These Terms and Conditions were last updated on March 3, 2021.
These terms and conditions (this “Agreement”) are referenced within, and incorporated by reference into, certain order forms or statements of work (each, an “Order Form”) executed by each of Aprimo US LLC, a Delaware limited liability company, having an address at 230 W Monroe Street, Suite 1200, Chicago, IL 60606 (“Aprimo”), and the customer or enterprise listed within and signatory to each such Order Form (“Customer”) and effective as of the date shown on the Order Form (“Effective Date”). As such, this Agreement, together with the Order Form in which this Agreement is referenced, constitutes a legal and valid contract binding on each of Aprimo and Customer.
- Upon execution of an Order Form, Customer will have a subscription to the modules of Aprimo’s platform (the “System”) specified in such Order Form, subject to the limitations described therein. The System includes (i) online and/or telephone customer support to Customer in accordance with Aprimo’s customer engagement guide; and (ii) hosting of the System in accordance with its specifications and the Service Level Agreement below. The parties may also agree that Aprimo will provide services associated with the System (“Professional Services”) to Customer, which will be as described in an Order Form executed by the parties. Aprimo may, from time to time, update or modify any component of the System, release new versions of the System, or create new features or functionality related thereto (“Updates”), each of which will, to the extent Aprimo makes such Updates available to other similarly situated Aprimo subscribers, be included in the System. Aprimo reserves the right to develop additional functionality that may become part of future released modules that would require an additional Order Form.
- Aprimo, in connection with each subscription, will make the System available to the applicable number of Customer’s users specified on each Order Form and grants the users a limited, revocable, worldwide, non-exclusive, non-transferable right to access and use the System for internal use during the subscription period set forth in the Order Form. Customer is responsible for: (i) providing its users with equipment and internet services sufficient to access and use the System; (ii) configuring and administering the user accounts in the System and protecting the security of such user accounts; and (iii) ensuring that each of Customer’s permitted users complies with the terms set forth herein. Customer shall use the System solely for its intended purposes, in accordance with the terms of this Agreement, and shall not use the System for the benefit of any third party except as specifically contemplated under this Agreement.
- If, in the course of rendering Professional Services, Aprimo creates and delivers to Customer any work product or deliverables, such work product or deliverables shall remain the exclusive property of Aprimo and Customer shall have a nonexclusive, nontransferable right to use the work product or deliverables for its internal business purposes as part of its subscription to the System.
- Fees. Customer shall pay Aprimo the fees specified in each Order Form (“Fees”) annually in advance, unless otherwise set forth in an Order Form. Any travel and other expenses incurred by Aprimo in completing the Professional Services will be invoiced on a monthly basis as incurred. All payments shall be due thirty (30) days from the date of the invoice. Fees which are more than thirty (30) days overdue shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. Aprimo may suspend Customer’s access to the System if Fees are more than sixty (60) days overdue, until the overdue Fees are paid in full. Customer may not offset fees due under this Agreement and Customer agrees to reimburse Aprimo for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Customer. All Fees exclude applicable taxes and Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions under this Agreement, excluding taxes based solely upon Aprimo’s income derived hereunder. If Customer is tax-exempt, Customer shall provide Aprimo with its tax-exemption number and certificate. Customer shall be responsible for any liability or expense incurred by Aprimo as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected.
- Term. This Agreement commences on the Effective Date and continues until the expiration or termination of the last Order Form entered into under this Agreement. Either party shall be entitled to terminate this Agreement upon written notice to the other party in the event that the other party (i) declares bankruptcy, or (ii) breaches any material term set forth herein and fails to cure such breach within 30 days from the date of receipt of written notice thereof (or, to the extent the applicable breach is not susceptible to cure within a 30 day period, commences actions to cure such breach within such period and diligently pursues such cure until the applicable breach has been remedied). Sections 3 through 11 of this Agreement shall survive any termination of this Agreement.
- Intellectual Property.
- All trademarks, patents, copyrights and other intellectual property rights owned in whole or in part by either party as of the Effective Date shall continue to be owned in the same manner by such party following the Effective Date. Other than as expressly set forth in this Agreement, no license or other rights in or to either party’s intellectual property rights are granted to the other party, and all such licenses and rights are expressly reserved.
- Customer grants to Aprimo a limited, worldwide, non-exclusive, non-transferable right during the subscription period of the applicable Order Form to host, copy, transmit, display, and use Customer intellectual property as necessary for Aprimo to provide the System and Professional Services to the Customer.
- If Customer provides Aprimo with suggestions, enhancements, recommendations, or other feedback on the System (“Feedback”), Customer hereby assigns to Aprimo all right, title, and interest in and to the Feedback and Aprimo is free to use the Feedback for any purpose.
- Each party agrees (i) to treat as confidential all non-public information, confidential information and/or trade secrets of the other party, (ii) not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and (iii) not to disclose such confidential information to any third party except affiliates, subcontractors, service providers, and partners as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. The parties hereby agree that the terms set forth in this Agreement constitute confidential information of both parties and as such, neither party will disclose such terms to any third party other than such party’s legal counsel. Notwithstanding the foregoing, Aprimo shall be entitled to list Customer as a client on Aprimo’s website and/or in marketing materials.
- The obligations set forth in this section shall not extend to information that (i) becomes publicly available without breach of this Agreement; (ii) is known by the receiving party prior to disclosure without a duty of confidentiality; (iii) is rightfully received from a third party without an obligation of confidence; (iv) is independently developed without resort to the information provided by the disclosing party; or (v) is required to be disclosed by law or legal process, provided the other party is given prompt written notice of the requirement for such disclosure.
- The parties agree that a breach of this Section 5 may give rise to irreparable injury and consequently, a party is entitled to seek, in addition to all other remedies available to it, injunctive and other equitable relief without the posting of a bond.
- Representations and Warranties.
- Each party represents and warrants that: (i) it has the authority to enter into this Agreement and comply with its obligations hereunder; and (ii) it will comply with all applicable laws and regulations in carrying out its responsibilities hereunder.
- Aprimo represents and warrants that (i) it will perform all services hereunder in a professional manner consistent with industry practices; and (ii) the System will operate substantially in accordance with the specifications made available to Customer by Aprimo (“Documentation”).
- Except as explicitly set forth herein, neither Aprimo nor its employees, affiliates, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (I) warranties of merchantability, non-infringement, or fitness for a particular purpose, (II) regarding SYSTEM uptime or downtime, or (III) as to the results that may be obtained by the other party by entering into this Agreement and/or the business relationship described in the Order Form(s).
- Customer Restrictions.
- Customer shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of the System, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization.
- Customer shall not: (i) use the System for any content or activity that is libelous, slanderous, defamatory, offensive, scandalous, or obscene, or infringes on any third party’s rights, or violates any applicable law; (ii) introduce into the System any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (iii) perform any load or similar testing without Aprimo’s written consent.
- Customer shall only enter data that it owns or is permitted to store in the System, and Customer shall not enter data that contains sensitive personally identifiable information, including but not limited to credit card numbers, bank account numbers, identification numbers, social security numbers, health information, etc.
- Aprimo will defend or settle any suit brought by a third party against Customer alleging that the System infringes any intellectual property right of any third party and Aprimo shall indemnify Customer for damages awarded or agreed upon in a settlement as a result of such infringement claim, provided that Aprimo is given prompt notice of any such claim and sole control of the defense of such claim, including negotiations, appeals, and settlements. Aprimo shall not enter into any settlement that requires Customer to admit liability or pay any amounts without Customer’s prior written consent. Customer agrees to provide reasonable information and assistance to Aprimo in defending any claim. Notwithstanding the foregoing, Aprimo will not have liability for any claim to the extent that such claim results from: (i) any modification of the System made by any party other than Aprimo; (ii) a modification or enhancement to the System pursuant to designs provided by Customer; or (iii) the combination, operation or use by Customer of the System with any equipment, software, or devices not supplied by Aprimo to the extent the claim would have been avoided if the System were not used in such combination.
- If the System is held to infringe, or in Aprimo’s opinion the System is likely to be held to infringe any intellectual property rights of a third party, Aprimo may at its sole discretion and expense, either: (i) secure the right for Customer to continue use of the infringing System; (ii) replace or modify the infringing System to make it non-infringing, provided such System contains substantially similar functionality; or (iii) terminate access to the infringing System. If Aprimo elects to terminate access to the System, as Customer’s sole and exclusive remedy, Aprimo shall refund to Customer any prepaid, unused license Fees for the infringing System indicated on the related Order Form.
- Limitation on Liability. APRIMO SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT FOR APRIMO’S INDEMNIFICATION OBLIGATION IN SECTION 8, THE AGGREGATE LIABILITY OF APRIMO TO CUSTOMER FOR ANY CLAIM HEREUNDER SHALL NOT EXCEED THE FEES PAID TO APRIMO HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
- Force Majeure. Except for payment obligations, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies or power.
- Governing Law. The rights and obligations of the parties under this Agreement and each Order Form shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement, an Order Form or the performance, breach or termination thereof, shall be finally settled by arbitration in Chicago, Illinois under the rules of arbitration of the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, (i) either party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration process, and (ii) Aprimo shall be entitled to initiate legal action in the appropriate court located in Cook County, Illinois to collect any past due fees due and owing hereunder.
- Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Aprimo shall be entitled to enter into contracts with third parties to carry out Aprimo’s obligations under this Agreement and Aprimo shall remain responsible for all actions taken by each such subcontractor hereunder. This Agreement, together with each Order Form, supersedes all prior written or oral agreements between the parties regarding the subject matter hereof as well as any contradictory or additional language in any purchase order or similar form. In the event of a conflict or inconsistency between the terms and conditions of the Order Form and those of the Agreement, the terms and conditions of the Order Form shall prevail. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the agent or representative of the other party for any purpose. This Agreement may only be amended by written agreement of the parties. The failure of any party to exercise any right provided for under this Agreement shall not be deemed a waiver of such right. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns but shall not be assignable by either party other than in the event of change of control, including but not limited to an entity acquiring substantially all of its assets, equity or business and assuming the obligations hereunder. Notices pursuant this Agreement shall be deemed effective when delivered in person or two business days after such notice is mailed to the address listed above by a reputable courier or upon receipt when sent via e-mail. If any provision of this Agreement is held to be illegal, unenforceable, or invalid for any reason, the remaining provisions will continue in full force and effect. This Agreement and any Order Form may be signed in one or more original or electronic counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same Agreement.
SERVICE LEVEL AGREEMENT
- SERVICE LEVELS
System Availability; Service Levels.Aprimo shall use commercially reasonable efforts to provide availability of the System. If the Customer encounters Server Downtime (excluding any test & development environments) more than one percent (1%) of the time during any month, Customer shall be entitled to a credit equal to the pro rata amount of System Fees applicable to that month relating to such unavailability, up to an aggregate amount of ten (10%) of its applicable monthly System Fees for such month. For purposes of this section, Server Downtime percentage in a calendar month shall mean the percentage derived by dividing (x) the total number of minutes that the System is unavailable due to Server Downtime in such month; by (y) the total number of minutes in the month. If for any reason other than a Force Majeure Event (a) Server Downtime is greater than ten percent (10%) for one calendar month or (b) Server Downtime for the prior three (3) consecutive months is greater than three percent (3%) per month, then Customer shall be entitled to terminate the applicable Order Form for material breach and receive a refund of any prepaid System Fees allocable to the post-termination period.
- CUSTOMER SUPPORT
Response Times. Aprimo measures response time as the interval between Customer’s initial contact (via electronic receipt of case or phone call) to Aprimo and the first contact (via electronic receipt or phone call) with an Aprimo support analyst. Update and response times are tracked through identification of a known issue or proposed solution.
Response/Update Times: Initial Response Times: Priority 1 (via phone), Priority 2 and 3:2 hours, Next Business Day. Status Updates: Priority 1 (via phone): Hourly, Priority 2: Once every 2 days, Priority 3: Once every 5 days
- MAINTENANCE & BACKUP
Maintenance. Aprimo shall advise Customer prior to any scheduled maintenance that requires Aprimo to take down the System. Aprimo shall not be responsible for any damages or costs incurred by Customer or any user during or as a result of the scheduled downtime or downtime as to which Aprimo has provided notice to Customer.
Backup and Recovery Requirements. Aprimo will perform a running archive on the System in conformity with its then current backup procedures and policies.
Exclusions. Aprimo shall have no support obligations with respect to any hardware or software product other than the System.
Capitalized terms which are not defined herein shall have the meanings set forth in the Agreement. Additionally, the following terms shall have the meanings set forth below.
“Server Downtime” shall mean the time during which the System is not available to be accessed or used by the Customer, as monitored by Aprimo, but shall not include the time the System is unavailable due to scheduled maintenance or unavailability due to improper use of the System by Customer.
“Force Majeure Event” shall mean an event caused by circumstances beyond Aprimo’s reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies or power.
“Priority 1” shall mean a problem that prohibits use of the product or renders the product inoperable. A Priority 1 case is a catastrophic issue which severely impacts the Customer’s production systems, as they are inaccessible or there is a system wide performance degradation making the System unusable.
“Priority 2” shall mean a problem that causes a significant impact to the business; however, operations can continue in a degraded fashion. A Priority 2 case is a production issue in which the Customer can access the System, but in a severely reduced capacity. This type of issue is causing significant impact to portions of the Customer’s normal business operations and productivity.
“Priority 3” shall mean a non-critical problem that is impacting the Customer. A Priority 3 case is an issue that is impacting the Customer, but is neither critical nor preventing ongoing use of the System.