Version Date: June 2016
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
IF YOU INTEND TO USE THE SERVICE IN CONJUNCTION WITH PRODUCTS THAT ARE COMPETITIVE WITH APTTUS “QUOTE TO CASH” MODULES, WHICH MAY HAVE BEEN PROVIDED BY A THIRD PARTY, THE SERVICE MAY NOT FUNCTION WITH THOSE PRODUCTS. YOU MAY NOT ACCESS THE SERVICE IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
THE SERVICE MAY NOT BE USED IN CONJUCTION WITH ANY APPLICATION THAT IS SIMILAR TO AN APPLICATION ALREADY SOLD BY APTTUS, E.G., QUOTING, WITHOUT THE PRIOR WRITTEN CONSENT OF APTTUS.
IF YOU CHOOSE TO USE X-AUTHOR FOR EXCEL APPLICATION TEMPLATES (“APPS”) CREATED BY A THIRD PARTY, IN NO EVENT SHALL APTTUS HAVE ANY LIABILITY TO CUSTOMER OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
By agreeing to the Terms, Customer represents and warrants that each user of the Service has a valid license to any required third party applications, including Microsoft Office and Microsoft Dynamics CRM (“Dynamics”).
If you register for a Free Trial, the Terms will also govern your use of the Service during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
1.1 “Add-ins” means the Apttus add-in software for Microsoft Office or other software components provided by Apttus.
1.2 "Customer Data" means all electronic data or information exchanged between Customer’s Dynamics Instance and Microsoft Office.
1.3 “Free Trial” If Customer registers with Apttus or through Microsoft Pinpoint or Microsoft Marketplace for a free trial of the Service, Apttus will make the Service available to Customer on a trial basis free of charge for the Subscription Term. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. FREE TRIALS MAY ONLY BE INSTALLED IN SANDBOX ENVIRONMENTS AND USED SOLELY FOR EVALUATION PURPOSES AND NOT FOR THE MAINTENANCE OR PROCESSING OF ANY DATA ON WHICH CUSTOMER WOULD TYPICALLY RELY IN A PRODUCTION CAPABLE ENVIRONMENT.
1.4 “Instance” means the virtual space provided to Customer by Microsoft , or Customer’s on-premise Dynamics system, and which includes all of Customer’s data and Microsoft applications
1.5 "Order Form" means the ordering documents (including online commerce) representing the purchase of the Service as agreed to between the parties that specify the number of subscriptions ordered, subscription term, applicable fees, and any additional terms and conditions.
1.6 "Purchased Service" means Service that Customer purchases under an Order Form, as distinguished from that provided pursuant to a free trial.
1.7 “Service” means the combination of Add-ins and the Apttus web-based components installed in the Instance pursuant to a Free Trial or a Purchased Service.
1.8 “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials is the earlier of (a) 30 days from the date of Service installation, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service.
1.9 "Users" means Customer's employees, consultants, contractors, agents, or partners who are authorized to use the Service by the Customer.
2. Provision of Service. APTTUS shall, in compliance with all applicable local, state, federal, and foreign laws, make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement.
3. Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify APTTUS promptly of any such unauthorized use; (ii) comply with all applicable local, state, federal, and foreign laws in using the Service; and (iii) virus check any file being uploaded or saved to the Service.
4. Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Service or (iii) attempt to gain unauthorized access to the Service.
5. Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term. Unless otherwise stated, APTTUS' fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). If APTTUS has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides APTTUS with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Invoicing & Payment. License fees for the term of the Purchased Service will be invoiced and shall be due in accordance with the terms set forth in the relevant Order Form.
7. License Grant. APTTUS grants to Customer and its Users a worldwide, non-exclusive, non-transferable, non-sublicenseable right to access and use the Service in accordance with the Terms.
8. No Microsoft License. No Microsoft licenses or access to Microsoft systems are included with any X-Author for Excel license. Customer must have an appropriate API-enabled license to the objects or entities they need to access in Dynamics with any X-Author for Excel product.
9. Reservation of Rights. Customer acknowledges that in providing the Service, APTTUS utilizes (i) the apttus.com name, the apttus.com logo, the apttus.com domain name, the X-Author.com domain name, the X-Author name, the X-Author logo, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "APTTUS Technology") and that the APTTUS Technology is covered by intellectual property rights owned or licensed by APTTUS (collectively, "APTTUS IP Rights"). Other than as expressly set forth in this Terms, no license or other rights in or to the APTTUS Technology or APTTUS IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
10. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or APTTUS Technology; (ii) disassemble, reverse engineer, or decompile the Service or APTTUS Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, (C) copy any ideas, features, functions or graphics of the Service or (D) use it in connection with any products that are competitive with Apttus products.
11. Access to Customer Data. The Service merely facilitates the exchange of data between the Instance and Microsoft Office and no Customer data is persisted elsewhere by Apttus. APTTUS may access Customer's user accounts solely at Customer's request to respond to service or technical issues.
12. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms of the Agreement, the Service, the APTTUS Technology, business and marketing plans, technology and technical information, screen and product designs and the interoperability with Dynamics, and business processes. Confidential Information may include third party information for which the disclosing party has a duty of confidentiality.
12.1 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
12.2 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 12, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
13. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. APTTUS represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the APTTUS Technology to grant the rights and licenses granted herein; and (iii) the Service and APTTUS Technology do not infringe any intellectual property rights of any third party.
13.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APTTUS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. APTTUS HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Indemnification. Subject to this Agreement, APTTUS shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Apttus in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to APTTUS; (b) gives APTTUS sole control of the defense and settlement of the Claim (provided that APTTUS may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to APTTUS, at APTTUS' cost, all reasonable assistance. Customer will have the right to participate in the defense, or retain separate counsel, at its own expense.
15. Limitation of Liability. EXCEPT FOR CAUSE OF ACTION RESULTING FROM A VIOLATION OF SECTION 9, 12, OR A PAYMENT OBLIGATION, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO APTTUS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
15.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
16. Term of Agreement. User subscriptions commence on the start date specified in the Order Form and continue for the Subscription Term specified therein. For Purchased Service, at the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period of 1 year, unless (i) Customer notifies APTTUS at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term will increase by 7% over prior Subscription Term. This paragraph shall not apply to any Free Trial which is, instead, offered on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Service, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service at which point this paragraph shall apply to such Purchased Service subscriptions.
17. Uninstall and Delete APTTUS Software. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any APTTUS provided software related to the Service. This includes managed packages or other software that has been installed in any Instance. If requested by APTTUS, APTTUS may be present to validate uninstall activities. Customer will deliver a written statement to this effect.
18. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: 8, 9, 10, 12, and 17.
19. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
20. Venue. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
21. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in these Terms and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail to the extent of any inconsistency.