreement on behalf of Customer and bind Customer to this Agreement. If Customer does not agree to the terms of this Agreement, then Customer may not use the Services.
1. DEFINITIONS
Affiliate means any person or entity that controls, is controlled by or is under common control with the specified person or entity, but only so long as such control exists. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
Customer Data means all Customer registration information and other transaction data collected, processed and retained by Aktapus in connection with providing the Services.
Device means any smartphone, tablet or other mobile device that is owned or controlled by Customer.
Documentation means the user guide and other documentation and information delivered and served by Aktapus to Customer in paper, digital or electronic form if any.
Effective Date means the date Customer registered for the Services.
Order Form means the form by which the Customer may order access to the Software and applicable Services from Aktapus.
Service means the Aktapus licensed software products and service(s) as described in this Agreement or an Order Form (e.g. hosted Software as a Service) and provided pursuant to this Agreement.
Software means the object code version of the Aktapus software client to be installed and used on Devices or Systems by Customer to access the Service. Software is licensed, not sold.
Systems mean hardware, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
Updates mean any patch, revision or enhancement to the Software or Documentation delivered by Aktapus under this Agreement.
2. SERVICES
2.1 Services. Subject to all terms and conditions of this Agreement, Aktapus will use commercially reasonable efforts to provide the Services. Use of the Services by Customer shall not unreasonably interfere with use of the Services by other Aktapus customers.
2.2 Additional Services. Aktapus may offer additional services to Customer from time to time (such as, for example, other business or application services and installation, training, development or other professional services). All additional services will be subject to mutually agreeable terms and conditions as set forth in a separate writing executed by both parties.
2.3 Changes. Aktapus reserves the right to modify or discontinue any Service (in whole or in part) at any time by giving a free try’ notice to Customer. Aktapus also reserves the right to modify this Agreement at any time; such modifications will be effective when posted through the Services, on Aktapus’ website, or when Aktapus notifies Customer by other means. Customer’s continued use of the Services indicates its agreement to the modifications.
2.4 Limitations. Aktapus will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer’s Systems or Devices, (b) network, telecommunications or other service or equipment failures outside of Aktapus’ facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions, (d) any force majeure event or cause beyond Aktapus’ reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
2.5 Devices and Systems. Customer shall obtain and operate all Devices and Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Devices and Systems are compatible with the Services (and Software, if applicable) and comply with all configurations and specifications set forth in the Documentation. Customer shall maintain the integrity and security of its Devices and Systems (physical, electronic and otherwise).
2.6 Free Trial Version. If Customer registered for a free trial of the Services, Customer will have access to the Services for the specified period of the trial (“Trial Period”), subject to the terms of this Agreement. Customer must purchase the Services before the expiration of the Trial Period in order to retain access to any Customer Data provided or created during the Trial Period.
3. LICENSE
3.1 Software. If necessary to access a Service ordered and paid for by Customer, and subject to all fees, terms and conditions in this Agreement, Aktapus grants Customer a limited, nonexclusive, nontransferable license to use the corresponding Software, solely in connection with accessing such Service for its internal business purposes and, upon prior written notice to Aktapus, the internal business purposes of such of its Affiliates as agreed in writing to be bound by the terms of this Agreement. Customer may not use more than the authorized number of Users of the Software as specified in the Order Form. Customer is required to pay applicable fees for each User of the Software. Subject to Aktapus’ prior written approval and the terms and conditions of this Agreement (including without limitation, payment of additional charges at then current fees), Customer may increase its authorized use of the Software.
3.2 Documentation. Subject to all terms and conditions in this Agreement, Aktapus grants Customer a nonexclusive, nontransferable license to use the Documentation solely in connection with the applicable Service. Customer may copy the Documentation as reasonably needed to support its authorized use of the Services.
3.3 Control. Customer agrees that the Software (a) may contain code or require devices that detect or prevent unauthorized use of, or disable, the Software, (b) may be initially provisioned or later updated on Devices remotely by Aktapus and (c) may be erased from Devices remotely by Aktapus after any expiration or termination of the applicable Order Form.
4. SUPPORT AND MAINTENANCE
4.1 Support. Aktapus shall provide standard telephone support and Updates for the then current version and the immediately prior version of Software. Customer agrees that Aktapus will have the right to charge in accordance with its then current policies for any support services resulting from (a) problems, errors or inquiries relating to Devices, Systems or any other network, equipment, service or software (other than the Software) and (b) use of any Software other than the then current version or the next most recent version.
4.2 Updates. Aktapus shall have no obligation to provide Updates, except that Aktapus will provide Customer with any Update that it makes generally available without charge to its similar customers. Any Update delivered by Aktapus shall be treated for all purposes as Software or Documentation as the case may be, and all intellectual property rights therein shall be retained by Aktapus.
4.3 Activation Plans. An activation plan is included for first time Customers when activating the Services. Each activation plan comes with a duration of time from the date of purchase of the Services in which the training will be provided (e.g. a free try). Should Customer fail to schedule and receive delivery of its activation plan, the activation plan is subject to forfeiture. Activation plans are non-refundable.
4.4 Training Packages. Training packages are available for purchase by Customers at any time from within the Service. Each training package comes with a duration of time from the date of purchase of the training package in which the training will be provided (e.g. a free try). Should Customer fail to schedule and receive delivery of its training package, the training package is subject to forfeiture. Training packages are non-refundable.
5. PROPRIETARY RIGHTS
5.1 Customer Data. As between the parties, Customer shall own all Customer Data. However, Aktapus may use and disclose measures of Service usage and performance derived from Customer Data, during, and following expiration or termination of this Agreement.
5.2 No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Aktapus (and its licensors) shall retain all right, title and interest in and to the Services and Software (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.
5.3 Restrictions. Except as specifically permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Aktapus’ Confidential Information to create any software, documentation or service that is similar to any of the Software, Documentation or Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Software, or the underlying ideas, algorithms or trade secrets therein (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, rent, lease, time-share or use the Software, Documentation or Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
5.4 Trademarks. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice. Customer grants Aktapus the non-exclusive right and license to reference Customer by Customer name, logo, and/or trademark or service mark, in Aktapus marketing materials either electronically, on the internet, and/or in print. Customer may terminate such license by providing thirty (30) days advance written notice to Aktapus, LLC, Attn.: Marketing Dept., 1420 Celebration Blvd., Suite 200, Celebration, FL 34747.
5.5 General Learning. Customer agrees that Aktapus is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) related to the Software or acquired during performance of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).
6. CONFIDENTIALITY
6.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement (excluding Customer Data that Aktapus has permission to use pursuant to this Agreement), but not including any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it by a third party without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. All Software, Service, Documentation and pricing information is Aktapus’ Confidential Information.
6.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) have been apprised of the restrictions in this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
6.3 Compelled Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6.4 Compliance. Each party will comply with the applicable laws and regulations regarding telecommunications services and data privacy. Each party will take appropriate measures against unauthorized or unlawful processing of information.
7. PAYMENTS
7.1 Fees. Customer agrees to pay Aktapus the initial and recurring fees for the Software license and access to the Services, in the amounts (including without limitation, any minimum amounts) specified in the Order Form. The fees specified in the Order Form, unless otherwise provided therein, will be firm for the initial term of this Agreement (or, if no specific term is specified, for two (2) years after the Effective Date). Thereafter, fees are subject to change at Aktapus’ discretion, upon prior written notice but not more than once in any 12-month period.
7.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid in advance via credit card payment. The initial fee shall be current month (prorated) plus second month. Thereafter amounts due shall be paid one month in advance. Any amount not paid when due shall: (1) bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is greater, and (2) if any payment is not timely received, Aktapus may at its sole discretion disable and suspend Service to Customer without further notice on the day following the date that Service has been paid through, notwithstanding any other terms or conditions herein. Customer agrees to reimburse Aktapus for all costs (including attorneys’ fees) incurred by Aktapus in collecting late payments.
7.3 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Aktapus’ income.
7.4 Audit. Upon reasonable advance written notice, Aktapus shall have the right to have an independent auditor verify Customer’s compliance with this Agreement. Customer shall make its processors and all applicable books and records available for such inspection during normal business hours at Customer’s principal place of business. Any audit shall be at the expense of Aktapus, unless it discloses an underpayment by Customer for the audited period in excess of 5%, in which case Customer shall reimburse Aktapus for such expenses. If the audit discloses any underpayment by Customer, Customer shall promptly make payment to Aktapus of such underpayment, together with late charges as provided in Section 7.2 (Payment Terms).
8. INDEMNIFICATION
8.1 Infringement. Except as provided below, Aktapus agrees to defend and indemnify Customer from and against all third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any third party claim that any Software infringes a valid United States patent, trade secret or copyright of a third party; provided, that (a) Customer, promptly provides Aktapus written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (b) Aktapus shall have sole control and authority to defend, settle or compromise such claim. If any Software becomes or, in Aktapus’ opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Aktapus may, at its option (i) obtain for the Customer the right to continue using such Software or (ii) replace or modify such Software so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Aktapus, then it may (iii) terminate this Agreement upon written notice to Customer and refund pre-paid fees, pro-rated for the remainder of the period for which such fees were paid. This clause states the sole and exclusive remedy associated with any infringement claim.
8.2 Exclusions. Aktapus shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) use of any Software in an application or environment or on a platform or with Devices or Systems for which it was not designed, (b) modifications, alterations, combinations or enhancements of the Software not created by Aktapus, (c) Software that complies with Customer’s specifications, where but for such the inclusion of such specification no claim would exist, (d) any Customer Data, or (e) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software after being provided modifications that would have avoided the alleged infringement. Customer shall indemnify and hold Aktapus harmless from all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) to the limited extent such claims arise out of any claim excluded above in clauses (a) through (e).
8.3 Entire Liability. The foregoing states the entire liability of Aktapus, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation.
9. LIMITED WARRANTY AND DISCLAIMERS
9.1 Services. Aktapus warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and in substantial accordance with the included and any subsequent Order Forms. Notwithstanding the foregoing, Services may be temporarily unavailable, when deemed reasonably necessary or prudent by Aktapus to repair, maintain or upgrade the Services or for causes beyond Aktapus’ reasonable control. Aktapus will attempt to notify Customer in advance of any such unscheduled downtime.
9.2 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. AKTAPUS DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, AKTAPUS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD AND AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL CUSTOMER, OR AKTAPUS (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK, SYSTEM OR DEVICE), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR WITH RESPECT TO AKTAPUS ONLY (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO AKTAPUS HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified in the Order Form (or if no such term is specified, then for two (2) years). Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of 1 year at the end of the initial term and each renewal term. Either party may elect not to renew this Agreement by giving written notice thereof to the other party at least a free try prior to the end of the then current initial or renewal term.
11.2 Termination for Convenience. This Agreement may be earlier terminated by Customer, in whole or in part, upon at least a free try prior written notice to Aktapus; provided, that together with such notice, unless specified otherwise in the Order Form, Customer pays to Aktapus, if any (a) all past due amounts and (b) the current balance of all fees which would have accrued had the Agreement not been terminated under this Section 11.2. Aktapus may terminate this Agreement upon at least a free try prior written notice to Customer.
11.3 Termination for Cause. This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within a free try (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
11.4 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive, (b) Aktapus may, but shall not be obligated to, delete archived Customer Data (excluding Customer Data that Aktapus has permission to use pursuant to this Agreement) and (c) the provisions of Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Payments), 8 (Indemnification), 9.2 (Disclaimers), 10 (Limitation of Liability), 12 (General Provisions) and this Section 11 shall survive, and all other provisions of this Agreement that by their terms or by logical application appear to have an effect or an intended effect beyond the termination of this Agreement shall survive such termination.
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement (together with the applicable Order Form(s) and Appendices) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Order Form, the terms and conditions in the Order Form will prevail and be controlling, and the terms and conditions in the Agreement will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for the Services upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
12.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Minnesota having jurisdiction over Aktapus’ offices, and both parties consent to the jurisdiction of such courts with respect to any such action. 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.
12.3 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 (Proprietary Rights) or 6 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the Customer at its address specified in the Order Form, address in the first paragraph above to Aktapus, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
12.5 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, upon written notice to the other party pursuant to Section 12.4 (Notices), either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
12.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.7 Use of Devices. Use of the Software and Services may be available through a compatible Device. Aktapus assumes no liability for damage and/or injury caused by the use or misuse of such Devices while driving in a moving vehicle. Customer assumes all liability for the use or misuse of the Software and Services on a Device.
Rev. 01102019
