These Terms and Conditions (this “Agreement”) are referenced within, and incorporated by reference into, certain Order Forms (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.
(a) Upon execution of an Order Form, Customer shall have a subscription to the modules of Aprimo’s platform (the “System”) specified in such Order Form. The System includes (i) online and/or telephone customer support to Customer during Aprimo’s normal business hours to answer questions and address issues which may arise in connection with the System; and (ii) hosting of the System, in accordance with Aprimo’s customary practice and the Service Level Agreement below. In addition, Customer may purchase from Aprimo, and Aprimo agrees to provide to Customer, services associated with the System (“Professional Services”) 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, each of which will, to the extent Aprimo makes such versions, features or functionality available to other similarly-situated Aprimo subscribers, be included within 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.
(b) Aprimo, in connection with each Order Form, will make the System available to the applicable number of Customer’s users specified on each Order Form and grants the users a non-exclusive, revocable, non-transferable right to access and use the modules of the System for internal use during the subscription period set forth in the Order Form.
(c) If, in the course of rendering Professional Services, Aprimo creates and delivers to Customer any work product or deliverables other than the System, 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.
In consideration of Aprimo providing access to the System and providing Professional Services, Customer shall pay to Aprimo the fees specified in each Order Form (“Fees”) annually in advance, unless otherwise agreed upon by the parties in an Order Form. All payments shall be due thirty (30) days from the date of the invoice. Any travel and other expenses incurred by Aprimo in completing the Professional Services will be invoiced separately, on a monthly basis. 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 or withhold fees due under this Agreement for any reason, 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 taxes and Customer agrees to pay any applicable taxes charged arising from this Agreement in a timely manner. 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 contemplated by 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 within five (5) business days after the Effective Date. 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. If Customer is legally required to withhold tax from its payment of Fees to Aprimo, Customer agrees to gross up all Fees that are subject to such withholding tax, such that the net payment received by Aprimo is the full originally stated amount of such Fees.
This Agreement shall continue in full force beginning on the Effective Date and continues until the expiration or termination of the last Order Form entered into under this Agreement. Notwithstanding the foregoing, either party shall be entitled to terminate this Agreement immediately 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, but in no event shall such cure period extend beyond 90 days). Sections 3 through 11 of this Agreement shall survive any termination of this Agreement.
4. Intellectual Property.
(a) Nothing in this Agreement affects ownership rights of intellectual property owned by any party to this Agreement as of the Effective Date. 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 Aprimo intellectual property rights are granted to Customer, and all such licenses and rights are expressly reserved.
(b) 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 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.
(c) 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; or (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.
(d) Customer shall be solely responsible for: (i) inputting all data into the System unless otherwise specified in an Order Form; (ii) maintaining confidentiality as may be required in connection with any data entered into the System; and (iii) ensuring that each of Customer’s permitted users within its business complies with the terms set forth herein. 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, etc. Aprimo may, at its discretion and as set forth in one or more Order Forms, limit the scope of Customer’s access to the System including, by way of example, limitations on the amount of data which may be input and/or stored within the System.
(e) For Aprimo’s Distributed Marketing module, access to the System and its various components, whether by authorized users within Customer’s business or by other entities or businesses that are permitted to access the System as “affiliates” or otherwise in connection with a business relationship with Customer, will be subject to Aprimo’s standard End User Agreement which (i) will be required to be accepted electronically by each user as a condition to first accessing and using the System, and (ii) sets forth various restrictions and/or rules around the various System components, all of which shall be binding on Customer and each such user.
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, 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:
(a) becomes publicly available without breach of this Agreement;
(b) is known by the receiving party prior to disclosure without a duty of confidentiality;
(c) is rightfully received from a third party without an obligation of confidence;
(d) is independently developed without resort to the information provided by the disclosing party; or
(e) 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.
6. Representations and Warranties.
(a) Each party represents and warrants that: (i) it has the authority to enter into this Agreement and perform the services required of it hereunder; (ii) it will perform all services hereunder in a professional manner consistent with industry practices; and (iii) each party will comply with all applicable laws and regulations in carrying out its responsibilities hereunder.
(b) Aprimo represents and warrants that the System will operate substantially in accordance with the materials made available to Customer through the System to assist users of the System (“Documentation”).
(c) EXCEPT AS EXPLICITLY SET FORTH HEREIN, NEITHER PARTY, NOR EITHER PARTY’S 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).
7. Certain Responsibilities.
Customer is responsible for: (i) maintaining all of its user devices and providing its permitted users with equipment and internet services sufficient to access and utilize the System; (ii) configuring necessary user accounts in connection with use of the System and protecting all passwords and access codes to the System; (iii) ensuring that for each e-mail address provided to Aprimo hereunder, the applicable e-mail account holder has “opted-in” to receive the applicable e-mails and has not notified Customer of that such account holder does not wish to receive any such e-mails, as applicable; and (iv) ensuring that all electronic mail sent via the System is in full compliance with the Federal CAN-SPAM Act of 2003 and all other applicable laws, rules and/or regulations. In addition, it shall be the sole responsibility of Customer to administer, and keep current, all System user accounts, which includes monitoring at all times the employees that have access to the System as users and ensuring that former employees or employees that are no longer required to have access to the System do not retain active user accounts.
(a) 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 notice within five (5) business days of receipt of any such claim and sole control of the defense of such claim, including negotiations, appeals, and settlements. 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; (iii) the combination, operation or use by Customer of any System, equipment or devices not supplied by Aprimo to the extent the claim would have been avoided if the System were not used in such combination.
(b) 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 the access to the infringing System granted hereunder. If Aprimo elects to terminate access to the System under the foregoing provision, as Customer’s sole and exclusive remedy, Aprimo shall refund to Customer any prepaid, unused Fees for the infringing System indicated on the related Order Form.
9. Limitation on Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY 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 (I) APRIMO’S INDEMNIFICATION OBLIGATION IN SECTION 8, AND (II) CUSTOMER’S BREACH OF SECTION 4(b), THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID TO APRIMO HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
10. Force Majeure.
Excluding payment obligations hereunder and/or within an Order Form, 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, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
11. 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.
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, it being understood that Aprimo shall be responsible for 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 and supersedes any contradictory or additional language in any purchase order. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement may only be amended by written agreement of the parties. The waiver or failure of any party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any future right hereunder. 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. Any notice pursuant this Agreement shall be deemed effective when delivered in person or one day after sending such notice to the address listed herein or in an Order Form by reputable overnight courier with confirmation of next-day receipt. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
SERVICE LEVEL AGREEMENT
1. 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, if subscribed) 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 monthly System Fees for such month. For purposes of this section, percentage system unavailability 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 (excluding from both (x) and (y) the reasonable time the system is not available due to: (a) a breach of any Customer responsibilities; (b) failure or malfunction of any equipment or services selected by Customer not provided by Aprimo; or (c) a Force Majeure Event). 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.
2. 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 Customer Services support analyst. Response times for Priority 2 and Priority 3 are measured during Principal Hours of Operations (“PHO”) only.
|Initial Response Times||Priority 1||Priority 2 and 3|
|2 hours||Next Business Day|
|Status Updates||Priority 1||Priority 2||Priority 3|
|Hourly||Once every 2 days||Once every 5 days|
3. MAINTENANCE & BACKUP
Maintenance; Updates. 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 Aprimo’s 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 (“Nonqualified Products”). If Aprimo provides technical support for a problem caused by a Nonqualified Product, or if Aprimo’s service efforts are increased as a result of a Nonqualified Product, Aprimo may charge time and materials for such extra services at its then current rates.
Limitations. Customer acknowledges that inevitably some non-material errors may exist in the System and the presence of such errors shall not be a breach of this Service Level Agreement. If Customer adds additional Software products or users, is dissatisfied with the speed or performance of the System, or if the database or filestore capacity should prove insufficient for Customer’s actual requirements, additional payment by Customer may be required. In each case, Customer shall either: (a) limit its use of the System to conform to the capacity thereof or (b) elect to receive an upgrade to the System subject to additional payment to Aprimo at Aprimo’s then current rates. Customer acknowledges that, if applicable, the performance of the System in transmitting outbound e-mails may be adversely affected by the accuracy of Customer’s e-mail addresses.
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 any interruption in the availability of the System, but only if such interruption is due to a disruption in the connection between the server on which the System is hosted and the internet and shall not include time the server is unavailable due to scheduled maintenance, unavailability necessitated through the improper use of the System by Customer, application errors of the operating or database systems or due to services requested by Customer.
“Principal Hours of Operation” or “PHO” shall mean 8:00 a.m. to 8:00 p.m. Eastern Standard Time Monday through Friday, Aprimo holidays excluded.
“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 in the Aprimo System, 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 the customer’s System is functioning but in a severely reduced capacity due to defect or performance. The issue is causing significant impact to portions of the customer’s normal business operations and productivity. Either a workaround is not available or the one that is available is not a reasonable resolution.
“Priority 3” shall mean a problem that negligibly impacts the ability to do business. A Priority 3 case is an issue in any licensed Aprimo application system where the customer is experiencing functional or usability restrictions that are either not critical to the business or possess a reasonable workaround, the customer has an issue with documentation or a question associated with product usage or any other inquiry.