APIANT TERMS OF SERVICE

(Last Updated December 10, 2016)

Welcome to APIANT. APIANT is our proprietary cloud integration platform (the “Platform”) that enables individuals and businesses to do more and work less by connecting their applications and automating their workload. APIANT, Inc. (“APIANT”) offers customers—directly, and through the website and associated domains of https://www.apiant.com (the “Site”)—the products and services related to the Platform listed at https://apiant.com (as such list may be updated, modified or otherwise changed from time to time, the “ Subscription Services”).

These APIANT Terms of Service (these “APIANT Terms”), together with any applicable Service-Specific Terms (collectively, the “Agreement”), explain your obligations to APIANT, on behalf of you or your organization (hereinafter, the “Customer”) and APIANT’s obligations to Customer with respect to APIANT’s provision of, and Customer’s use of, the Platform and the Services. The Agreement is a legally binding agreement between Customer and APIANT; please read it carefully and save a copy of it for your records.

By clicking the “Create Account” button, Customer agrees effective as of such date (the “Effective Date”), to be bound by the Agreement. CUSTOMER’S ACCESS TO, AND USE OF, THE PLATFORM AND APIANT’s OBLIGATIONS WITH RESPECT THERETO ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THE AGREEMENT.

1. About the Platform

The Platform automates workflow between certain stand-alone third party applications and services—whether web-based or offline (“Third Party Applications”)—by causing the execution of commands (“Tasks”) within such Third Party Applications triggered by the modification of User Data (any combination of such Tasks, an “Automation”). In addition to pre-programed Tasks for each Third Party Application, the Platform contains an API-integration assembly editor tool (the “Assembly Editor”) which can be used to develop new and unique Tasks.

2. APIANT’s Provision of the Trial Services is Governed by These APIANT Terms

Subject to the terms and conditions of these APIANT Terms, during the Trial Period, APIANT agrees to use commercially reasonable efforts to provide Customer limited access and use of the Platform which APIANT may generally offer to Account holders from time to time (the “Trial Services,” and together with the Subscription Services, the “Services”). Limitations on access and use of the Platform provided in connection with the Trial Services may be expanded or otherwise modified at any time without notice and may include restrictions on access and use of Third Party Applications and/or the Assembly Editor.

The “Trial Period” shall begin on the Effective Date and, unless earlier terminated pursuant to these APIANT Terms, continue for a period equal to the free-trial period published on the Site as of the Effective Date.

3. Additional Terms and Conditions Apply to Customer’s Use of, and APIANT’s Provision of, the Subscription Services

APIANT’s provision of any Subscription Service is subject to supplemental terms and conditions which APIANT will present Customer with for review and acceptance at the time Customer subscribes to such Service, and any such supplemental terms (each, “Service-Specific Terms”) shall become part of the Agreement. If the terms hereof conflict with any Service-Specific Terms, the Service-Specific Terms will govern with respect to the matters contemplated thereby.

4. Customer Must Create an Account to Access the Platform

To access the Platform, Customer must provide login credentials associated with Customer’s APIANT account (“Account”). Creation of a valid Account requires providing a valid email address, which Customer has the right to access and use, and that the individual creating such Account is (i) at least 18 years of age, (ii) not named on any U.S. government list of persons or entities prohibited from receiving exports, and (iii) not a resident of, or otherwise domiciled in, any countries set forth on the State Sponsored Terrorism List promulgated by the United States Government (which currently includes Iran, Sudan and Syria).

Customer represents and warrants (i) all information Customer provides APIANT about Customer in creating an Account (“Account Information”) is complete, true, current and accurate, (ii) if a change occurs such that Account Information is no longer complete, true, current or accurate, Customer shall, promptly update the Account to reflect such change, and (iii) the individual creating an Account has, and Customer has, the requisite power and authority to enter into the Agreement.

5. Customer Must Subscribe to a Subscription Service to Access the Platform

APIANT may offer one or more subscription pricing models for the Subscription Services (“Subscription Plans”), differentiated by price (“Fee”) and one or more variables which may, but need not, include subscription term length, Automation and Task limits, Third Party Application availability and development services. Except during the Trial Period, access to the Platform requires subscription to a Subscription Plan (payment for such purchase will be due and payable in accordance with the applicable Service-Specific Terms).

6. Fee Payment and Fee Increases

All Fees are prepaid and non-refundable (except to the extent set forth in the Agreement). Customer hereby authorizes APIANT to charge the credit card—or other electronic payment method—associated with Customer’s Account for all Fees on an as-incurred basis. Notwithstanding the foregoing, APIANT may invoice Customer for any Fees, and Customer shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check or any other payment method APIANT may deem acceptable in its sole discretion. 

All Fees are due and payable in U.S. dollars and are exclusive of applicable sales, excise, use or similar taxes.  Customer shall pay all such taxes directly or to APIANT, as required by applicable law.

If payment is not made on the respective due date, APIANT may, at its discretion and in addition to other remedies available, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, and compounded monthly, and (ii) suspend Customer’s access to the Platform.

Additionally, APIANT may increase the Fees associated with any Service-Specific Terms upon the commencement of any renewal term of such Service-Specific Terms by no more than five percent (5%) or the actual percentage change in the Consumer Price Index for the United States during the immediately prior term. Prior to making any such Fee increase, APIANT agrees to use reasonable efforts to provide Customer with notice thereof.

7. Customer’s Use of the Platform is Subject to Compliance with the Agreement

Use of the Platform and the Services are each conditioned upon Customer’s full compliance with the Agreement and all applicable laws, rules and regulations. APIANT may, without limiting any other available remedy, terminate the Agreement, and suspend Customer’s Account and access to the Platform at any time and without notice if APIANT believes, or receive a claim that, Customer is in violation of any Section of the Agreement, including, without limitation, the restrictions on Platform use and User Data content set forth in Section [10].

8. Authorized Users Must Abide by Applicable Terms of Use

Customer may allow such number of Customer’s employees and/or independent contractors as is indicated in the applicable Subscription Terms to use the Platform (“Authorized Users”); provided, however, each Authorized User must agree to abide by the terms of APIANT’s end-user terms of use which APIANT may adopt from time to time. Customer must immediately notify APIANT of any violation of the terms of APIANT’s end-user terms by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of APIANT’s end-user terms by any Authorized User.

9. Customer is Responsible for Certain Information and Obligations Relating to the Services

Customer is solely responsible for (i) all uses of any Account that Customer has access to, whether or not the particular use or user is authorized, and regardless of Customer’s knowledge of such use, (ii) securing, and maintaining the confidentiality of, any Customer Account, passwords and files, (iii) obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including hardware, software, operating systems, networking and the like, (iv) maintaining applicable accounts with providers of Third Party Applications used by Customer in connection with any Service, and (v) backing-up User Data during the term of the Agreement, and Customer hereby acknowledges it will not have access to User Data following the expiration or termination of the Agreement.

10. Customer is Prohibited from Certain Actions and Uses of User Data

Customer may not, nor permit or encourage any third party to:

(i) directly, or indirectly, (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”), (b) modify, translate, or create derivative works based on the Platform or any Software, (c) use the Platform or any Software for timesharing or service bureau purposes or other computer service to a third party, (d) modify, remove or obstruct any proprietary notices or labels, or (e) use any Software or the Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with any Software or the Platform;

(ii) Process User Data through the Platform that (a) is defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate, (b) contains or causes to be placed on APIANT’s or other third party’s systems any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information, (c) violates any applicable local, state, federal or foreign law, rule or regulation, including privacy laws and privacy standards, (d) violates any rule or policy of any Third Party Application; (e) infringes or violates any third party rights, or (f) contains any health or medical information of any individual or any information of any person under the age of 13; or

(iii) to the extent Customer or an Authorized User accesses or uses the Assembly Editor pursuant to the Subscription Plan, use the Assembly Editor to develop, run or create any Task that (a) would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act, (b) would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or by the Platform or the Automator Services, or by other software, services or technology, or enable others to do so, (c) contains any malware, malicious or harmful code, program, or other internal component (e.g. computer viruses, Trojan horses, “backdoors”), or (d) that could damage, destroy, or adversely affect ours or any other software, firmware, hardware, data, systems, services, or networks.

11. Customer Owns Certain Intellectual Property that APIANT May Use

As between Customer and APIANT, Customer owns and retains all right, title and interest in and to any data, information, including Account Information, and other content uploaded, stored, transmitted to or otherwise processed by or on behalf of Customer through the Platform or the Site, or which the Platform may access, including, without limitation, data transferred by or among, or accessed from, Third Party Applications, in connection with Customer’s use of any Service (“UserData”). Customer hereby grants to APIANT a non-exclusive, transferable, sub licensable, worldwide and royalty-free license to use and otherwise exploit User Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the Platform, the Software or the Services, both during and after the term of the Agreement.

Upon purchase a Subscription Plan, Customer hereby agrees that APIANT may identify Customer as a user of the applicable Subscription Service and use Customer’s name, logo and trademark in APIANT’s promotional materials during the term of the applicable Subscription Service. Customer may request APIANT stop doing so by emailing support@APIANT.com at any time.

12. APIANT Own All Rights in the Platform, Software and Certain Data

Customer agrees and acknowledges that, as between Customer and APIANT, APIANT shall own and retain all right, title and interest in and to (i) the Platform, the Services and Software and all improvements, enhancements and modifications thereto, (ii) User Data, and other material, that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity, (iii) comments, suggestions, or other feedback regarding the Services or the Platform submitted by Customer or an Authorized User, and (iv) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “APIANT IP”). To the extent Customer has or acquires any right, title or interest in any APIANT IP, Customer hereby assigns all such right, title and interest in such APIANT IP to APIANT.

13. The Platform and Services Utilize Third Party Materials and Applications

The Platform may display, include, or make available content, data, information, or materials from third parties (“Third-Party Materials”), or provide links to third-party websites. Customer acknowledges and agrees that APIANT is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. Without limiting the generality of Section [17] of these APIANT Terms, APIANT does not warrant or endorse, and will not have any liability or responsibility to Customer or any other person for, any Third-Party Materials.

Upon Customer’s installation, or enabling, of a Third Party Application for use and interoperation with the Platform, Customer agrees that APIANT may allow the applicable third party provider to access User Data as required for the interoperation of such Third Party Application with the Platform, and any exchange of data or other interaction between Customer and such third party provider is solely between Customer and such third party provider. The continuing availability of a Third Party Application after the expiration of the then-current term of Customer’s subscription to such Third-Party Application is subject to the continued effectiveness and terms of the contract between APIANT and such third party provider.

14. APIANT Makes No Representations That the Platform Will Always Be Available or Properly Functioning

Without limiting the generality of Section [17] of these APIANT Terms, APIANT makes no representation about the Platform’s uptime, or the Platform’s availability or permissibility in any particular location. Scheduled system maintenance may take place from time to time, and emergency maintenance may be required at other times, and, in each case, during such times, the Platform may be unavailable. Use of the Platform is void where use of the Platform is prohibited. Customer’s use of the Platform is at Customer’s own initiative and Customer is responsible for compliance with any applicable laws in connection with such use.

15. The Platform Can Cause Irrevocable Damage to Customer’s Systems and User Data

The Platform’s performance of Tasks and/or Automations may irrevocably modify and/or delete User Data. CUSTOMER ACKNOWLEDGES AND AGREES APIANT IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER DATA AND THAT CUSTOMER’S USE OF THE PLATFORM IS AT CUSTOMER’S OWN RISK.

16. Information Disclosed Between Customer and APIANT is Confidential

Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the Agreement that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, for example, User Data. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

The Receiving Party will (i) use an appropriate degree of care (but in no event less than reasonable care) to protect Confidential Information, (ii) not to disclose or use any Confidential Information for any purpose outside the scope of the Agreement, and (iii) limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who are bound by confidentiality restrictions no less stringent than those herein. Notwithstanding the foregoing, APIANT may disclose Customer’s Confidential Information to the extent it believes is reasonably necessary to comply with any court order or law.

Within thirty (30) days following the expiration or earlier termination of the Agreement, to the extent APIANT possesses or controls any Customer Confidential Information that comprises User Data, APIANT shall destroy or otherwise purge from APIANT’s systems such Confidential Information.

17. APIANT DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN

EXCEPT AS EXPRESSLY PROVIDED HEREIN, (i) APIANT DOES NOT WARRANT THAT ACCESS TO THE PLATFORM OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PLATFORM OR PROVISION OF ANY SERVICE will produce any particular result or any solution to CUSTOMER’s particular needs, and (ii) THE PLATFORM AND SOFTWARE ARE PROVIDED “AS IS,” AND APIANT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

18. Customer Will Defend APIANT Against Certain Claims

Customer will defend APIANT and hold APIANT harmless against any claim, suit, demand, or action made or brought against APIANT (i) alleging that Customer’s use of the Platform in violation of the Agreement infringes, misappropriates, dilutes or otherwise violates any individual’s or entity’s intellectual property rights, (ii) by any Third-Party Application provider alleging APIANT’s provision of any Service under the Agreement constitutes an unauthorized use of such Third-Party Application or otherwise violates the rights of such provider, or (iii) relating to or arising from APIANT’s use of User Data as permitted by the Agreement. In addition, Customer will indemnify APIANT from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against APIANT in connection with or in settlement of any such claim, suit, demand, or action.

19. APIANT IS NOT LIABLE FOR CERTAIN DAMAGES AND LIABILITIES AND HAS MAXIMUM LIABILITY HEREUNDER

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT WILL (I) APIANT’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) APIANT HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT APIANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

20. TERM AND TERMINATION

Unless earlier terminated as provided herein, the Agreement is effective beginning on the Effective Date and will continue for the term of any purchased Subscription Plan(s) in accordance with the applicable Service-Specific Terms.

In addition to any other remedies APIANT may have, APIANT may, terminate the Agreement immediately upon written notice if Customer fails to pay any Fee or other amount when due or otherwise materially breaches the Agreement.

Upon termination of the Agreement, Customer must immediately cease all use of and all access to the Platform. Sections [11, 12, 16–27] of these APIANT Terms shall survive any termination or expiration of the Agreement. All other rights and obligations shall be of no further force or effect.

21. The Agreement is Governed by the Laws of the Commonwealth of Pennsylvania

This Agreement is governed in all respects by the laws of the Commonwealth of Pennsylvania, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.

22. Disputes Relating to the Agreement Will Be Resolved Through Binding Arbitration

Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in Philadelphia, Pennsylvania by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” or “platform as a service” arrangements and intellectual property. The arbitrator will provide detailed written explanations to the parties to support his/her award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

23. APIANT Is Not Responsible for Things APIANT Cannot Control

APIANT is not responsible nor liable for any delays or failures in performance from any cause beyond APIANT’s control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions or acts of hackers, internet service providers or any other third party, or acts or omissions of Customer.

Without limiting the generality of the foregoing or Section [17], the Platform and the Services rely on third party technology and services such as application programming interfaces for Third Party Applications and web hosting services. Any change to the products or services offered by any of these third party providers may materially and adversely effect, or entirely disable, Customer’s use of or access to the Platform. Likewise, APIANT cannot guarantee that any User Data hosted on a third party server will remain secure. Customer hereby acknowledges that APIANT cannot offer any additional or modified security procedures other than those put in place by APIANT’s hosting service provider(s); however, APIANT shall provide Customer with information regarding the hosting service provider’s security practices upon request made to support@APIANT.com.

24. Certain Terms Relating to Government Users

The Software and the Platform are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. To the extent the Software or Platform are deemed licensed to Customer hereunder, consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

25. Certain Terms and Restrictions Relating to Export Laws

Customer acknowledges the Software and the Platform are subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and, without limiting any other obligation of Customer hereunder, Customer will comply with the Export Laws. Customer will not ship, transfer, export, or re-export the Software or the Platform, directly or indirectly, to: (i) any countries that are subject to US export restrictions; (ii) any end user whom Customer knows or has reason to know will utilize them in the design, development, or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”); or (iii) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. Customer represents and warrants Customer will not use the Software for a Prohibited Use.

26. Assigning the Agreement

Neither party may assign any of its rights or delegate any of its obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety, without consent of the other party, to its affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and in the case of Customer, not involving a direct competitor of APIANT. Any assignment or delegation in violation of this Section shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

27. General Terms of the Agreement

If any provision of the Agreement is held to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.

The Agreement—including, without limitation, all applicable Service Specific Terms—is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement.

Any modification to the Agreement by APIANT shall be effective after APIANT first notifies Customer of the modification (via an update delivered through the Platform or the Site or via email or other notification) and Customer signifies its acceptance via acknowledgement or continued use of any applicable Services for a reasonable time.

The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to these APIANT Terms as a whole and not to any particular Section or paragraph of these APIANT Terms; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” are references to a section of this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.

All notices required under or otherwise sent relating to the Agreement will be in writing and, if to APIANT shall be delivered to legal@APIANT.com, and if to Customer shall be delivered to the email address associated with Customer’s Account; provided, however, any notice from Customer to APIANT required by, arising out of, or related to Sections 16 or 20 shall be delivered via certified mail, return receipt requested, to: APIANT, Inc. PO BOX 543, Doylestown, PA 18901. Notice will be deemed to have been duly given when received when receipt is electronically confirmed.

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