Welcometo APIANT. APIANT is our proprietary cloud integration platform (the “Platform”)that enables individuals and businesses to do more and work less by connectingtheir applications and automating their workload. APIANT, Inc. (“APIANT”)offers customers—directly, and through the website and associated domains ofhttps://www.apiant.com (the “Site”)—the products and services related tothe Platform listed at https://apiant.com (as such list may be updated,modified or otherwise changed from time to time, the “ Subscription Services”).
TheseAPIANT Terms of Service (these “APIANT Terms”), together with anyapplicable 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 withrespect to APIANT’s provision of, and Customer’s use of, the Platform and theServices. The Agreement is a legally binding agreement between Customer andAPIANT; please read it carefully and save a copy of it for your records.
Byclicking the “Create Account” button, Customer agrees effective as ofsuch date (the “Effective Date”), to be bound by the Agreement. CUSTOMER’SACCESS TO, AND USE OF, THE PLATFORM AND APIANT’s OBLIGATIONS WITH RESPECTTHERETO ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THE AGREEMENT.
1. About the Platform
ThePlatform automates workflow between certain stand-alone third partyapplications and services—whether web-based or offline (“Third PartyApplications”)—by causing the execution of commands (“Tasks”) withinsuch Third Party Applications triggered by the modification of User Data (anycombination of such Tasks, an “Automation”). In addition topre-programed Tasks for each Third Party Application, the Platform contains anAPI-integration assembly editor tool (the “Assembly Editor”) which canbe used to develop new and unique Tasks.
2. APIANT’s Provision of the TrialServices is Governed by These APIANT Terms
Subjectto the terms and conditions of these APIANT Terms, during the Trial Period,APIANT agrees to use commercially reasonable efforts to provide Customerlimited access and use of the Platform which APIANT may generally offer toAccount holders from time to time (the “Trial Services,” and togetherwith the Subscription Services, the “Services”). Limitations on accessand use of the Platform provided in connection with the Trial Services may beexpanded or otherwise modified at any time without notice and may includerestrictions on access and use of Third Party Applications and/or the AssemblyEditor.
The“Trial Period” shall begin on the Effective Date and, unless earlierterminated pursuant to these APIANT Terms, continue for a period equal to thefree-trial period published on the Site as of the Effective Date.
3. Additional Terms and ConditionsApply to Customer’s Use of, and APIANT’s Provision of, the SubscriptionServices
APIANT’sprovision of any Subscription Service is subject to supplemental terms andconditions which APIANT will present Customer with for review and acceptance atthe time Customer subscribes to such Service, and any such supplemental terms(each, “Service-Specific Terms”) shall become part of the Agreement. Ifthe terms hereof conflict with any Service-Specific Terms, the Service-SpecificTerms will govern with respect to the matters contemplated thereby.
4. Customer Must Create an Accountto Access the Platform
Toaccess the Platform, Customer must provide login credentials associated withCustomer’s APIANT account (“Account”). Creation of a valid Accountrequires providing a valid email address, which Customer has the right toaccess and use, and that the individual creating such Account is (i) at least18 years of age, (ii) not named on any U.S. government list of persons orentities prohibited from receiving exports, and (iii) not a resident of, orotherwise domiciled in, any countries set forth on the State SponsoredTerrorism List promulgated by the United States Government (which currentlyincludes Iran, Sudan and Syria).
Customerrepresents and warrants (i) all information Customer provides APIANT aboutCustomer in creating an Account (“Account Information”) is complete,true, current and accurate, (ii) if a change occurs such that AccountInformation is no longer complete, true, current or accurate, Customer shall,promptly update the Account to reflect such change, and (iii) the individualcreating an Account has, and Customer has, the requisite power and authority toenter into the Agreement.
5. Customer Must Subscribe to aSubscription Service to Access the Platform
APIANTmay offer one or more subscription pricing models for the Subscription Services(“Subscription Plans”), differentiated by price (“Fee”) and oneor more variables which may, but need not, include subscription term length,Automation and Task limits, Third Party Application availability and developmentservices. Except during the Trial Period, access to the Platform requiressubscription to a Subscription Plan (payment for such purchase will be due andpayable in accordance with the applicable Service-Specific Terms).
6. Fee Payment and Fee Increases
AllFees are prepaid and non-refundable (except to the extent set forth in theAgreement). Customer hereby authorizes APIANT to charge the credit card—orother electronic payment method—associated with Customer’s Account for all Feeson an as-incurred basis. Notwithstanding the foregoing, APIANT may invoiceCustomer for any Fees, and Customer shall pay such invoice within fifteen (15)days of receipt thereof via money transfer, ACH, check or any other paymentmethod APIANT may deem acceptable in its sole discretion.
AllFees 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 directlyor to APIANT, as required by applicable law.
Ifpayment is not made on the respective due date, APIANT may, at its discretionand in addition to other remedies available, (i) charge a late fee on theunpaid balance at the lesser of one and one-half percent (1.5%) per month orthe 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 uponthe commencement of any renewal term of such Service-Specific Terms by no morethan five percent (5%) or the actual percentage change in the Consumer PriceIndex for the United States during the immediately prior term. Prior to makingany such Fee increase, APIANT agrees to use reasonable efforts to provideCustomer with notice thereof.
7. Customer’s Use of the Platform isSubject to Compliance with the Agreement
Useof the Platform and the Services are each conditioned upon Customer’s fullcompliance with the Agreement and all applicable laws, rules and regulations.APIANT may, without limiting any other available remedy, terminate theAgreement, and suspend Customer’s Account and access to the Platform at anytime and without notice if APIANT believes, or receive a claim that, Customeris in violation of any Section of the Agreement, including, without limitation,the restrictions on Platform use and User Data content set forth in Section.
9. Customer is Responsible forCertain Information and Obligations Relating to the Services
Customeris solely responsible for (i) all uses of any Account that Customer has accessto, whether or not the particular use or user is authorized, and regardless ofCustomer’s knowledge of such use, (ii) securing, and maintaining theconfidentiality of, any Customer Account, passwords and files, (iii) obtainingand maintaining—both the functionality and security of—any equipment andancillary 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 usedby Customer in connection with any Service, and (v) backing-up User Data duringthe term of the Agreement, and Customer hereby acknowledges it will not haveaccess to User Data following the expiration or termination of the Agreement.
10. Customer is Prohibited fromCertain Actions and Uses of User Data
Customermay not, nor permit or encourage any third party to:
(i)directly, or indirectly, (a) reverse engineer, decompile, disassemble orotherwise attempt to discover or derive the source code, object code orunderlying structure, ideas, know-how or algorithms relevant to the Platform orany software, documentation or data related to the Platform (“Software”),(b) modify, translate, or create derivative works based on the Platform or anySoftware, (c) use the Platform or any Software for timesharing or servicebureau purposes or other computer service to a third party, (d) modify, removeor obstruct any proprietary notices or labels, or (e) use any Software or thePlatform in any manner to assist or take part in the development, marketing orsale of a product potentially competitive with any Software or the Platform;
(ii)Process User Data through the Platform that (a) is defamatory, harmful tominors, obscene, indecent, pornographic, libelous, threatening, harassing,false, misleading or inaccurate, (b) contains or causes to be placed onAPIANT’s or other third party’s systems any Trojan horses, worms, viruses orprogramming routines intended to interfere, damage, corrupt, surreptitiouslyintercept or expropriate any system, data or personal information,(c) violates any applicable local, state, federal or foreign law, rule orregulation, including privacy laws and privacy standards, (d) violates any ruleor policy of any Third Party Application; (e) infringes or violates any thirdparty rights, or (f) contains any health or medical information of anyindividual 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 AssemblyEditor 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 acrime, or other tortious, unlawful, or illegal act, (b) would disable, hack orotherwise interfere with any security, digital signing, digital rightsmanagement, content protection, verification or authentication mechanismsimplemented in or by the Platform or the Automator Services, or by othersoftware, services or technology, or enable others to do so, (c) contains anymalware, 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 CertainIntellectual Property that APIANT May Use
Asbetween Customer and APIANT, Customer owns and retains all right, title andinterest in and to any data, information, including Account Information, andother content uploaded, stored, transmitted to or otherwise processed by or onbehalf of Customer through the Platform or the Site, or which the Platform mayaccess, including, without limitation, data transferred by or among, oraccessed from, Third Party Applications, in connection with Customer’s use ofany Service (“UserData”). Customer hereby grants to APIANT anon-exclusive, transferable, sub licensable, worldwide and royalty-free licenseto use and otherwise exploit User Data to provide the Services to Customerhereunder and as necessary or useful to monitor and improve the Platform, theSoftware or the Services, both during and after the term of the Agreement.
Uponpurchase a Subscription Plan, Customer hereby agrees that APIANT may identifyCustomer as a user of the applicable Subscription Service and use Customer’sname, logo and trademark in APIANT’s promotional materials during the term ofthe applicable Subscription Service. Customer may request APIANT stop doing soby emailing support@APIANT.com at any time.
12. APIANT Own All Rights in thePlatform, Software and Certain Data
Customeragrees and acknowledges that, as between Customer and APIANT, APIANT shall ownand retain all right, title and interest in and to (i) the Platform, the Servicesand Software and all improvements, enhancements and modifications thereto, (ii)User Data, and other material, that is anonymized, de-identified, or otherwiserendered not reasonably associated or linked to Customer or any otheridentifiable individual person or entity, (iii) comments, suggestions, or otherfeedback regarding the Services or the Platform submitted by Customer or anAuthorized User, and (iv) all intellectual property and proprietary rights inand related to any of the foregoing (collectively, “APIANT IP”). To theextent 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 toAPIANT.
13. The Platform and ServicesUtilize Third Party Materials and Applications
ThePlatform may display, include, or make available content, data, information, ormaterials from third parties (“Third-Party Materials”), or provide linksto third-party websites. Customer acknowledges and agrees that APIANT is not responsiblefor examining or evaluating the content, accuracy, completeness, timeliness,validity, copyright compliance, legality, decency, quality, or any other aspectof such Third-Party Materials or websites. Without limiting the generality ofSection  of these APIANT Terms, APIANT does not warrant or endorse, andwill not have any liability or responsibility to Customer or any other personfor, any Third-Party Materials.
UponCustomer’s installation, or enabling, of a Third Party Application for use andinteroperation with the Platform, Customer agrees that APIANT may allow theapplicable third party provider to access User Data as required for theinteroperation of such Third Party Application with the Platform, and anyexchange of data or other interaction between Customer and such third partyprovider is solely between Customer and such third party provider. Thecontinuing availability of a Third Party Application after the expiration ofthe then-current term of Customer’s subscription to such Third-PartyApplication is subject to the continued effectiveness and terms of the contractbetween APIANT and such third party provider.
14. APIANT Makes No RepresentationsThat the Platform Will Always Be Available or Properly Functioning
Withoutlimiting the generality of Section  of these APIANT Terms, APIANT makes norepresentation about the Platform’s uptime, or the Platform’s availability orpermissibility in any particular location. Scheduled system maintenance maytake place from time to time, and emergency maintenance may be required atother times, and, in each case, during such times, the Platform may beunavailable. Use of the Platform is void where use of the Platform isprohibited. Customer’s use of the Platform is at Customer’s own initiative andCustomer is responsible for compliance with any applicable laws in connectionwith such use.
15. The Platform Can CauseIrrevocable Damage to Customer’s Systems and User Data
ThePlatform’s performance of Tasks and/or Automations may irrevocably modifyand/or delete User Data. CUSTOMER ACKNOWLEDGES AND AGREES APIANT IS NOTRESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER DATA AND THAT CUSTOMER’SUSE OF THE PLATFORM IS AT CUSTOMER’S OWN RISK.
16. Information Disclosed BetweenCustomer and APIANT is Confidential
“ConfidentialInformation” means all confidential information disclosed by a party (“DisclosingParty”) to the other party (“Receiving Party”) in connection withthe Agreement that reasonably should be understood to be confidential given thenature of the information and the circumstances of disclosure, including, forexample, User Data. However, Confidential Information does not include anyinformation that (i) is or becomes generally known to the public without breachof any obligation owed to the Disclosing Party, (ii) was known to the ReceivingParty prior to its disclosure by the Disclosing Party without breach of anyobligation owed to the Disclosing Party, (iii) is received from a third partywithout breach of any obligation owed to the Disclosing Party, or (iv) wasindependently developed by the Receiving Party.
TheReceiving Party will (i) use an appropriate degree of care (but in no eventless than reasonable care) to protect Confidential Information, (ii) not todisclose or use any Confidential Information for any purpose outside the scopeof the Agreement, and (iii) limit access to Confidential Information to thoseof its employees, contractors and agents who need such access for purposesconsistent with the Agreement and who are bound by confidentiality restrictionsno less stringent than those herein. Notwithstanding the foregoing, APIANT maydisclose Customer’s Confidential Information to the extent it believes isreasonably necessary to comply with any court order or law.
Withinthirty (30) days following the expiration or earlier termination of theAgreement, to the extent APIANT possesses or controls any Customer ConfidentialInformation that comprises User Data, APIANT shall destroy or otherwise purgefrom APIANT’s systems such Confidential Information.
17. APIANT DISCLAIMS ALL WARRANTIESNOT EXPRESSLY STATED HEREIN
EXCEPT AS EXPRESSLY PROVIDED HEREIN,(i) APIANT DOES NOT WARRANT THAT ACCESS TO THE PLATFORM OR SOFTWARE WILL BEUNINTERRUPTED OR ERROR FREE OR THAT THE PLATFORM OR PROVISION OF ANY SERVICEwill produce any particular result or any solution to CUSTOMER’s particularneeds, and (ii) THE PLATFORM AND SOFTWARE ARE PROVIDED “AS IS,” AND APIANTDISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIEDWARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
18. Customer Will Defend APIANTAgainst Certain Claims
Customer will defend APIANT and holdAPIANT harmless against any claim, suit, demand, or action made or broughtagainst APIANT (i) alleging that Customer’s use of the Platform in violation ofthe Agreement infringes, misappropriates, dilutes or otherwise violates anyindividual’s or entity’s intellectual property rights, (ii) by any Third-PartyApplication provider alleging APIANT’s provision of any Service under theAgreement constitutes an unauthorized use of such Third-Party Application orotherwise violates the rights of such provider, or (iii) relating to or arisingfrom APIANT’s use of User Data as permitted by the Agreement. In addition,Customer will indemnify APIANT from any damages, losses, liabilities, costs andfees (including reasonable attorney’s fees) finally awarded against APIANT in connectionwith or in settlement of any such claim, suit, demand, or action.
19. APIANT IS NOT LIABLE FOR CERTAINDAMAGES AND LIABILITIES AND HAS MAXIMUM LIABILITY HEREUNDER
NOTWITHSTANDINGANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT WILL (I)APIANT’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER INCONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED, IN THE AGGREGATE,THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE CALENDAR MONTHIMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCHAMOUNT 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 FORANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVEDAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OFLIABILITY, AND WHETHER OR NOT APIANT HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THEEXTENT PROHIBITED BY APPLICABLE LAW.
20. TERM AND TERMINATION
Unlessearlier terminated as provided herein, the Agreement is effective beginning onthe Effective Date and will continue for the term of any purchased SubscriptionPlan(s) in accordance with the applicable Service-Specific Terms.
Inaddition to any other remedies APIANT may have, APIANT may, terminate theAgreement immediately upon written notice if Customer fails to pay any Fee orother amount when due or otherwise materially breaches the Agreement.
Upontermination of the Agreement, Customer must immediately cease all use of andall access to the Platform. Sections [11, 12, 16–27] of these APIANT Termsshall survive any termination or expiration of the Agreement. All other rightsand obligations shall be of no further force or effect.
21. The Agreement is Governed by theLaws of the Commonwealth of Pennsylvania
ThisAgreement is governed in all respects by the laws of the Commonwealth ofPennsylvania, without giving effect to its rules relating to conflict of laws.Neither any adoption of the Uniform Computer Information Transactions Act northe U.N. Convention on the International Sale of Goods applies to this Agreementor to the rights or duties of the parties under this Agreement.
22. Disputes Relating to theAgreement Will Be Resolved Through Binding Arbitration
Anydispute arising out of or relating to this Agreement, or its subject matter,shall be resolved exclusively by binding arbitration under the CommercialArbitration Rules of the American Arbitration Association (“AAA”). Thearbitration will be conducted in Philadelphia, Pennsylvania by a singlearbitrator knowledgeable in government contracting matters and the commercialaspects of “software as a service” or “platform as a service” arrangements andintellectual property. The arbitrator will provide detailed writtenexplanations 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 feesof the arbitrator and the AAA. The arbitration award will be final and bindingand may be enforced in any court of competent jurisdiction.
23. APIANT Is Not Responsible forThings APIANT Cannot Control
APIANTis not responsible nor liable for any delays or failures in performance fromany cause beyond APIANT’s control, including, but not limited to acts of God,changes to law or regulations, embargoes, war, terrorist acts, acts oromissions of third party technology providers, riots, fires, earthquakes,floods, power outages, strikes, weather conditions or acts of hackers, internetservice providers or any other third party, or acts or omissions of Customer.
Withoutlimiting the generality of the foregoing or Section , the Platform and theServices rely on third party technology and services such as applicationprogramming interfaces for Third Party Applications and web hosting services.Any change to the products or services offered by any of these third partyproviders may materially and adversely effect, or entirely disable, Customer’suse of or access to the Platform. Likewise, APIANT cannot guarantee that any UserData hosted on a third party server will remain secure. Customer herebyacknowledges that APIANT cannot offer any additional or modified securityprocedures other than those put in place by APIANT’s hosting serviceprovider(s); however, APIANT shall provide Customer with information regardingthe hosting service provider’s security practices upon request made tosupport@APIANT.com.
24. Certain Terms Relating toGovernment Users
TheSoftware and the Platform are “Commercial Items”, as that term is defined at 48C.F.R. §2.101, consisting of “Commercial Computer Software” and “CommercialComputer Software Documentation”, as such terms are used in 48 C.F.R. §12.212or 48 C.F.R. §227.7202, as applicable. To the extent the Software or Platformare deemed licensed to Customer hereunder, consistent with 48 C.F.R. §12.212 or48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the CommercialComputer Software and Commercial Computer Software Documentation are beinglicensed to U.S. Government end users (a) only as Commercial Items and (b) withonly those rights as are granted to all other end users pursuant to the termsand conditions herein. Unpublished-rights reserved under the copyright laws ofthe United States.
25. Certain Terms and RestrictionsRelating to Export Laws
Customeracknowledges the Software and the Platform are subject to the U.S. ExportAdministration Regulations and other export laws, restrictions, and regulations(collectively, the “Export Laws”) and, without limiting any otherobligation of Customer hereunder, Customer will comply with the Export Laws.Customer will not ship, transfer, export, or re-export the Software or thePlatform, directly or indirectly, to: (i) any countries that are subject to USexport restrictions; (ii) any end user whom Customer knows or has reason toknow will utilize them in the design, development, or production of nuclear,chemical or biological weapons, or rocket systems, space launch vehicles, andsounding 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. Customerrepresents and warrants Customer will not use the Software for a ProhibitedUse.
26. Assigning the Agreement
Neitherparty may assign any of its rights or delegate any of its obligationshereunder, whether by operation of law, change of control or otherwise, withoutthe prior written consent of the other party (not to be unreasonably withheld).Notwithstanding the foregoing, either party may assign the Agreement in itsentirety, without consent of the other party, to its affiliate or in connectionwith any merger, acquisition, corporate reorganization, or sale of all orsubstantially all of its assets, and in the case of Customer, not involving adirect competitor of APIANT. Any assignment or delegation in violation of thisSection shall be void. Subject to the foregoing, this Agreement shall bind andinure to the benefit of the parties, their respective successors and permittedassigns.
27. General Terms of the Agreement
Ifany provision of the Agreement is held to be unenforceable or invalid, thatprovision will be limited or eliminated to the minimum extent necessary so thatthe Agreement will otherwise remain in full force and effect and enforceable.
TheAgreement—including, without limitation, all applicable Service SpecificTerms—is the complete and exclusive statement of the mutual understanding ofthe parties and supersedes and cancels all previous written and oralagreements, communications and other understandings relating to the subjectmatter of the Agreement.
Anymodification to the Agreement by APIANT shall be effective after APIANT firstnotifies Customer of the modification (via an update delivered through thePlatform or the Site or via email or other notification) and Customer signifiesits acceptance via acknowledgement or continued use of any applicable Servicesfor a reasonable time.
Theheading references herein are for convenience purposes only and shall not bedeemed to limit or affect any of the provisions hereof. Unless otherwiseindicated to the contrary herein by the context or use thereof: (i) the words“hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similarimport shall refer to these APIANT Terms as a whole and not to any particularSection or paragraph of these APIANT Terms; (ii) the words “include,”“includes” or “including” are deemed to be followed by the words “withoutlimitation;” (iii) references to a “Section” are references to a section ofthis Agreement; and (iv) derivative forms of defined terms will havecorrelative meanings.
Allnotices required under or otherwise sent relating to the Agreement will be inwriting and, if to APIANT shall be delivered to legal@APIANT.com, and if toCustomer shall be delivered to the email address associated with Customer’sAccount; provided, however, any notice from Customer to APIANT required by,arising out of, or related to Sections 16 or 20 shall be delivered viacertified mail, return receipt requested, to: APIANT, Inc. 196 West AshlandStreet, Doylestown, PA 18901. Notice will be deemed to have been duly givenwhen received when receipt is electronically confirmed.