APERIA SUBSCRIPTION SERVICE TERMS

Last updated: January 2020

These Aperia Subscription Service Terms (“ASST”), together with the Master Subscription Terms (“Terms”) incorporated herein by reference, set forth the specifics of the software-as-a-service Subscription. All capitalized terms are as defined in the Terms unless otherwise stated herein.

1.       License Grant and Responsibilities

1.1       License. Aperia grants Customer a worldwide, non-exclusive, non-transferable (except as provided in the Assignment section of the Terms) license, during the relevant Subscription Term, to use any Content for Customer’s internal business purposes subject to the use restrictions set forth in this Section.

1.2       Login Information. To gain access to and use the Service, Aperia will require Customer and any Users to create a login ID and password (“Login Information”). Customer and Users are responsible for all activity occurring under Users’ Login Information and must keep all Login Information confidential and not share Login Information with third parties. Aperia has no obligation or responsibility with regard to use, distribution, disclosure, or management of Login Information except as set forth in Aperia’s Privacy Policy.

1.3       Contractors. Subject to the terms of Section 1.4 hereof, Customer may permit its Contractors to access and use the Service and otherwise exercise Customer’s rights under this Agreement, provided such use is for the sole benefit of Customer (or its Affiliates).

1.4       Customer Responsibilities. Customer shall (i) be responsible for Users’ and Contractors’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Aperia promptly of any such unauthorized access or use, (iii) use the Service only in accordance with the Documentation and applicable laws and government regulations, and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Customer agrees to defend, indemnify and hold harmless Aperia against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Aperia has no obligation to monitor Customer’s use of the Service, Aperia may do so and may prohibit any use of the Service it believes may be (or is alleged to be) in violation of the foregoing.

1.5       General Restrictions on Use. The rights granted herein will remain in force only for so long as this Agreement remains in effect. Customer will not: (i) decompile, disassemble, or otherwise reverse engineer the Service or attempt to obtain or perceive source code from the Service (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) sell, rent, lease, or use the Service (or any portion thereof) for time sharing purposes; or (iii) remove any copyright or proprietary notices contained in the Service. Customer shall not use the Service to (a) violate any local, state, national or international laws, (b) stalk, harass or harm another individual, (c) collect or store personal data about other users, (d) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, or (e) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services. Without Aperia’s express written consent, you may not (i) use any high-volume, automated, or electronic means to access the Service (including without limitation, robots, spiders, or scripts), or (ii) frame the site, place pop-up windows over its pages or otherwise affect the display of its pages.

1.6       Transfer of Data Across National Boundaries. Customer agrees and acknowledges that Customer Data may be transferred by Aperia across national boundaries and stored and processed in any of the countries around the world in which Aperia or its contractors maintain offices. Aperia agrees and acknowledges that any such Customer Data transfer shall be in compliance with the terms of this Agreement and all applicable laws.

2.       Support.

2.1       Support. During each Subscription Term, Aperia will provide Customer with Support for the Service, consisting of email assistance at support@Aperia.com for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below from 8 am – 8 pm Eastern Time, Monday through Friday, excluding Aperia holidays, which parameters may be updated from time to time.

2.2       Service Updates. As part of the Subscription, Aperia (a) may, from time to time, modify or update the Service, and (b) represents that such modifications or updates will not materially decrease the functionality of the Service.

3.       Access and Data Security

3.1       Access to Systems. Access, if any, to Customer’s computer, telecommunication or other information systems (“Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel as are separately designated by Customer in writing from time to time. Access is subject to business control and information protection policies, standards, and guidelines as may be provided by Customer.

3.2       Data Protection

3.2.1      Customer Data. Aperia will use Customer Data only in accordance with its Data Privacy Policy.

3.2.2      Safeguards. Aperia will implement and maintain administrative, physical and technical safeguards that prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any Customer Data as may be held or accessed by Aperia. Aperia shall utilize Customer Data in accordance with the Privacy Policy published on Aperia’s website. In the event that Aperia proposes a material change to its Privacy Policy, it shall provide Customer written notification at least ten (10) business days in advance of the implementation of such change.

3.2.3      Notification of Security Breach. Aperia will notify Customer immediately following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Customer Data. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of Aperia’s investigation, and if known and applicable, the potential number of persons affected by release of data relating to such person (“Affected Persons”). If applicable, upon written request from Customer, Aperia agrees to notify the Affected Persons regarding any security breach in a form approved in writing by Customer. Such notices will be delivered within a reasonable time at Customer’s direction. All costs associated with any security breach, including but not limited to the costs of the notices to Affected Persons, will be the sole responsibility of Aperia. Aperia agrees that it will not communicate with any third party, including, but not limited to the media, consumers and Affected Persons regarding any security breach without the express written consent and direction of Customer.

3.3       Further Assurance. At Customer’s request, Aperia will execute and abide by the terms of any agreements as may be required by applicable law or regulation.

4.       Third Party Links. Any and all third-party links are governed by the terms of Aperia’s Data Privacy Policy.

5.       Customer’s Representations and Covenants Regarding Customer Data. Customer represents that it is the owner, licensor, or authorized user of all Customer Data. Customer covenants that it will not upload, record, publish, post, link to, or otherwise transmit or distribute Customer Data that: (a) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Aperia, or any rights of publicity or privacy of any party; (b) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (c) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).

6.       Service Level Agreement

6.1       No Disruption. Except to the extent necessary for performance of Scheduled Support (as defined below in Section 10.4.1), in no event will Aperia, its agents or employees or anyone acting on its behalf, disable or interfere, in whole or in part, with Customer’s use of or access to the Service, Customer Data or any software, hardware, Systems or data owned, utilized or held by Customer without the written permission of a corporate officer of Customer, whether or not the disablement is in connection with any dispute between the parties or otherwise.

6.2       Service Availability Objective. Aperia will make commercially reasonable efforts to provide monthly Service Availability of 99.0% (“Service Availability Objective”). “Service Availability” is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding (a) Scheduled Support, (b) Customer Error Incidents (as defined in Section 10.3), and (c) Force Majeure Event. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Support, Customer Error Incidents, and Force Majeure Events.

6.3       Remedy for Failure to Achieve Service Availability Objective. At the request of Customer, Aperia will calculate specific Service Availability during a given calendar month. In the event the Service Availability Objective was not met in a given month, then for each day in such month that the duration of the Service unavailability exceeds four (4) continuous hours, Customer will be entitled to receive a one (1) day credit for the Service (a “Service Credit”), subject to the Agreement and requirements of this Section 10. For purposes of calculating the Service Availability Objective, Aperia will only consider the Service unavailable if Customer opened a trouble ticket relating to the Service unavailability with the Aperia customer support department on the first day of the Service unavailability. To obtain a Service Credit for Aperia’s failure to meet the Service Availability Objective, Customer must request such credit in writing no later than the calendar month following the month of the Service unavailability giving rise to a credit request. In the event of a conflict between the data in Customer’s records and Aperia’s records, the data in Aperia’s records shall prevail. Any Service Credits due hereunder will be applied to the account at the conclusion of the then-current Subscription Term, by extending such Subscription Term by the length of the Service Credits. Notwithstanding the foregoing, if the Service was purchased on a monthly or pay-per use basis, there will be no Service Credits given. Service Credits (a) may not be redeemed for cash, (b) shall not be cumulative beyond a total of one (1) week of Service Credits in any one (1) calendar month, and (c) shall be the sole and exclusive remedy for any failure of the Service or any failure of Aperia to meet the Service Availability Objective. Any unused Service Credits shall expire upon termination of this Agreement.

6.4       Support Definitions

6.4.1      Scheduled Support” is defined as any maintenance performed during Aperia’s standard maintenance windows (weekends between Saturday 12:01am Pacific Time and Sunday at 11:59pm Pacific Time, and on weekdays between 6:00pm Pacific Time and 11:59pm Pacific Time) and any other maintenance of which Aperia gives at least forty-eight (48) hours advance notice. Aperia may perform maintenance on some or all of the Service in order to upgrade hardware or software that operates or supports the Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the Service. Wherever possible, Scheduled Support will account for no more than four (4) hours of downtime per month, two (2) hours of downtime per occurrence.

6.4.2      Customer Error Incident” is defined as any Service unavailability resulting from applications, Content, or equipment provided by Customer or a User, or the acts or omissions of a User.

7.       Ownership of Intellectual Property

7.1       Ownership of Intellectual Property. Aperia and its licensors will retain ownership of all right, title and interest in (i) the Service and all improvements, enhancements and modifications thereto, (ii) all software, applications, inventions and other technology developed in connection with implementing the Service or Supporting Customer, and (iii) all Intellectual Property Rights related to the foregoing.

7.2       Ownership of Customer Data. Notwithstanding the foregoing, as between Aperia and Customer, Aperia will not: (i) use Customer Data other than to the extent necessary to provide the Subscription; (ii) copy, modify, create derivative works of or disclose Customer Data (provided that Aperia may transfer Customer Data to its hosting service); or (iii) commercially exploit Customer Data or allow it to be commercially exploited on Aperia’s behalf. Notwithstanding the foregoing, Aperia may, during and after the Subscription Term, collect and analyze Customer Data subject to the provisions of Aperia’s Data Privacy Policy.

7.3       No Harmful Material. Aperia will run industry-standard anti-virus software to avoid introduction by the Service of any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code to Customer’s Systems.