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TERMS OF USE

Table of Contents

I. Website Terms of Use
II. Acceptable Use Policy
III. Professional Services Agreement
IV. Platform Terms of Use
V. Applause Codeless Automation Terms of Use


I. APPLAUSE WEBSITE TERMS OF USE

These terms of use (“Terms of Use”) are entered into between You and Applause
App Quality, Inc. (“Applause,” “we,” or “us”) and govern your access to and use
of applause.com (“Site”) as a guest. Please read the Terms of Use carefully
before you start to use the Site. By using the Site, you accept and agree to be
bound and abide by these Terms of Use, our Privacy Policy, found at, and
ourAcceptable Use Policy. If you do not agree to any of those terms, you must
not access or use the Site.

1. Changes to the Terms of Use. Applause may amend or modify these Terms of Use
without notice at any time at our sole discretion. All changes are effective
immediately when we post them, and apply to all access to and use of the Site
thereafter. Your continued use of the Site after any such changes means that you
accept and agree to the changes.
2. Site Content. Applause offers a wide range of content, services, benefits,
and other resources on the Site (collectively, the “Site Content”). You are
hereby granted a non-exclusive, revocable, non-transferable, and non-assignable
right to use and view the Site Content, subject to your continued compliance
with these Terms of Use. Except as expressly permitted herein, modification,
reproduction, redistribution, republication, uploading, posting, transmitting,
distributing or otherwise exploiting in any way the Site Content, or any portion
of the Site Content, is strictly prohibited without the prior written permission
of Applause. Some of the Site Content may relate to information regarding legal,
financial, or technical matters. Any such content is solely for informational
and general non-advisory purposes. Users should use their own efforts to confirm
such information with a professional(s) in the pertinent field(s).
3. Intellectual Property Rights. Other than content You own, which You may have
opted to include on this Site, under these Terms of Use, Applause owns all
rights to the intellectual property and material contained in this Site, and all
such rights are reserved. You are granted a limited license only, subject to the
restrictions provided in these Terms of Use, for purposes of viewing the
material contained on this Site.
4. Third Party Sites. The Site may contain links to third-party Site. We do not
monitor or control the linked Site, and we are not responsible for the contents
of any linked site. We provide these links as a convenience only, and a link
does not imply endorsement of, sponsorship of, or affiliation with the linked
site by Applause.
5. Interactive Features. A number of locations on the Site offer opportunities
for sharing information and ideas with other Users (the “Interactive Features”).
Applause does not edit nor control the information or materials posted to or
distributed through the Interactive Features by parties other than Applause
itself (the “Interactive Content”), and will not be in any way responsible or
liable for Interactive Content, or any loss or damage that any person may suffer
as a result of using Interactive Features. All Users use the Interactive
Features at their own risk. Users should exercise caution in interacting with
unknown persons that they meet using the Interactive Features in the same way
that they would exercise caution in the physical world. No user of any
Interactive Feature shall: (a) use an Interactive Feature for any purpose in
violation of local, state, Federal, foreign, or international laws; (b)
impersonate any person or entity, or forge or manipulate headers to disguise the
origin of any Interactive Content; (c) except as otherwise permitted by these
Terms of Use, harvest or otherwise collect information about others, including
email addresses, without their consent; (d) post any material more than once or
“spam”; or (e) engage in any other conduct that restricts or inhibits any other
person from using or enjoying any Interactive Feature, Interactive Content, or
the Site, or which, in Applause’s sole judgment, exposes Applause or any
affiliate of Applause to any liability or detriment of any type.
6. Your Content. “Your Content” means any audio, video, text, images or other
material You choose to display on this Site. With respect to Your Content, by
displaying it, You grant Applause a non-exclusive, worldwide, irrevocable,
royalty-free, sublicensable license to use, reproduce, adapt, publish, translate
and distribute it in any and all media. Your Content must be Your own and must
not be infringing on any third party’s rights. Applause reserves the right to
remove any of Your Content from this Site at any time, and for any reason,
without notice.
7. Site Restrictions. No User shall submit, upload to, distribute through or
otherwise post to the Site (including any Interactive Feature) any material
that: (a) is libelous, defamatory, threatening, abusive, scandalous, obscene,
pornographic or unlawful or that encourages a criminal offense; (b) contains any
advertising, promotional, solicitation or other commercial material, including
the uniform resource locator (“URL”) of a User’s own Site, unless the Site in
question relates directly to a project on the Site; notwithstanding the
foregoing, Users may post the URL of a Site containing a portfolio of sample
works or the User’s resumé; (c) contains material from other copyrighted works
without the written consent of the owner of such copyrighted material, other
than reasonable excerpts permitted under the copyright doctrine of fair use; (d)
infringes any copyright, trademark or patent, incorporates any material that
constitutes a trade secret of a third party, or violates any property rights,
rights of privacy or publicity or any other rights of any third party; (e)
contains any statement, formula, direction, recipe, prescription or other matter
that involves a reasonably foreseeable risk of injury or damage to the
material’s readers or others; or (f) contains any software viruses or any other
code, file or program that is designed to interrupt, destroy or limit the
functionality of any computer software, hardware or telecommunications equipment
or to damage, detrimentally interfere with, surreptitiously intercept or
expropriate any system, data or personal information. Users may not further: (1)
use any automated collection mechanism or any manual process to monitor or copy
the web pages comprising the Site or the Site Content without the prior written
permission of Applause; (2) contract employers or freelancers through the Site
or using Site Content for the purpose of encouraging them not to use the Site or
any other services offered by Applause; or (3) engage in personal attacks,
negative or other unfair criticism or other forms of discourteous and
unprofessional online conduct or practices.
8. Applause Entitlements. Applause reserves the right (but is not obligated) to
do any or all of the following: (a) record Interactive Content; (b) investigate
any allegation that Interactive Content or Registration Information does not
conform to these Terms of Use; (c) remove Interactive Content that is abusive,
illegal or disruptive, or that otherwise fails to conform with these Terms of
Use; (d) monitor, edit or disclose any Interactive Content; or (e) edit or
delete any Interactive Content, regardless of whether such content violates any
of these Terms of Use. Applause and Applause’s Affiliates have no liability or
responsibility to users of the Site or any other person or entity for
performance or nonperformance of the aforementioned activities.
9. Eligibility. Applause shall have absolute discretion as to whether or not it
permits a particular User to use or access the Site or any Site Content. The
Site is available only to individuals and entities which can form legally
binding contracts under applicable law. The Site and the Site Content are not
available to persons that are minors under the laws of their jurisdiction of
residence or persons who do not have the legal authority to enter into binding
contracts. By registering to use the Site as a Company, You represent to
Applause that You have the authority to agree to these Terms of Use on behalf of
Your Company. Applause reserves the right to terminate any User’s access to the
Site without notice, at any time, for any or no reason. A Company found in
violation of these Terms of Use, as y Applause in its sole discretion, shall
forfeit any right to receive payment for or a refund of any amounts due from
services rendered or paid for testing services. Applause reserves the right to
pursue claims against Users for all damages (including but not limited to
consequential damages, lost profits, indirect or punitive damages) arising from
or relating to such User’s use of the Site or the Site Content to the fullest
extent of the law.
10. For Information Purposes Only. This Site is provided “as is,” with all
faults, and Applause makes no express or implied representations or warranties,
of any kind related to this Site or the materials contained on this Site.
Additionally, nothing contained on this Site shall be construed as providing
consult or advice to You. Applause may also make improvements and/or changes in
the products and/or the programs described in this information at any time
without notice. Applause shall have no liability for any errors or omissions in
such information or data, including third party content, whether provided by
Applause or others.
11. NO LIABILITY. IN NO EVENT WILL APPLAUSE BE LIABLE TO YOU OR ANY THIRD PARTY
FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR
RELATED TO USE OF THE SITE, OR ON ANY OTHER LINKED OR THIRD PARTY Site,
INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF
PROGRAMS OR DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, HOWEVER
ARISING, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Digital Millennium Copyright Act. Applause complies with the provisions of
the Digital Millennium Copyright Act applicable to internet service providers
(17 U.S.C. §512, as amended). Any notice alleging that materials on this Site
infringe intellectual property rights must include the following information:
(a) An electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright or other right being infringed; (b) A
description of the copyrighted work or other intellectual property that You
claim has been infringed; (c) A description of the material that You claim is
infringing and where it is located on the Site; (d) Your address, telephone
number, and email address; (e) A statement by You that have a good faith belief
that the use of the materials on the Site of which are complaining is not
authorized by the copyright owner, its agent, or the law; and (f) A statement by
that the above information in Your notice is accurate and that, under penalty of
perjury, You are the copyright or intellectual property owner or authorized to
act on the copyright or intellectual property owner’s behalf. If You have any
complaints or objections to material posted on the Site You may contact our
Designated Agent at the following address: General Counsel,
Applauselegal@applause.com 100 Pennsylvania Ave., Suite 500, Framingham, MA
01701 United States of America Telephone: 508.480.9999
13. Governing Law/Venue. These Terms shall be governed by the laws of the State
of Delaware, without regard to any of its conflict of laws’ provisions. Any
action or proceeding relating to these Terms must be brought in a federal or
state court in Wilmington, Delaware (provided, however, that nothing in these
Terms shall prevent a party from seeking injunctive relief to enforce the terms
of these Terms in any venue or jurisdiction as determined in such party’s sole
discretion and convenience), and each party irrevocably submits to the
jurisdiction and venue of any such court in any such action or proceeding.
14. Severability. If any provision of these Terms of Use is found to be
unenforceable or invalid under any applicable law, such unenforceability or
invalidity shall not render these Terms of Use unenforceable or invalid as a
whole, and such provisions shall be deleted without




II. APPLAUSE ACCEPTABLE USE POLICY

1. Your access and use of the Applause App Quality, Inc.’s Customer app, and/or
Website and/or of any other online Applause offerings or platform (collectively
herein, “Sites”) is subject to this Acceptable Use Policy. Capitalized terms
have the meaning stated in the underlying agreement applicable to your role as
customer, website user, and/or community member or tester (referred to herein as
the “Agreement”). To the extent there are conflicts between this policy and the
applicable Agreement, the terms of the Agreement shall take precedence.
2. You shall use the Sites exclusively for authorized and legal purposes, and in
compliance with all applicable laws, rules, regulations, and license
restrictions. You shall not use the Applause Sites:


 * to transmit any material that infringes the intellectual property rights or
   other rights of third parties;
 * to transmit any material or content that is defamatory, offensive,
   inappropriate, pornographic, obscene or otherwise objectionable to any
   reasonable person;
 * for any illegal, fraudulent, or abusive purpose, or in violation of any laws
   (including without limitation data, privacy, and export control laws).
 * in connection with unsolicited or harassing notifications (commercial or
   otherwise), including unsolicited or unwanted SMS or emails;
 * to receive, send, or otherwise process sensitive personal data such credit
   card and payment information, or Protected Health Information as defined by
   the Health Insurance Portability and Accountability Act of 1996 as amended,
   or other types of sensitive and highly-regulated data;
   to provide material support or resources (or to conceal or disguise the
   nature, location, source, or ownership of material support or resources) to
   any organization(s) designated by the United States government as a foreign
   terrorist organization pursuant to section 219 of the Immigration and
   Nationality Act or other laws and regulations concerning national security,
   defense, or terrorism;

3. Additionally, You shall not attempt to bypass or break any security mechanism
on any of the Applause Sites, or using the Applause Sites in any other manner
that poses a material security or service risk to Applause or any of its other
customers, including but not limited to:

 * attempting to reverse engineer, decompile, hack, disable, interfere with,
   disassemble, modify, copy, translate, or disrupt the features, functionality,
   integrity or performance of the Sites (including any mechanism used to
   restrict or control the functionality of the Sites), any third party use of
   the Sites, or any third party data contained therein (except to the extent
   such restrictions are prohibited by applicable law);
 * conducting scans in order to find limitations, vulnerabilities, or evade
   filtering capabilities;
 * launching or facilitating, whether intentionally or unintentionally, a denial
   of service attack on any of the Applause Sites or any other conduct that
   materially and adversely impacts the availability, reliability, or stability
   of the Applause Sites.;
 * sending altered, deceptive, or false source-identifying information,
   including “spoofing” or “phishing”;
 * creating a false identity or forged email address, phone number, or otherwise
   attempting to create alternative users;

 * using the Sites for purposes of benchmarking or other competitive purposes.

4. If you become aware of any violations of this Acceptable Use Policy, please
contact us immediately at DPOprivacy@applause.com. Subject to the terms of the
underlying Agreement, without affecting any other remedies available to us,
Applause may permanently or temporarily terminate or suspend a user’s account or
access to the services without notice or liability if Applause determines that a
user has violated this Acceptable Use Policy.


III. APPLAUSE PROFESSIONAL SERVICES TERMS OF USE

This Professional Services Agreement (this "Agreement") is a binding contract
between you ("Customer," "you," or "your") and Applause App Quality, Inc.
("Applause," "we," or "us"). This Agreement governs your purchase of testing
services under a Statement for Work. For clarity purposes, the term “Applause”
includes Applause and its employees, but specifically excludes any Applause
community testers.

1. Definitions. Capitalized terms shall be defined as set forth below, or
elsewhere in this Agreement: “Customer Materials” means any data or materials
not provided by Applause that are included in any Services, such as technical
information and functional specifications, user data, logos, photographs,
compilations of facts, artwork, animations, video or audio files, or source
materials for any of the foregoing.
2. Scope. The services to be provided by Applause are described in each
Statement of Work attached hereto (the “Services”). This Agreement is
non-exclusive and does not commit Customer to purchase any minimum quantity of
Services.
3. Term. The term of this Agreement will be one year from the effective date,
unless terminated as provided herein. Thereafter, this Agreement will
automatically renew for successive one (1) year terms, unless terminated as
provided herein.
4. Fees. Subject to the terms and conditions of this Agreement, Customer will
pay Applause the fees specified in the Statements of Work (“Fees”) as Applause’s
sole and complete compensation for all Services rendered by Applause under this
Agreement. No other Fees will be owed by Customer under this Agreement.
Undisputed Fees shall be due thirty (30) days after receipt of Applause’s
invoice. The parties agree to work with each other in good faith to resolve any
payment dispute within thirty (30) days after receipt of notice of any such
payment dispute.
5. Warranty. Services shall be performed in a professional manner, consistent
with industry standards.
6. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION
5 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM
ANY EXPRESS IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS (INCLUDING THOSE BY
OUR SUPPLIERS), INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT
THE SERVICES WILL BE FREE OF ERRORS. Some jurisdictions do not allow limitations
on how long an implied warranty or condition lasts, so the above limitation may
not apply to you. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU
MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7. Customer’s Confidential Information and Property. Applause agrees that the
exchange of Customer’s Confidential Information under this Agreement shall be as
defined in and governed by the terms and conditions of the non-disclosure
agreement attached hereto as Exhibit A, which is incorporated herein by this
reference, and to which Applause agrees to be bound. Irrespective of the
foregoing and except as otherwise specified in a Statement of Work, Applause
may, without liability hereunder and for the purpose of testing only, provide
Customer’s Confidential Information to its community Testers (“Testers”) which
have entered into non-disclosure obligations with Applause. Customer may
require, through Applause’s Sites, that such Testers participating in the
testing of Customer’s technology sign a non-disclosure agreement directly with
Customer prior to such testing. All items on Customer premises are the property
of Customer and may not be used or removed without prior approval. Any
information furnished to or acquired by Applause hereunder or in contemplation
hereof shall remain Customer’s property. All such information (and any copies
thereof) shall be returned to Customer upon termination or expiration of this
agreement, or upon Customer’s request. Unless such information was previously
known to Applause free of any obligation to keep it confidential or has been or
is subsequently made public by Customer, such information shall be held in trust
and confidence by Applause as specified in such non-disclosure agreement, shall
be used only in performing hereunder, and may be used for other purposes only
upon such terms as may be agreed upon by the parties in writing.
8. Restrictions on Use. Customer shall use the Services solely for Customer’s
business purposes, in compliance with applicable law, and shall not: (i)
sublicense, lease, or make the Services available to any unauthorized third
party; (ii) send or store infringing, unlawful, defamatory or libelous material;
(iii) send or store any malicious code; (iv) attempt to gain unauthorized access
to, or disrupt the integrity or performance of, the Services or the data
contained therein; (v) modify, copy or create derivative works based on the
Services; (vi) reverse engineer the Services; (vii) access the Services for the
purpose of building, selling, marketing or otherwise, a competitive product or
service or copying its features or user interface; or (viii) remove the
copyright, trademark, or any other proprietary rights or notices included within
the Services and on and in the documentation and training materials.
9. Work Product. Except for Applause’s pre-existing materials, software,
technologies , methodologies and know-how (including Applause’s proprietary
platform (the “Platform”) which is currently accessible at the URL’s
“Applause.com” and “my.Applause.com”), or as otherwise specified in a Statement
of Work, to the extent that any items, in any medium, prepared or originated by
or for Applause specifically and uniquely for Customer, at Customer’s request in
connection with the Services, including work in progress, (“Work Product”) shall
be the exclusive property of Customer and shall be deemed to be works for hire,
and all rights, title, and interest therein, including without limitation
copyrights, trade secrets, and other proprietary rights, shall vest upon
creation solely in Customer. For the purpose of clarity and avoidance of doubt,
Applause retains ownership of the Applause platform and all related intellectual
property rights, while Customer shall own the specific feedback delivered by
Applause to Customer in the performance of an SOW (“Feedback”). Such Feedback
may be downloaded by Customer as a CSV file during the Term of the Agreement. To
the extent they may not be works for hire, Applause assigns to Customer all
rights, title, and interest in and to Work Product, and Applause hereby releases
any claim that Applause has or may have in the future to Work Product. If Work
Product includes items previously developed or copyrighted by Applause, Applause
hereby grants to Customer, solely during the term that a Statement of Work or
Order Form remain in effect, a royalty-free license to use such Work Product for
any lawful purpose.
10. Independent Contractor. Applause hereby declares and agrees that:
(a) it is engaged in an independent business and will perform its obligations
under this agreement as an independent contractor and not as the agent or
employee of customer;
(b) Applause does not have the authority to act for customer or to bind customer
in any respect whatsoever or to incur any debts or liabilities in the name of or
on behalf of customer, and applause will not hold itself out as possessing such
authority;
(c) Applause will have exclusive control over the manner and means of performing
the services, including the choice of place and time, and will use applause’s
expertise and talents in performing the services;
(d) Applause will provide, at applause’s own expense, a place of work and all
equipment, tools, and other materials necessary to complete the statement of
work; however, to the extent necessary to facilitate performance of the services
and for no other purpose, customer may, in its discretion, make its equipment or
facilities available to applause at applause’s request;
(e) if Applause uses customer’s equipment or facilities, regardless of whether
customer grants permission to applause to do so, such equipment or facilities
will be used only in the performance of this agreement;
(f) Applause shall not be eligible for, or be entitled to participate in, any
customer benefit plan or program, including employee pension, profit sharing,
health, or other fringe benefit plan.
(g) Applause is not entitled to receive from customer unemployment or worker’s
compensation insurance benefits;
(h) Applause is obligated to pay federal, state, and local income tax and
self-employment tax on any monies paid to it pursuant to this agreement;
(i) Customer will not withhold fica or state or federal income tax from any
monies paid to applause pursuant to this agreement; and
(j) Applause is the employer of all workers and assistants it provides, is the
primary employer of same, and that customer is not a joint employer for any
purpose including, without limitation, the family and medical leave act.
11. Applause Indemnification.
(a) Claims Related to Services. Provided that Customer complies with the
procedures set forth in Section 11(e) and subject to Section 11(b), Applause
will, at its expense and under its control (including selection of counsel),
defend and/or settle any claim, suit or proceeding brought by a third party
against Customer or its officers, directors, employees, agents and affiliates
alleging that the Services, as provided by Applause, infringes any copyright,
trademark, trade secret or patent issued as of the date of this Agreement. In
addition, Applause will pay any judgment awarded against Customer or any
settlement amount agreed to by Applause and, subject to Section 11(e), any
authorized expenses incurred by Customer. Exclusions. Applause will have no
obligation under Section 11(a) with respect to any claim of infringement arising
out of or based upon (i) Customer’s modification of the Services or its
combination or use with programs not supplied by Applause or its use in a manner
not permitted by this Agreement, where such infringement is the result of such
modification, combination or use; (ii) use of the Services that is not strictly
in accordance with the terms of this Agreement; or, (iii) Customer Materials
used with or incorporated in the Services.
(b) Injunction. If Customer’s use of the Services is or is likely to be
enjoined, Applause may, without limiting its indemnity obligations hereunder,
procure the right for Customer to continue to use the Services or modify the
Services in a functionally equivalent manner so as to avoid such injunction. If
the foregoing options are not available on commercially reasonable terms and
conditions, Applause may require the return of any such Services and refund to
Customer a prorated amount of prepaid fees for the Services actually paid by
Customer for the unused portion of the then-current term.
(c) Claims Related to Customer Materials. Provided that Applause complies with
the procedures set forth in Section 11(e), Customer will, at its expense, defend
and/or settle any claim, suit or proceeding brought against Applause or its
officers, directors, employees, agents and affiliates and arising out of or
related to the Customer Materials (either alone or as incorporated into the
Services). In addition, Customer will pay any judgment awarded against Applause
or any settlement amount agreed to by Customer and, subject to Section 11(e),
any authorized expenses incurred by Applause.
(d) Procedure. If one party (the “Indemnitee”) receives any notice of a claim or
other allegation with respect to which the other party (the “Indemnitor”) has an
obligation of indemnity hereunder, then the Indemnitee will in order to qualify
for Indemnification under this Section, within 15 days of receipt of such
notice, give the Indemnitor written notice pursuant to the notice provision set
forth in Section 22 of this Agreement, of such claim or allegation setting forth
in reasonable detail the facts and circumstances surrounding the claim. The
Indemnitee will not make any payment or incur any costs or expenses with respect
to such claim, except as requested by the Indemnitor or as necessary to comply
with this procedure. The Indemnitee will not make any admission of liability or
take any other action that limits the ability of the Indemnitor to defend the
claim. The Indemnitor shall immediately assume the full control of the defense
or settlement of such claim or allegation, including the selection and
employment of counsel, and shall pay all authorized costs and expenses of such
defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor,
in the defense or settlement of the claim. The Indemnitee shall have the right,
at its own expense, to employ separate counsel and participate in the defense or
settlement of the claim. The Indemnitor shall have no liability for costs or
expenses incurred by the Indemnitee, except to the extent authorized by the
Indemnitor or pursuant to this procedure.
(e) Exclusive Remedies. The indemnity and other remedies set forth in this
Section shall be the exclusive remedies of the parties with respect to any
actual or alleged infringement of any intellectual property rights.
12. INSURANCE. APPLAUSE SHALL SECURE BEFORE COMMENCING, AND MAINTAIN DURING THE
PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT: (1) WORKERS’ COMPENSATION
INSURANCE AS PRESCRIBED BY THE LAW OF THE STATE IN WHICH THE WORK IS PERFORMED;
(2) COMMERCIAL GENERAL LIABILITY (“CGL”) INSURANCE, WITH LIMITS OF AT LEAST
$1,000,000.00 COMBINED SINGLE LIMIT FOR BODILY INJURY AND PROPERTY DAMAGE FOR
EACH OCCURRENCE; AND (3) PROFESSIONAL LIABILITY OR ERRORS AND OMISSIONS
INSURANCE IN THE AMOUNT OF AT LEAST $1,000,000.00 FOR EACH OCCURRENCE.
13. LIMITATION OF LIABILITY.
(a) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM,
CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM
ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS OF
THIS SECTION 13(A) DO NOT APPLY TO EACH PARTY’S OBLIGATIONS PURSUANT TO SECTION
7, SECTION 11, OR TO THE MISAPPROPRIATION OR UNAUTHORIZED USE OF A PARTY’S
INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE PLATFORM). SOME
JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
(b) IN NO EVENT SHALL APPLAUSE’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES,
DIRECT OR INDIRECT, IN CONNECTION WITH ANY SERVICES EXCEED THE AMOUNT PAID UNDER
THE APPLICABLE SOW WITH RESPECT TO SUCH SERVICES, WHETHER SUCH LIABILITY ARISES
FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS
OF THIS SECTION 13(b) DO NOT APPLY TO OUR OBLIGATIONS PURSUANT TO SECTIONS 7 or
11.
14. Compliance with Laws. Applause shall, at its expense, obtain all permits and
licenses, pay all fees, and comply with all federal, state and local laws,
ordinances, rules, regulations, and orders ("Laws") applicable to Applause's
performance under this Agreement. Applause hereby certifies that to its
knowledge, it is in compliance with all such Laws.
15. Termination.
(a) Termination for Cause. If either party breaches this Agreement or an
applicable SOW (as such, the “Breaching Party”) and fails to cure such breach
within thirty (30) days (“Cure Period”) of receiving notice of the breach from
the other party (as such, the “Non-breaching Party”), then the Non-breaching
party may, at its option, terminate this Agreement, or the applicable SOW, by
providing written notice of termination to the Breaching Party. The foregoing
Cure Period does not apply to Customer’s breach of Section 4. In the event of a
an uncured breach by Customer under this section, Customer shall pay for all
amounts due and owing for the remainder of the term of the applicable SOW.
(b) Termination by Applause. Subject to applicable law, Applause may terminate
any active Statements of Work if: (i) a receiver is appointed for you or your
property; (ii) you make an assignment for the benefit of your creditors; (iii)
any proceedings are commenced by, for or against you under any bankruptcy,
insolvency or debtor's relief law; or (iv) you commence steps to liquidate or
dissolve. Our obligation to provide further services on a project shall cease
upon termination of the applicable Statement of Work. Termination of this
Agreement shall also terminate all then current Statements of Work, unless the
parties otherwise agree.
(c) Effect of Bankruptcy. In the event that Customer become the subject of any
voluntary or involuntary proceeding bankruptcy, liquidation, dissolution,
receivership or attachment or make a general assignment for the benefit of
creditors, amounts that have been paid to us hereby deemed earned upon receipt
and are our sole property, irrespective of whether goods or services have been
delivered and may be applied, in whole or in part, in satisfaction of any
obligations owed by you to us under this Agreement or any other agreement
between you and us.
16. Dispute Resolution. Pending the resolution of a dispute, the parties
expressly agree that performance of their obligations under this Agreement shall
not be delayed or suspended.
17. General.
(a) Force Majeure. Neither party shall be liable for failure to perform (other
than obligations to make payments when due) solely caused by unforeseeable Force
Majeure circumstances beyond their reasonable control ("Force Majeure"). The
party experiencing the Force Majeure circumstances shall notify the other party
of the delay as soon as reasonably possible, and shall cooperate in minimizing
the impact of such Force Majeure. If such circumstances occur for an extended
period in excess of ten (10) days, the injured party may elect to terminate this
Agreement and/or any Order in whole or in part upon written notice.
(b) Remedies. Each party acknowledges and agrees that any breach of Section 7 or
11 may cause irreparable harm to the other party for which damages would not be
an adequate remedy; therefore, the non-breaching party shall be entitled to seek
injunctive relief with respect thereto in addition to any other remedies.
(c) Export Control and Economic Sanctions. Customer agrees to comply with all
U.S. export and re-export control laws and regulations and the U.S. economic
sanctions, including the Export Administration Regulations (“EAR”) administered
by the U.S. Department of Commerce, the laws and regulations administered by the
U.S. Department of the Treasury’s Office of Foreign Assets Control, and the
International Traffic in Arms Regulations (“ITAR”) administered by the U.S.
Department of State, and not cause Applause to violate the same. Without
limiting the foregoing, Customer covenants that Customer shall not -- directly
or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose
of any products, software, or technology (including products derived from or
based on such technology) received from Applause under this Agreement to or for
use in or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria),
entity, or person subject to restrictions under the laws or regulations of any
jurisdiction, including without limitation, the United States, without providing
advance notification to Applause and obtaining prior authorization from the
relevant government authorities as required by those laws and regulations. Prior
to any such export event, Customer and Applause shall execute a written
agreement to govern the use, control, and transfer of the applicable software
and data. Customer hereby indemnifies and holds harmless, to the fullest extent
permitted by law, Applause and our assigns from and against any fines,
penalties, judgments, settlements, and reasonable documented costs, including
attorney’s fees, that may arise as a result of Customer and Customer’s agents,
officers, directors or employees breach of this provision.
(d) Records and Audits. Applause shall maintain complete and accurate records of
all charges incurred by Customer under this Agreement, in accordance with
generally accepted accounting principles, for a period of twenty-four months
from the date of termination, cancellation, or expiration of this Agreement.
Customer shall have the right, not more often than once per each calendar year,
to inspect Applause's records upon reasonable notice and to retain copies
thereof.
(e) Assignment and Delegation. Neither Party may assign its interest in this
Agreement without the other Party’s prior written consent, which consent shall
not be unreasonably withheld. Any attempted assignment by either party shall be
void. Notwithstanding the foregoing, Applause may transfer and/or assign some or
all of this Agreement by operation of law due to a merger or change of control,
without prior notice to you or your consent. For the purposes of this Agreement,
“change of control” means consolidation, or any sale of all or substantially all
of its assets or any other transaction in which 50% or more of its voting
securities are transferred. No other delegation of the performance of Services
or other obligations of Applause shall be made without written permission of
Customer, including the hiring of subcontractors to perform any part of
Services. Irrespective of the foregoing, Customer acknowledges that Applause
utilizes independent Applause community testers (“Testers”) to assist Applause
in the performance of the Services hereunder and Customer hereby grants Applause
permission to utilize such Testers in the performance of its Services hereunder.
(f) Notices. Any notices required under this Agreement shall be in writing, sent
to the addresses of the parties stated below, and deemed effective: (i) upon
receipt if delivered in person, by courier, or electronic facsimile (fax); or
(ii) three business days after certified or registered mailing (postage prepaid
and return receipt requested).
(g) Advertising; Publicity. Neither party shall use the other party's names,
marks, codes, drawings or specifications in any advertising, promotional efforts
or any publicity of any kind without the prior written permission of such other
party. Irrespective of the foregoing, Applause may list Customer as one of its
customers.
(h) Waivers. The failure of either party to exercise any right shall not be
construed to be a waiver unless agreed upon in writing. A waiver in any one
instance shall not constitute an amendment to this Agreement or indicate any
continued waiver of such right(s) on any other occasion.
(i) Modifications or Amendments. No modifications or amendments shall be made to
this Agreement unless in writing and signed by the Parties.
(j) Survival. The provisions of this Agreement that, by their sense and context,
are intended to survive performance by either or both parties shall also survive
the completion, expiration, termination or cancellation of this Agreement.
(k) Choice of Law and Venue. This Agreement shall be governed by the laws of the
State of Delaware, without regard to any of its conflict of laws’ provisions.
Any action or proceeding relating to this Agreement must be brought in a federal
or state court in Wilmington, Delaware (provided, however, that nothing in this
Agreement shall prevent a party from seeking injunctive relief to enforce the
terms of this Agreement in any venue or jurisdiction as determined in such
party’s sole discretion and convenience), and each party irrevocably submits to
the jurisdiction and venue of any such court in any such action or proceeding.
(l) Counterparts. This Agreement may be executed in counterparts, each of which
will be considered an original, but all of which together will constitute the
same instrument
(m) Non-Solicitation. Applause and Customer mutually agree not to solicit (other
than by or resulting from general hiring advertisements), any employee or
subcontractor of the other (including, without limitation, any Tester which
performs Services on behalf of Applause for Customer hereunder) on behalf of
itself or another Customer during the term of this Agreement and for a period of
one year thereafter.
(n) Entire Agreement. This Agreement, together with any Exhibits, Statements of
Work, and executed amendments, shall constitute the entire agreement between the
Parties with respect to the Services to be provided. This Agreement supersedes
all prior oral or written communications or agreements of the Parties with
respect to the Services. The terms of this Agreement will govern all purchase
orders or similar ordering documents submitted by Applause, and preprinted or
form terms in any purchase order or similar ordering document will have no legal
effect on the parties.



IV. APPLAUSE PLATFORM TERMS OF USE

This Applause Platform Agreement (this "Agreement") is a binding contract
between you or the company you represent ("Customer," "You," or "Your") and
Applause App Quality, Inc. ("Applause," "we," or "us"). This Agreement governs
your access to and use of the Applause Platform (“the Platform”). This Agreement
incorporates by reference the terms of Applause’s Acceptable Use Policy found at
https://www.applause.com/terms-of-use. PLEASE READ CAREFULLY TO ENSURE THAT YOU
UNDERSTAND EACH PROVISION. IF YOU DO NOT AGREE TO THESE TERMS, YOU CANNOT ACCESS
THIS PRODUCT. BY CLICKING “I AGREE” AFTER READING THESE TERMS, YOU AGREE TO BE
BOUND BY THESE TERMS.

1. Definitions.
"Applause IP" means the Platform and all intellectual property provided to the
Customer in connection with the foregoing. Applause IP includes any information,
data, or other content derived from Applause's monitoring of Customer's access
to or use of the Platform, but does not include Customer Data.
"the Platform” means the services provided by Applause under this Agreement that
are detailed on Applause's website available at “Applause.com” and
my.Applause.com”.
"Authorized User" means Customer and its employees, consultants, contractors,
and agents (i) who are authorized by Customer to access and use the Platform
under the rights granted to Customer pursuant to this Agreement and (ii) for
whom access to the Platform has been purchased hereunder.
“Collected Data” means data and information collected by Applause from or
through Customer Applications in the provision of the Platform.
“Customer Application” means Customer’s developed software applications
identified in an SOW.
“Customer Content” means information, data, and other content, submitted,
uploaded or otherwise transmitted by Customer or any other Authorized User
through the Platform.
"Documentation" means Applause's online user guides relating to the Platform
either electronically or in hard copy form/end user documentation, available at
support.applause.com and help.utest.com.
“Intellectual Property Rights” or “IPR” means unpatented inventions, patent
applications, patents, design rights, copyrights, trademarks, the Platform
marks, trade names, domain name rights, mask work rights, know-how and other
trade secret rights, and all other intellectual property rights, derivatives
thereof, and forms of protection of a similar nature anywhere in the world.
“Mobile System Operator” means any third party that manages the distribution of
applications for a specific mobile operating system.
“Subscription Term” means the period where You are authorized to access the
Platform per an SOW.
2. Access and Use.
(a) Access. Subject to Your compliance with the Agreement and SOW, Applause
grants You a non-exclusive, non-transferable, non-sublicensable right solely to
have Your Authorized Users access the features and functions of the Platform per
an SOW solely for Your internal business purposes and solely for the
Subscription Term. You are responsible for your Authorized Users’ acts and
omissions. You will notify Applause immediately of any unauthorized use or any
suspected breach of security related to the Platform.
(b) Documentation. Subject to this Agreement, Applause hereby grants you a
non-exclusive, non-sublicensable, non-transferable license for Authorized Users
to use the Documentation during the Subscription Term solely for your internal
business purposes in connection with use of the Platform.
(c) Use Restrictions. You and your Authorized Users are not permitted to use the
Platform, or Documentation for any purposes beyond the scope granted herein. You
shall not, and shall not permit any Authorized Users to: (i) copy, modify, or
create derivative works of the Platform, or Documentation; (ii) rent, lease,
lend, sell, license, sublicense, assign, distribute, publish, transfer, or
otherwise make available the Platform or Documentation except as expressly
permitted herein; (iii) reverse engineer, disassemble, decompile, decode, adapt,
or otherwise attempt to derive or gain access to any software component of the
Platform; (iv) remove any proprietary notices from the Platform or
Documentation; or (v) use the Platform or Documentation for any purpose that
infringes, misappropriates, or otherwise violates any intellectual property
right or other right of any person, or in violation of law, regulation, or rule.
(d) Limitations on Communications. Except for communications between Customer
and Testers (“Testers” are contractors of Applause who perform testing services)
regarding projects for which the Testers are providing testing services to You,
You are prohibited from making direct contact or engaging in any transaction,
including commercial transactions, with other Users, whether through the
Platform or otherwise. You agree not to post Your email address, phone number,
or any other method of contact outside of the Platform or give any of the
foregoing information to another User. Testers and Customers working together on
a project shall be provided with the necessary contact information.
(d) Aggregated Statistics. Applause may monitor Customer's use of the Platform
and collect and compile data and information in an aggregated and anonymized
manner, including statistical and performance information related to the
operation of the Platform ("Aggregated Statistics"). All right, title, and
interest in Aggregated Statistics, and all intellectual property rights therein,
solely belong to Applause. You acknowledge that Applause may compile Aggregated
Statistics based on Customer Data input into the Platform. You agree that
Applause may (i) make Aggregated Statistics publicly available in compliance
with applicable law, and (ii) use Aggregated Statistics to the extent permitted
under applicable law provided that such Aggregated Statistics do not identify
Customer or Customer's Confidential Information.
(e) Reservation of Rights & Ownership. Except as expressly set forth in this
Agreement, Applause and its licensors retain all right, title, and interest in
and to the Platform, and all related Applause IP. Applause reserves all rights
not expressly granted to Customer under this Agreement. Customer and its
licensors retain all right, title, and interest in and to the Customer
Application (other than any portion of the Platform contained within the
Customer Application (e.g., the SDK)), and all related IPR. This Agreement is
not a sale and does not convey to Customer any rights of ownership in the
Platform, Applause offerings or services or IPR. The Applause name, logo, and
the Platform names are trademarks of Applause or its suppliers, and no right or
license is granted to use them. Your will not accrue residual rights to the
Platform, including any rights to the IPR.
(f) Suspension. Applause may temporarily suspend Your access to the Platform if:
(i) Applause reasonably determines that (A) there is a threat or attack on any
of the Applause IP; (B) Customer's or any other Authorized User's use of the
Applause IP disrupts or poses a security risk to the Applause IP or to any other
customer or vendor of Applause; (C) Customer or any other Authorized User is
using the Applause IP for fraudulent or illegal activities; (D) subject to
applicable law, Customer has ceased to continue its business in the ordinary
course, made an assignment for the benefit of creditors or similar disposition
of its assets, or become the subject of any bankruptcy, reorganization,
liquidation, dissolution, or similar proceeding; or (E) Applause's provision of
the Platform is prohibited by applicable law; (ii) any Applause vendor has
suspended or terminated Applause's access to or use of any third-party services
or the Platform required to enable Customer to access the Platform; or (iii) for
non-payment under an invoice (any such suspension described in subclause (i),
(ii), or (iii), a "Service Suspension"). Applause shall use commercially
reasonable efforts to provide notice of any Service Suspension to Customer and
to provide updates regarding resumption of access to the Platform following
Service Suspension.
3. Customer Responsibilities & Customer Content.
(a) Customer Application. Customer is solely responsible for its Customer
Applications and all costs associated with its development. Without limiting the
foregoing: Customer: (i) may need to submit Customer Applications to a Mobile
System Operator for approval prior to distribution and Applause does not
guarantee acceptance of the Customer Application; (ii) will bear sole
responsibility for the Customer Application support; (iii) will require any end
user of the Customer Application to agree to terms with Customer at least as
protective of Applause and the Platform as this Agreement; (iv) will ensure that
Customer Application’s end user provides all necessary consents for Applause to
collect the Collected Data, and (v) will follow applicable regulations
promulgated by each applicable mobile system operator. Applause reserves the
right to reject or suspend use of the Platform due to a Customer Application.
(b) Rights. Customer will ensure the legality and appropriateness of the
Customer Applications and the Customer Content and that neither infringes the
intellectual property rights, any right of right of privacy or publicity (of any
third party) or are defamatory. Applause reserves the right to remove all
Customer Content that breaches Customer’s obligations under this Section.
(c) License to Applause. Customer Content will be and remain Customer’s
property. Customer hereby grants to Applause a limited, royalty-free, license
during the Subscription Term to use, copy, display, disclose, modify and
distribute the Customer Content solely for the purpose of providing the
Platform.
(d) Sensitive Data. Customer agrees that the amount and type of Collected Data
is determined by Customer through and Applause cannot control the data it
collects from or through the Customer Application. Customer will not submit: (i)
any personally identifiable information, except as necessary for the
establishment of an account for an Authorized User; (ii) any protected health
information regulated by HIPAA or any similar federal or state laws, rules or
regulations or other medical or health information identifiable with a
particular individual; or (iii) any other information subject to regulation or
protection under specific laws such as the Gramm-Leach-Bliley Act (or related
rules or regulations) ((i) through (iii), collectively, “Sensitive Data”).
Customer agrees that Applause is not acting as a Business Associate or
subcontractor (as such terms are defined and used in HIPAA) and that the
Platform is not HIPAA compliant. “HIPAA” means the Health Insurance Portability
and Accountability Act, as amended. Applause has no liability under this
Agreement for Sensitive Data.
(f) Modifications. Applause reserves the right to modify the Platform at any
time without liability. In the event that Applause adds additional functionality
to any the Platform, Applause may condition the implementation of such
modifications on Customer’s payment of additional fees, and Customer will not be
entitled to such new functionality unless Customer pays such fees, provided
Customer may continue to use the prior version, without additional fees.
(h) Account Use. You are liable for all uses of the Platform and Documentation
whether such access is permitted by or in violation of this Agreement. You are
responsible for (i) keeping your passwords and access credentials associated
with the Platform confidential; and (ii) all acts and omissions of Authorized
Users. Any act or omission by an Authorized User that would constitute a breach
of this Agreement will be deemed a breach of this Agreement.
(i) Customer Data. You grant Applause a non-exclusive, royalty-free, worldwide
license to reproduce, distribute, and otherwise use and display the Customer
Data and perform all acts with respect to the Customer Data as necessary for
Applause to provide the Platform to you, and a non-exclusive, perpetual,
irrevocable, royalty-free, worldwide license to reproduce, distribute, modify,
and otherwise use and display Customer Data incorporated within the Aggregated
Statistics. You will ensure that Customer Data will not violate any policy or
terms of this Agreement or any applicable law. You are solely responsible for
the development, content, operation, maintenance, and use of Customer Data.
(h) Third-Party Platform. The Services may permit access to a third party
platform. Such third party platforms are subject to their own terms and
conditions, for acceptance within the Platform.
(i) Fees and Payment. Customer will pay Applause the fees stated in the SOW net
30 days of invoice, unless otherwise agreed. All payment obligations are
non-cancelable and nonrefundable. All Fees will be paid in U.S. dollars and
exclude applicable sales, use, and other taxes. Unless otherwise agreed,
Applause reserves the right to increase the fees upon renewal of each
Subscription Term. If payments under this Agreement are subject to sales and use
taxes in any jurisdiction and Customer has not paid to Applause the sales tax
specified in any invoice, Customer will be responsible for the payment of such
taxes and any related penalties or interest to the relevant tax authority.
Customer will indemnify Applause for any liability or expense Applause may incur
in connection with such sales and use taxes. Upon Applause’s request, Customer
will provide Applause with receipts issued by the appropriate taxing authority,
or other such evidence that Customer has paid all applicable taxes.
6. Confidential Information. Each party agrees that any non-public data,
information and other materials regarding the products, services or business of
a party (and/or, if either party is bound to protect the confidentiality of any
third party’s information, of a third party) provided to the other party where
such information is marked or otherwise communicated as being “proprietary” or
“confidential” or the like, or where such information should, by its nature, be
reasonably considered to be confidential and/or proprietary shall be deemed the
“Confidential Information” of the other Party. Without limiting the foregoing,
the Platform, any performance data, benchmark results, and technical information
relating thereto, Applause’s pricing information shall be deemed the
Confidential Information of Applause. Notwithstanding the foregoing,
Confidential Information shall not include information which: (i) is already
known to the Receiving Party prior to disclosure by the Disclosing Party; (ii)
becomes publicly available without fault of the Receiving Party; (iii) is
rightfully obtained by the Receiving Party from a third party without
restriction as to disclosure, or (iv) is approved for release by written
authorization of the Disclosing Party. Each party (the “Receiving Party”) agrees
to keep the Confidential Information of the other party (the “Disclosing Party”)
in confidence and not to use such Confidential Information except in performing
hereunder. Applause may, without liability hereunder and for the purpose of
testing only, provide your Company’s confidential information to Testers which
have entered into non-disclosure agreements with Applause.
7. Privacy Policy. Applause complies with its Privacy Policy available at
https://www.applause.com/privacy-policy. By accessing, using, and providing
information to or through the Platform, you acknowledge that you have reviewed
and accepted our Privacy Policy, and you consent to all actions taken by us with
respect to your information in compliance therewith. We reserve the right to
transfer your personal information in the event of a transfer of ownership of
Applause or the acquisition of substantially all the assets of Applause related
to the business which collected such information, such as acquisition by or
merger with another company. In such an event, Applause will notify you if you
have provided an email address when information about such users is transferred.
8. Intellectual Property Ownership; Feedback.
(a) As between you and us, (a) we own all right, title, and interest, including
all intellectual property rights, in and to the Platform and (b) you own all
right, title, and interest, including all intellectual property rights, in and
to Customer Data. Applause shall retain all right, title and interest in and to
its pre-existing materials, software, technologies, methodologies, and know-how,
including but not limited to the Platform. If You or Your Authorized Users send
or transmit any communications to us by mail, email, telephone, or otherwise,
suggesting or recommending changes to the Platform, including without
limitation, new features or functionality, or any comments, questions,
suggestions, or the like ("Feedback"), which we may use, and will treat as
non-confidential. You assign all right, title, and interest in, and we are free
to use, without any attribution or compensation to you, any ideas, know-how, or
other intellectual property rights contained in the Feedback.
9. Term and Termination.
(a) Term. This Agreement will continue to apply as long as the SOW is in effect,
unless terminated by either party as set forth herein (the “Term”).
(b). Termination for Breach. Either Party may terminate this Agreement
immediately upon written notice in the event that the other Party materially
breaches the Agreement and thereafter: (i) in the case of material breach
resulting from non-payment of amounts due hereunder, has failed to pay such
amounts within ten (10) days after receiving written notice or (ii) has failed
to cure any other material breach (or to commence diligent efforts to cure such
breach that are reasonably acceptable to the terminating Party) within thirty
(30) days after receiving written notice thereof. Customer cannot terminate at
its convenience.
(c) Termination by Applause. Applause may at any time terminate this Agreement
if: (i) it is required to do so by law; (ii) the provision of the Platform to
Customer by Applause is, in Applause’s opinion, no longer commercially viable;
or (iii) Applause has elected to discontinue the Platform.
(d) Effect of Termination. Upon termination, Customer shall immediately
discontinue use of the Applause IP. No termination of this Agreement will affect
Customer's obligation to pay all Fees that may have become due before such
termination. Termination of Customer’s account includes: (i) removal of access
to all offerings within the Platform; (ii) deletion of Customer’s password and
all related information; and (iii) barring further use of the Platform. Upon
expiration or termination, Customer will promptly discontinue use of the
Platform. Sections titled “Customer’s Responsibilities,” “Term and Termination”,
“Ownership,” “Limitation of Liability,” “Indemnification,” “Confidential
Information”, and “General”, shall survive termination.
10. Limited Warranty and Warranty Disclaimer.
(a) Limited Warranty. Applause warrants that the Platform shall be provided in
accordance with industry standards and that the Platform will conform to
Applause’s then current Documentation in all material respects under normal use
and circumstances. If Customer notifies Applause of a breach of warranty,
Applause will at its option, repair, or replace the ACA. This is Customer’s sole
and exclusive remedy for any breach of warranty.
(b) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION OR AN
ORDER FORM AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE THE
PLATFORM IS PROVIDED “AS IS,” AND APPLAUSE MAKES NO (AND HEREBY DISCLAIMS ALL)
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE PLATFORM. APPLAUSE DOES
NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PLATFORM
WILL BE UNINTERRUPTED OR ERROR-FREE. APPLAUSE DOES NOT GUARANTY THE PRIVACY,
SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY
SYSTEM CONNECTED TO THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM APPLAUSE, AN AFFILIATE OF APPLAUSE OR THROUGH THE
WEBSITE OR WEBSITE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER
RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
11. LIMITATION OF LIABILITY.
(a) NO INDIRECT DAMAGES. NEITHER APPLAUSE NOR ITS AFFILIATES WILL BE LIABLE TO
CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL
DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, DATA, PROFITS, OR
GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, OR ANY OTHER
PLATFORM OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, EVEN IF APPLAUSE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
APPLAUSE WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE THE PLATFORM.
(b) DIRECT DAMAGES.THE TOTAL CUMULATIVE LIABILITY OF APPLAUSE ARISING FROM OR
RELATING TO THIS AGREEMENT, THE PLATFORM, OR CONTENT PROVIDED HEREUNDER, WILL
NOT EXCEED THE AMOUNT OF FEES PAID TO APPLAUSE BY CUSTOMER UNDER THIS AGREEMENT
IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST
CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE
EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE
FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN
THIS AGREEMENT AND THAT APPLAUSE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT
THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT APPLAUSE’ SUPPLIERS
WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
CUSTOMERS ARE FULLY LIABLE TO APPLAUSE FOR ANY MISAPPROPRIATION OR UNAUTHORIZED
USE OF APPLAUSE’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE
APPLAUSE PLATFORM). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS
MAY NOT APPLY TO YOU. In no event shall Applause be liable for any damages
arising out of the penetration tests or simulated attacks performed by Applause
security experts and community as part as a security and vulnerability test
cycle.
12. Indemnification.
(a) Applause Indemnification. Provided that Customer complies with the
procedures set forth herein, Applause will defend at its own expense any action
against Customer brought by a third party to the extent that the action is based
upon a claim that the Platform infringes the intellectual property rights of
such third party. Applause will pay those costs and damages finally awarded
against Customer in any such action that are specifically attributable to such
claim or those costs and damages agreed to in a monetary settlement of such
action. If the Platform becomes, or in Applause’s sole opinion is likely to
become, the subject of an infringement claim, Applause may, at its option and
expense, do one of the following: (i) procure for Customer the right to continue
use of the Platform, (ii) modify the Platform so that it becomes non-infringing,
or (iii) refund to Customer any fees prepaid by Customer under the SOW for such
the Platform, prorated for the amount of time remaining in the applicable term,
and terminate the applicable SOW by written notice to Customer. Notwithstanding
the foregoing, Applause will have no obligation under this Section or otherwise
with respect to any infringement claim based upon (1) any use of the Platform
not in accordance with the terms of this Agreement; (2) any use of the Platform
in combination with other the Platform, equipment, software, content, or data
not provided by Applause; or (3) any modification of the Platform by any person
other than Applause or its authorized agents (collectively, the “Excluded
Claims”). This Section states Applause’ entire liability and Customer’s sole and
exclusive remedy for infringement claims and actions.
(b) Indemnification by Customer. Provided that Applause complies with the
applicable procedures set forth herein, Customer will defend at its own expense
any action against Applause brought by a third party to the extent that the
action is based upon any Customer Application. Customer will pay those costs and
damages finally awarded against Applause in any such action that are
specifically attributable to such claim or those costs and damages agreed to in
a monetary settlement of such action.
(c) Procedure. If one Party (the “Indemnitee”) receives any notice of a claim or
other allegation with respect to which the other Party (the “Indemnitor”) has an
obligation of indemnity hereunder, then the Indemnitee will, within 15 days of
receipt of such notice, give the Indemnitor written notice of such claim or
allegation stating the facts and circumstances surrounding the claim. The
Indemnitee will not make any payment or incur any costs or expenses with respect
to such claim, except as requested by the Indemnitor or as necessary to comply
with this procedure. The Indemnitee will not make any admission of liability or
take any other action that limits the ability of the Indemnitor to defend the
claim. The Indemnitor shall immediately assume the full control of the defense
or settlement of such claim or allegation, including the selection and
employment of counsel, and shall pay all authorized costs and expenses of such
defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor,
in the defense or settlement of the claim. The Indemnitee shall have the right,
at its own expense, to employ separate counsel and participate in the defense or
settlement of the claim. The Indemnitor shall have no liability for costs or
expenses incurred by the Indemnitee, except to the extent authorized by the
Indemnitor or pursuant to this procedure.
13. Export Regulation & Economic Sanction.
Your use of Applause’s Platform, and your utilization of Applause’s Platform are
subject to export controls administered by the United States. Customer agrees to
comply with all U.S. export and re-export control laws and regulations and the
U.S. economic sanctions, including the Export Administration Regulations (“EAR”)
administered by the U.S. Department of Commerce, the laws and regulations
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control, and the International Traffic in Arms Regulations (“ITAR”) administered
by the U.S. Department of State, and not cause Applause to violate the same.
Without limiting the foregoing, Customer covenants that Customer shall not –
directly or indirectly – sell, export, re-export, transfer, divert, or otherwise
dispose of the Platform, software, or technology (including the Customer App
derived from or based on such technology) received from Applause under this
Agreement to or for use in or by any country (such as Cuba, Iran, North Korea,
Sudan, or Syria), entity, or person subject to restrictions under the laws or
regulations of any jurisdiction, including without limitation, the U.S., without
providing advance notification to Applause and obtaining prior authorization
from the relevant government authorities as required by law and regulation.
14. General
(a) Governing Law and Jurisdiction. This Agreement, and any claim, dispute or
controversy of whatever nature arising out of or relating to this Agreement,
will be governed by the laws of the Commonwealth of Massachusetts, without
giving effect to any conflicts of laws principles that require the application
of the laws of a different jurisdiction. Any action or proceeding arising from
this Agreement must be brought in the state or federal courts located in
Middlesex County, Massachusetts. Each Party irrevocably submits to the exclusive
jurisdiction and venue of any such court in any such action.
(b) Waivers. All waivers must be in writing. Any waiver or failure to enforce
any provision of this Agreement on one occasion will not be deemed a waiver of
any other provision or of such provision on any other occasion. If any provision
of this Agreement is unenforceable, such provision will be changed and
interpreted to accomplish the objectives of such provision to the greatest
extent possible under applicable law and the remaining provisions will continue
in full force and effect.
(c) Interpretation, Headings, Advice of Counsel, and Drafting. Headings used in
this Agreement are provided for convenience only, and will not in affect the
meaning or interpretation of each section. Parties acknowledge they have been
advised by counsel of their own choosing, played equal parts in negotiating this
Agreement and that its terms will be interpreted without any bias against one
Party as drafter.
(d) Notices. All notices required will be in writing, delivered personally, by
email, or by nationally recognized overnight courier (e.g., FedEx) at the
Parties’ respective addresses. All notices will be deemed effective upon
personal delivery, or when received if sent by email or overnight courier.
Either Party may change its address by giving notice of the new address to the
other Party.
(e) Force Majeure. Applause shall not be liable for delay or non-performance of
its obligations hereunder if the cause of delay or non-performance is an event
which is unforeseeable, beyond its control, and cannot be remedied by the
exercise of reasonable diligence, including without limitation acts of God, acts
of government, flood, fire, earthquakes, a pandemic, civil unrest, acts of
terror, strikes, telecommunications, Internet or hosting facility failures or
delays involving hardware, software or power systems not within Applause’s
possession or reasonable control, and denial of the Platform attacks (each a
“Force Majeure Event”). Applause shall be relieved from its obligations (or part
thereof) as long as the Force Majeure Event lasts and hinders the performance of
said obligations (or part thereof), it being understood that a Force Majeure
Event shall not excuse Customer’s obligation to pay invoices due in accordance
with its provisions. Applause shall promptly notify Customer and make reasonable
efforts to mitigate the effects of the Force Majeure Event with reasonable
dispatch.
(f) Integration. This Agreement and any SOW, and schedules constitute the final,
complete, and exclusive agreement between the parties regarding the subject
hereof and supersede all prior or contemporaneous agreements, understandings,
and communication, whether written or oral. In the event of any conflict between
the terms of this Agreement and the terms of any SOW or schedules, this
Agreement will govern unless the SOW or schedule refers to the provision of this
Agreement over which it will prevail.
(g) Update to Agreement. The current version of this Agreement is set forth
above. Applause may from time to time update or create new versions of this
Agreement.
(h) Assignment. This Agreement and any rights granted to Customer hereunder, are
non-transferable, non-exclusive, non-assignable, limited and personal to
Customer. Neither Party may assign its interest in this Agreement without the
other Party’s prior written consent, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Applause may transfer and/or assign
some or all of this Agreement by operation of law due to a merger or change of
control, without prior notice to Customer or Customer’s consent. “Change of
control” means consolidation, or any sale of all or substantially all of
Applause’s assets or any other transaction in which more than 50% of its voting
securities are transferred. This Agreement will inure to the benefit of, and
bind the Party’s successors and permitted assigns. Unless otherwise agreed, no
assignment by either Party shall relieve the assignor from its obligations
pursuant to this Agreement.
(i) Publicity. Unless otherwise agreed, Applause may refer to Customer as an
Applause customer on Applause’s website and in sales presentations, and may use
Customer’s name and logo for such purposes. Neither party will issue a press
release announcing its relationship, without the other party’s prior approval.
(j) Remedies. Except as otherwise expressly specified in this Agreement, the
rights and remedies provided in this Agreement are cumulative and in addition to
any other rights and remedies available to such Party at law or in equity.
Customer agrees that any actual or threatened breach of any confidentiality
obligations or license restrictions will constitute irreparable harm for which
monetary damages would be an inadequate remedy, and that in such event Applause
will be entitled to obtain immediate injunctive relief.
(k) Severability. The invalidity, illegality, or unenforceability of any
provision does not affect any other provision herein or the validity, legality,
or enforceability of such provision in any other jurisdiction. Any failure to
act by us with respect to a breach of this Agreement by you or others does not
constitute a waiver and will not limit our rights with respect to such breach or
any subsequent breaches.
(l) Update to Terms of Use. The current version of this Agreement is set forth
above. Applause may from time to time update or create new versions of this
Agreement which will be posted here.


V. APPLAUSE CODELESS AUTOMATION TERMS OF USE

This Applause Codeless Automation Agreement (this "Agreement") is a binding
contract between you or the company you represent ("Customer," "You," or "Your")
and Applause App Quality, Inc. ("Applause," "we," or "us"). This Agreement
governs your access to and use of the Applause Codeless Automation product. This
Agreement incorporates by reference the terms of Applause’s Acceptable Use
Policy. PLEASE READ CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. IF
YOU DO NOT AGREE TO THESE TERMS, YOU CANNOT ACCESS THIS PRODUCT. BY CLICKING “I
AGREE” AFTER READING THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS.

1. Definitions.
"Applause IP" means the Applause Codeless Automation, the Documentation, and all
intellectual property provided to the Customer in connection with the foregoing.
Applause IP includes Aggregated Statistics and any information, data, or other
content derived from Applause's monitoring of Customer's access to or use of the
Applause Codeless Automation, but does not include Customer Data.
"Applause Codeless Automation" or “ACA” means the services provided by Applause
under this Agreement that are detailed on Applause's website available at
codeless.applause.com.
"Authorized User" means Customer and its employees, consultants, contractors,
and agents (i) who are authorized by Customer to access and use the ACA under
the rights granted to Customer pursuant to this Agreement and (ii) for whom
access to the ACA has been purchased hereunder.
“Collected Data” means data and information (other than Aggregated Statistics as
defined herein) collected by Applause from or through Customer Applications in
the provision of the ACA.
“Customer Application” means Customer’s developed software applications.
“Customer Content” means, (other than Aggregated Statistics), information, data,
and other content, submitted, uploaded or otherwise transmitted by Customer or
any other Authorized User through the ACA.
"Documentation" means Applause's online user guides relating to the ACA either
electronically or in hard copy form/end user documentation, available at
support.applause.com and help.utest.com.
“Intellectual Property Rights” or “IPR” means unpatented inventions, patent
applications, patents, design rights, copyrights, trademarks, ACA marks, trade
names, domain name rights, mask work rights, know-how and other trade secret
rights, and all other intellectual property rights, derivatives thereof, and
forms of protection of a similar nature anywhere in the world.
“Order” means Applause’s standard order form or Statement of Work (“SOW”) that
(i) specifies the use and access to the ACA; (ii) references this Agreement; and
(iii) is signed by both Parties.
“Subscription Term” means the period where You are authorized to access the ACA
per an Order.
“Test Scripts” are the output and deliverable that Applause provides subject to
your purchase hereunder.
“Territory” means the territory set forth in the applicable Order Form.
2. Access and Use.
(a) Access. Subject to Your compliance with the Agreement and Order, Applause
grants You a non-exclusive, non-transferable, non-sublicensable right solely to
have Your Authorized Users access the features and functions of the ACA per an
Order solely for Your internal business purposes and solely for the Subscription
Term. You are responsible for your Authorized Users’ acts and omissions. You
will notify Applause immediately of any unauthorized use or any suspected breach
of security related to the ACA.
(b) Documentation. Subject to this Agreement, Applause hereby grants you a
non-exclusive, non-sublicensable, non-transferable license for Authorized Users
to use the Documentation during the Subscription Term solely for your internal
business purposes in connection with use of the ACA.
(c) Use Restrictions. You and your Authorized Users are not permitted to use the
ACA, or Documentation for any purposes beyond the scope granted herein. You
shall not, and shall not permit any Authorized Users to: (i) copy, modify, or
create derivative works of the ACA, or Documentation; (ii) rent, lease, lend,
sell, license, sublicense, assign, distribute, publish, transfer, or otherwise
make available the ACA or Documentation except as expressly permitted herein;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise
attempt to derive or gain access to any software component of the ACA; (iv)
remove any proprietary notices from the ACA or Documentation; or (v) use the ACA
or Documentation for any purpose that infringes, misappropriates, or otherwise
violates any intellectual property right or other right of any person, or in
violation of law, regulation, or rule.
(d) Aggregated Statistics. Applause may monitor Customer's use of the ACA and
collect and compile data and information in an aggregated and anonymized manner,
including statistical and performance information related to the operation of
the ACA ("Aggregated Statistics"). All right, title, and interest in Aggregated
Statistics, and all intellectual property rights therein, solely belong to
Applause. You acknowledge that Applause may compile Aggregated Statistics based
on Customer Data input into the ACA. You agree that Applause may (i) make
Aggregated Statistics publicly available in compliance with applicable law, and
(ii) use Aggregated Statistics to the extent permitted under applicable law
provided that such Aggregated Statistics do not identify Customer or Customer's
Confidential Information.
(e) Reservation of Rights & Ownership. Except as expressly set forth in this
Agreement, Applause and its licensors retain all right, title, and interest in
and to the ACA, and all related Applause IP. Applause reserves all rights not
expressly granted to Customer under this Agreement. Customer and its licensors
retain all right, title, and interest in and to the Customer Application (other
than any portion of the ACA contained within the Customer Application), and all
related IPR. This Agreement is not a sale and does not convey to Customer any
rights of ownership in the ACA, Applause offerings or services or IPR. The
Applause name, logo, and the ACA names are trademarks of Applause or its
suppliers, and no right or license is granted to use them. Customer shall be
entitled to retain the automated Test Scripts created via the ACA based on
Customer Content and Customer Applications. Your will not accrue residual rights
to the ACA, including any rights to the IPR.
(f) Suspension. Applause may temporarily suspend Your access to the ACA if: (i)
Applause reasonably determines that (A) there is a threat or attack on any of
the Applause IP; (B) Customer's or any other Authorized User's use of the
Applause IP disrupts or poses a security risk to the Applause IP or to any other
customer or vendor of Applause; (C) Customer or any other Authorized User is
using the Applause IP for fraudulent or illegal activities; (D) subject to
applicable law, Customer has ceased to continue its business in the ordinary
course, made an assignment for the benefit of creditors or similar disposition
of its assets, or become the subject of any bankruptcy, reorganization,
liquidation, dissolution, or similar proceeding; or (E) Applause's provision of
the ACA is prohibited by applicable law; (ii) any Applause vendor has suspended
or terminated Applause's access to or use of any third-party services or ACA
required to enable Customer to access the ACA; or (iii) for non-payment under an
invoice (any such suspension described in subclause (i), (ii), or (iii), a
"Service Suspension"). Applause shall use commercially reasonable efforts to
provide notice of any Service Suspension to Customer and to provide updates
regarding resumption of access to the ACA following Service Suspension.
(g) Evaluation Service. If you are granted a 15-day or 30-day evaluation trial
of the ACA (“Evaluation Service”)(as stipulated in a written Order) then this
Section 2(g) governs your use. You will not have access to the Evaluation
Service or to any data or content used therein, after the Evaluation Service
ends. The Evaluation Service is: (a) free of charge; (b) without support; (c)
“AS IS”; and (d) without indemnification or warranty. You must not upload any
sensitive data or data regulated by law or regulation into the Evaluation
Service. If you put that data into an Evaluation Service, you do so at your own
risk and Applause is not responsible for the consequences of that use. The
aggregate liability (excluding indirect damages, for which we expressly disclaim
all liability) of Applause of an Evaluation Service will not exceed $1.00 USD.
3. Customer Responsibilities & Customer Content.
(a) Customer Application. Customer is solely responsible for the Customer
Application and all costs associated with its development. Without limiting the
foregoing: Customer: (i) may need to submit Customer Applications to a mobile
system operator for approval prior to distribution and Applause does not
guarantee acceptance of the Customer Application; (ii) will bear sole
responsibility for the Customer Application support; (iii) will require any end
user of the Customer Application to agree to terms with Customer at least as
protective of Applause and the ACA as this Agreement; (iv) will ensure that
Customer Application’s end user provides all necessary consents for Applause to
collect the Collected Data, and (v) will follow applicable regulations
promulgated by each applicable mobile system operator. Applause reserves the
right to reject or suspend use of ACA due to a Customer Application.
(b) Rights. Customer will ensure the legality and appropriateness of the
Customer Applications and the Customer Content and that neither infringes the
intellectual property rights, any right of right of privacy or publicity (of any
third party) or are defamatory. Applause reserves the right to remove all
Customer Content that breaches Customer’s obligations under this Section.
(c) License to Applause. Customer Content will be and remain Customer’s
property. Customer hereby grants to Applause a limited, royalty-free, license
during the Subscription Term to use, copy, display, disclose, modify and
distribute the Customer Content solely for the purpose of providing the ACA.
(d) Sensitive Data. Customer agrees that the amount and type of Collected Data
is determined by Customer through and Applause cannot control the data it
collects from or through the Customer Application. Customer will not submit: (i)
any personally identifiable information, except as necessary for the
establishment of an account for an Authorized User; (ii) any protected health
information regulated by HIPAA or any similar federal or state laws, rules or
regulations or other medical or health information identifiable with a
particular individual; or (iii) any other information subject to regulation or
protection under specific laws such as the Gramm-Leach-Bliley Act (or related
rules or regulations) ((i) through (iii), collectively, “Sensitive Data”).
Customer agrees that Applause is not acting as a Business Associate or
subcontractor (as such terms are defined and used in HIPAA) and that the ACA is
not HIPAA compliant. “HIPAA” means the Health Insurance Portability and
Accountability Act, as amended. Applause has no liability under this Agreement
for Sensitive Data.
(e) Modifications. Applause reserves the right to modify the ACA at any time
without liability as long as such modifications are made across Applause’s
customer base and do not materially degrade the functionality of ACA. In the
event that Applause adds additional functionality to any ACA, Applause may
condition the implementation of such modifications on Customer’s payment of
additional fees, and Customer will not be entitled to such new functionality
unless Customer pays such fees, provided Customer may continue to use the prior
version, without additional fees.
(f) Account Use. You are liable for all uses of the ACA and Documentation
whether such access is permitted by or in violation of this Agreement. You are
responsible for (i) keeping your passwords and access credentials associated
with the ACA confidential; and (ii) all acts and omissions of Authorized Users.
Any act or omission by an Authorized User that would constitute a breach of this
Agreement will be deemed a breach of this Agreement.
(g) Customer Data. You grant Applause a non-exclusive, royalty-free, worldwide
license to reproduce, distribute, and otherwise use and display the Customer
Data and perform all acts with respect to the Customer Data as necessary for
Applause to provide the ACA to you, and a non-exclusive, perpetual, irrevocable,
royalty-free, worldwide license to reproduce, distribute, modify, and otherwise
use and display Customer Data incorporated within the Aggregated Statistics. You
will ensure that Customer Data will not violate any policy or terms of this
Agreement or any applicable law. You are solely responsible for the development,
content, operation, maintenance, and use of Customer Data.
(h) Third-Party Platform. The Services may permit access to a third party
platform. Such third party platforms are subject to their own terms and
conditions, for acceptance within the ACA.
(i) Fees and Payment. Customer will pay Applause the fees stated in the Order
net 30 days of invoice, unless otherwise agreed. All payment obligations are
non-cancelable and nonrefundable. All Fees will be paid in U.S. dollars and
exclude applicable sales, use, and other taxes. Unless otherwise agreed,
Applause reserves the right to increase the fees upon renewal of each
Subscription Term. If payments under this Agreement are subject to sales and use
taxes in any jurisdiction and Customer has not paid to Applause the sales tax
specified in any invoice, Customer will be responsible for the payment of such
taxes and any related penalties or interest to the relevant tax authority.
Customer will indemnify Applause for any liability or expense Applause may incur
in connection with such sales and use taxes. Upon Applause’s request, Customer
will provide Applause with receipts issued by the appropriate taxing authority,
or other such evidence that Customer has paid all applicable taxes.
6. Confidential Information. Each party agrees that any non-public data,
information and other materials regarding the products, services or business of
a party (and/or, if either party is bound to protect the confidentiality of any
third party’s information, of a third party) provided to the other party where
such information is marked or otherwise communicated as being “proprietary” or
“confidential” or the like, or where such information should, by its nature, be
reasonably considered to be confidential and/or proprietary shall be deemed the
“Confidential Information” of the other Party. Without limiting the foregoing,
the ACA, any performance data, benchmark results, and technical information
relating thereto, Applause’s pricing information shall be deemed the
Confidential Information of Applause. Notwithstanding the foregoing,
Confidential Information shall not include information which: (i) is already
known to the Receiving Party prior to disclosure by the Disclosing Party; (ii)
becomes publicly available without fault of the Receiving Party; (iii) is
rightfully obtained by the Receiving Party from a third party without
restriction as to disclosure, or (iv) is approved for release by written
authorization of the Disclosing Party. Each party (the “Receiving Party”) agrees
to keep the Confidential Information of the other party (the “Disclosing Party”)
in confidence and not to use such Confidential Information except in performing
hereunder.
7. Privacy Policy. Applause complies with its Privacy Policy available at
https://www.applause.com/privacy-policy. By accessing, using, and providing
information to or through the ACA, you acknowledge that you have reviewed and
accepted our Privacy Policy, and you consent to all actions taken by us with
respect to your information in compliance therewith. We reserve the right to
transfer your personal information in the event of a transfer of ownership of
Applause or the acquisition of substantially all the assets of Applause related
to the business which collected such information, such as acquisition by or
merger with another company. In such an event, Applause will notify you if you
have provided an email address when information about such users is transferred.
8. Intellectual Property Ownership; (a)As between you and us, (a) we own all
right, title, and interest, including all intellectual property rights, in and
to the ACA and (b) you own all right, title, and interest, including all
intellectual property rights, in and to Customer Data. Applause shall retain all
right, title and interest in and to its pre-existing and independently developed
materials, software, technologies, methodologies, and know-how, including but
not limited to the ACA.
9. Term and Termination.
(a) Term. This Agreement will continue to apply as long as the Order is in
effect, unless terminated by either party as set forth herein (the “Term”).
(b) PoC Term. Upon the expiration of a Proof of Concept (“PoC”) Term, an initial
12-month Subscription Term shall begin, unless Customer provides Applause with
written notice of non-renewal at least fifteen (15) days prior to the end of the
PoC Term.
(c) Renewals. The Subscription Term stated in an Order will automatically renew
for successive periods equal in length to the initial Subscription Term, unless
either Party provides notice the other of intent not to renew, no less than
ninety (90) days prior to the end of the then applicable Subscription Term.
(d). Termination for Breach. Either Party may terminate this Agreement
immediately upon written notice in the event that the other Party materially
breaches the Agreement and thereafter: (i) in the case of material breach
resulting from non-payment of amounts due hereunder, has failed to pay such
amounts within ten (10) days after receiving written notice or (ii) has failed
to cure any other material breach (or to commence diligent efforts to cure such
breach that are reasonably acceptable to the terminating Party) within thirty
(30) days after receiving written notice thereof. Customers cannot terminate at
its convenience.
(e) Termination by Applause. Applause may at any time upon written notice to
Customer terminate this Agreement if: (i) it is required to do so by law; (ii)
the provision of the ACA to Customer by Applause is, in Applause’s opinion, no
longer commercially viable; or (iii) Applause has elected to discontinue the
ACA.
(f) Effect of Termination. Upon termination, Customer shall immediately
discontinue use of the Applause IP. No termination of this Agreement will affect
Customer's obligation to pay all Fees that may have become due before such
termination. Termination of Customer’s account includes: (i) removal of access
to all offerings within the ACA; (ii) deletion of Customer’s password and all
related information; and (iii) barring further use of the ACA. Upon expiration
or termination, Customer will promptly discontinue use of the ACA. Sections
titled “Customer’s Responsibilities,” “Term and Termination”, “Ownership,”
“Limitation of Liability,” “Indemnification,” “Confidential Information”, and
“General”, shall survive termination.
10. Limited Warranty, Warranty Disclaimer & Support Terms.
(a) Limited Warranty. Applause warrants that the ACA shall be provided in
accordance with Applause’s then current Documentation under normal use and
circumstances, provided that ACA has at all times been used in accordance with
the Agreement. If Customer notifies Applause of a breach of warranty, Applause
will reperform. This is Customer’s sole and exclusive remedy for any breach of
warranty.
(b) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION OR AN
ORDER FORM AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ACA IS
PROVIDED “AS IS,” AND APPLAUSE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES,
REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE ACA. APPLAUSE DOES NOT
WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PLATFORM WILL
BE UNINTERRUPTED OR ERROR-FREE. APPLAUSE DOES NOT GUARANTY THE PRIVACY, SECURITY
OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM
CONNECTED TO THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM APPLAUSE, AN AFFILIATE OF APPLAUSE OR THROUGH THE WEBSITE
OR WEBSITE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON
HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY
FROM JURISDICTION TO JURISDICTION.
(C) Support Terms. Applause shall provide support services from 8:00 am Eastern
time through 6:00 pm Eastern time Monday through Friday. Applause will make
available to Customer email support services at acasupport@applause.com that
will be the initial point of contact and response for addressing customer
problems.
11. LIMITATION OF LIABILITY.
(a) NO INDIRECT DAMAGES. NEITHER APPLAUSE NOR ITS AFFILIATES WILL BE LIABLE TO
CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL
DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, DATA, PROFITS, OR
GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE ACA, OR ANY OTHER
PLATFORM OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, EVEN IF APPLAUSE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
APPLAUSE WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PLATFORM.
(b) LIMITATION OF LIABILITY.THE TOTAL CUMULATIVE LIABILITY OF APPLAUSE ARISING
FROM OR RELATING TO THIS AGREEMENT, THE ACA, OR CONTENT PROVIDED HEREUNDER, WILL
NOT EXCEED THE AMOUNT OF FEES PAID TO APPLAUSE BY CUSTOMER UNDER THIS AGREEMENT
IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST
CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE
EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE
FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN
THIS AGREEMENT AND THAT APPLAUSE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT
THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT APPLAUSE’ SUPPLIERS
WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
CUSTOMERS ARE FULLY LIABLE TO APPLAUSE FOR ANY MISAPPROPRIATION OR UNAUTHORIZED
USE OF APPLAUSE’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO THE
APPLAUSE PLATFORM). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS
MAY NOT APPLY TO YOU. In no event shall Applause be liable for any damages
arising out of the penetration tests or simulated attacks performed by Applause
security experts and community as part as a security and vulnerability test
cycle.
12. Indemnification.
(a) Applause Indemnification. Provided that Customer complies with the
procedures set forth herein, Applause will defend at its own expense any action
against Customer brought by a third party to the extent that the action is based
upon a claim that the ACA infringes the intellectual property rights of such
third party. Applause will pay those costs and damages finally awarded against
Customer in any such action that are specifically attributable to such claim or
those costs and damages agreed to in a monetary settlement of such action. If
the ACA becomes, or in Applause’s sole opinion is likely to become, the subject
of an infringement claim, Applause may, at its option and expense, do one of the
following: (i) procure for Customer the right to continue use of the ACA, (ii)
modify the ACA so that it becomes non-infringing, or (iii) refund to Customer
any fees prepaid by Customer under the Order for such ACA, prorated for the
amount of time remaining in the applicable term, and terminate the applicable
Order by written notice to Customer. Notwithstanding the foregoing, Applause
will have no obligation under this Section or otherwise with respect to any
infringement claim based upon (1) any use of the ACA not in accordance with the
terms of this Agreement; (2) any use of the ACA in combination with other ACA,
equipment, software, content, or data not provided by Applause; or (3) any
modification of the ACA by any person other than Applause or its authorized
agents (collectively, the “Excluded Claims”). This Section states Applause’
entire liability and Customer’s sole and exclusive remedy for infringement
claims and actions.
(b) Indemnification by Customer. Provided that Applause complies with the
applicable procedures set forth herein, Customer will defend at its own expense
any action against Applause brought by a third party to the extent that the
action is based upon any Customer Application. Customer will pay those costs and
damages finally awarded against Applause in any such action that are
specifically attributable to such claim or those costs and damages agreed to in
a monetary settlement of such action.
(c) Procedure. If one Party (the “Indemnitee”) receives any notice of a claim or
other allegation with respect to which the other Party (the “Indemnitor”) has an
obligation of indemnity hereunder, then the Indemnitee will, within 15 days of
receipt of such notice, give the Indemnitor written notice of such claim or
allegation stating the facts and circumstances surrounding the claim. The
Indemnitee will not make any payment or incur any costs or expenses with respect
to such claim, except as requested by the Indemnitor or as necessary to comply
with this procedure. The Indemnitee will not make any admission of liability or
take any other action that limits the ability of the Indemnitor to defend the
claim. The Indemnitor shall immediately assume the full control of the defense
or settlement of such claim or allegation, including the selection and
employment of counsel, and shall pay all authorized costs and expenses of such
defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor,
in the defense or settlement of the claim. The Indemnitee shall have the right,
at its own expense, to employ separate counsel and participate in the defense or
settlement of the claim. The Indemnitor shall have no liability for costs or
expenses incurred by the Indemnitee, except to the extent authorized by the
Indemnitor or pursuant to this procedure.
13. Export Regulation & Economic Sanction.
Your use of Applause’s ACA, and your utilization of Applause’s ACA are subject
to export controls administered by the United States. Customer agrees to comply
with all U.S. export and re-export control laws and regulations and the U.S.
economic sanctions, including the Export Administration Regulations (“EAR”)
administered by the U.S. Department of Commerce, the laws and regulations
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control, and the International Traffic in Arms Regulations (“ITAR”) administered
by the U.S. Department of State, and not cause Applause to violate the same.
Without limiting the foregoing, Customer covenants that Customer shall not –
directly or indirectly – sell, export, re-export, transfer, divert, or otherwise
dispose of any ACA, software, or technology (including ACA derived from or based
on such technology) received from Applause under this Agreement to or for use in
or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria), entity, or
person subject to restrictions under the laws or regulations of any
jurisdiction, including without limitation, the U.S., without providing advance
notification to Applause and obtaining prior authorization from the relevant
government authorities as required by those laws and regulations.
14. General
(a) Governing Law and Jurisdiction. This Agreement, and any claim, dispute or
controversy of whatever nature arising out of or relating to this Agreement,
will be governed by the laws of the State of Delaware, without giving effect to
any conflicts of laws principles that require the application of the laws of a
different jurisdiction. Any action or proceeding arising from this Agreement
must be brought in the state or federal courts located in Wilmington, Delaware.
Each Party irrevocably submits to the exclusive jurisdiction and venue of any
such court in any such action.
(b) Waivers. All waivers must be in writing. Any waiver or failure to enforce
any provision of this Agreement on one occasion will not be deemed a waiver of
any other provision or of such provision on any other occasion. If any provision
of this Agreement is unenforceable, such provision will be changed and
interpreted to accomplish the objectives of such provision to the greatest
extent possible under applicable law and the remaining provisions will continue
in full force and effect.
(c) Interpretation, Headings, Advice of Counsel, and Drafting. Headings used in
this Agreement are provided for convenience only, and will not in affect the
meaning or interpretation of each section. Parties acknowledge they have been
advised by counsel of their own choosing, played equal parts in negotiating this
Agreement and that its terms will be interpreted without any bias against one
Party as drafter.
(d) Notices. All notices required will be in writing, delivered personally, by
email, or by nationally recognized overnight courier (e.g., FedEx) at the
Parties’ respective addresses. All notices will be deemed effective upon
personal delivery, or when received if sent by email or overnight courier.
Either Party may change its address by giving notice of the new address to the
other Party.
(e) Force Majeure. Applause shall not be liable for delay or non-performance of
its obligations hereunder if the cause of delay or non-performance is an event
which is unforeseeable, beyond its control, and cannot be remedied by the
exercise of reasonable diligence, including without limitation acts of God, acts
of government, flood, fire, earthquakes, a pandemic, civil unrest, acts of
terror, strikes, telecommunications, Internet or hosting facility failures or
delays involving hardware, software or power systems not within Applause’s
possession or reasonable control, and denial of ACA attacks (each a “Force
Majeure Event”). Applause shall be relieved from its obligations (or part
thereof) as long as the Force Majeure Event lasts and hinders the performance of
said obligations (or part thereof), it being understood that a Force Majeure
Event shall not excuse Customer’s obligation to pay invoices due in accordance
with its provisions. Applause shall promptly notify Customer and make reasonable
efforts to mitigate the effects of the Force Majeure Event with reasonable
dispatch.
(f) Integration. This Agreement and any SOW, and schedules constitute the final,
complete, and exclusive agreement between the parties regarding the subject
hereof and supersede all prior or contemporaneous agreements, understandings,
and communication, whether written or oral. In the event of any conflict between
the terms of this Agreement and the terms of any SOW or schedules, this
Agreement will govern unless the SOW or schedule refers to the provision of this
Agreement over which it will prevail.
(g) Update to Agreement. The current version of this Agreement is set forth
above. Applause may from time to time update or create new versions of this
Agreement.
(h) Assignment. This Agreement and any rights granted to Customer hereunder, are
non-transferable, non-exclusive, non-assignable, limited and personal to
Customer. Neither Party may assign its interest in this Agreement without the
other Party’s prior written consent, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Applause may transfer and/or assign
some or all of this Agreement by operation of law due to a merger or change of
control, without prior notice to Customer or Customer’s consent. “Change of
control” means consolidation, or any sale of all or substantially all of
Applause’s assets or any other transaction in which more than 50% of its voting
securities are transferred. This Agreement will inure to the benefit of, and
bind the Party’s successors and permitted assigns. Unless otherwise agreed, no
assignment by either Party shall relieve the assignor from its obligations
pursuant to this Agreement.
(i) Publicity. Unless otherwise agreed, Applause may refer to Customer as an
Applause customer on Applause’s website and in sales presentations, and may use
Customer’s name and logo for such purposes. Neither party will issue a press
release announcing its relationship, without the other party’s prior approval.
(j) Remedies. Except as otherwise expressly specified in this Agreement, the
rights and remedies provided in this Agreement are cumulative and in addition to
any other rights and remedies available to such Party at law or in equity.
Customer agrees that any actual or threatened breach of any confidentiality
obligations or license restrictions will constitute irreparable harm for which
monetary damages would be an inadequate remedy, and that in such event Applause
will be entitled to obtain immediate injunctive relief.
(k) Severability. The invalidity, illegality, or unenforceability of any
provision does not affect any other provision herein or the validity, legality,
or enforceability of such provision in any other jurisdiction. Any failure to
act by us with respect to a breach of this Agreement by you or others does not
constitute a waiver and will not limit our rights with respect to such breach or
any subsequent breaches.


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