Terms and conditions
Terms and Conditions of Service – MSA
These TERMS OF SERVICE (“Terms”) are expressly incorporated into and made a part of that certain Master Services Agreement (the “Agreement”) by and between ApeVue Inc. (“ApeVue”) and the client identified the Order Form attached hereto (“Client”). For purposes of these Terms, all capitalized terms used herein but not otherwise defined shall have the meanings given to them in the License and the Order Form.
“Confidential Information” means all information of a confidential or proprietary nature obtained by one Party from the other Party in connection with the Agreement that (i) is identified by the disclosing party to the receiving party as confidential or proprietary or (ii) should reasonably be understood by the receiving party to be of a confidential or proprietary nature. However, the term “Confidential Information” shall not include information that (a) is independently derived by the receiving party without use of the other party’s Confidential Information, (b) is or becomes a matter of public knowledge through no fault of the receiving party, (c) is or was lawfully obtained by the receiving party from a third party that, to the knowledge of the receiving party, is under no obligation of confidentiality to the other party hereto, or (d) is aggregated and anonymized. The Parties agree that Confidential Information shall specifically include the existence of this Agreement and its Terms, as well as the source of the SOW Data.
“Rules” means all consumer protection and data privacy and protection laws, rules, regulations, regulatory guidance, and self-regulatory guidelines or principles applicable to the collection, use, sharing, or other processing of data, including without limitation Client Data and SOW Data, including, without limitation, (i) the California Consumer Privacy Act (“CCPA”); (ii) the Children’s Online Privacy Protection Act of 1998 (“COPPA”); (iii) the Fair Credit Reporting Act (“FCRA”); and (iv) the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM Act”).
2. Accounts and Registration
To access most features of the Service, Client must register for an account with ApeVue. Client is solely responsible for maintaining the confidentiality of Client’s account and password(s), and agrees to accept responsibility for all activities that occur under Client’s account, including by any Authorized Users. If Client has reason to believe that Client’s account is no longer secure, then Client will immediately notify ApeVue at contact@ApeVue.com.
Client will pay ApeVue the fees set forth in the Agreement including, without limitation, the fees set forth in the Statement(s) of Work (the “SOW Fees”) in accordance with this Section 3. All fees are in U.S. Dollars and are non-refundable except as otherwise expressly set forth in the Agreement. ApeVue may change the SOW Fees for any renewal term of a Statement of Work by providing Client with written notice of such change at least sixty (60) days prior to the start of the applicable renewal term. If Client does not agree to the change in SOW Fees, Client may terminate the Statement of Work to which the change applies, effective as of the expiration of the then-current term of such Statement of Work, by providing ApeVue with written notice of termination within thirty (30) days of Client’s receipt of notice of the change. Unless otherwise provided in the applicable Statement of Work, all fees will be due and payable within thirty (30) days of Client’s receipt of an invoice from ApeVue. Any amounts not paid when due shall be subject to finance charges of the lesser of one and one-half percent (1.5%) per month or the highest amount permitted by applicable law. If Client fails to pay any amounts when due, in addition to any other rights and remedies available to ApeVue, ApeVue also reserves the right to immediately suspend its performance of and/or Client’s access to any Service or Materials under the Agreement until all payments are brought current without incurring any obligation or liability to Client or any other person by reason of such action. Client will also promptly reimburse ApeVue for all reasonable costs and expenses incurred by ApeVue in collecting any past due fees or any interest thereon, including, without limitation, attorneys’ fees, court costs, and collection agency fees. All amounts payable by Client under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Client hereunder, other than taxes imposed on ApeVue’s net income.
4. Authorized Users;
Limitations on Users; Limitations on Materials.
4.1 Authorized Users.
The Service may be accessed only by Client’s employees and by Client’s authorized agents who have agreed in writing to be bound by the terms and conditions of the Agreement, in each case, who Client has authorized to use the Service (collectively, “Authorized Users”). Client shall be solely responsible for the actions and inactions of Client’s Authorized Users.
4.2 Limitations on Users
Subject to the terms and conditions of the Agreement, including full payment of all fees and other amounts owed to ApeVue and satisfaction in full of all obligations of Client pursuant to any Statement(s) of work, the Service and Materials may be used solely (i) by Client’s Authorized Users, (ii) for Client’s internal business purposes, and (iii) as expressly permitted under a Statement of Work. Client hereby represents and warrants that neither Client nor Client’s Authorized Users will utilize any data, analytical results or content provided by the Service on behalf or for the benefit of any third party without the prior written consent of ApeVue. Client’s right to use the Service is limited as described in the Agreement, and Client shall not use the Service in excess of any such limitation. ApeVue may monitor and collect data regarding usage of the Service and Materials to confirm compliance with the Agreement, including any applicable limitations, or for product or service quality control, development or enhancement. ApeVue shall not be required to provide any Service or Materials except as expressly set forth in a Statement of Work.
4.3 Limitations on Materials.
Notwithstanding anything else to the contrary in the Agreement, these Terms, or any Statement of Work, Client acknowledges and Agrees that ApeVue may withhold delivery of any Materials or Services from Client to the extent that such Materials or Services consist of data attributes from one or more data sources other than Client that, if provided to Client, could reasonably be expected to allow Client to identify the source of such data attributes.
5. Delivery and Use of Data
5.1 Delivery of SOW Data;
Quality Control. Client shall deliver to ApeVue the SOW Data described in the Statement(s) of Work on the terms set forth in such Statement(s) of Work, which terms shall include the frequency of and deadline for delivery of SOW Data, the nature and format of delivered SOW Data, and the content and attributes of SOW Data. ApeVue may at any time and from time to time establish content criteria, formatting criteria, and/or quality control criteria to which all SOW Data shall be subject, effective upon five (5) days’ notice to Client, and ApeVue’s determination, in its sole discretion, of any failure of SOW Data to meet such criteria upon effectiveness thereof shall be deemed a breach by Client of this Section 5.1.
5.2 Client Data
Certain features of the Service may permit users to upload Client Data. ApeVue agrees to collect, store, use, or otherwise process Client Data solely to provide the Service to and at the direction of Client. To the extent Client Data includes Personal Information as that term is defined by the CCPA, ApeVue agrees that it will not retain, use, or disclose Client Data except to provide the Service to Client, or to create de-identified or aggregate data for the purposes of aggregating with other data to calculate, model, and analyze trends, events, costs, and outcomes in connection with the Service. The parties agree that such de-identified and aggregate data are not Client Data and that ApeVue shall own and retain the right to collect, use in any lawful manner and disclose such data.
5.3 Client Representations and Warranties
By using Client Data with the Service or otherwise providing Client Data or SOW Data to ApeVue, Client affirms, represents, and warrants that:
a. Client’s acquisition and use of Client Data and SOW Data in connection with the Service complies with the Rules, and Client is the creator and owner of, or else has all necessary licenses, rights, consents, and permissions, to use and to authorize ApeVue to use and distribute Client Data and SOW Data in the manner contemplated herein, including as necessary to provide the Service; and
b. None of the Client Data, SOW Data, nor the use of Client Data or of SOW Data as contemplated in the Agreement: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause ApeVue to violate any law, rule or regulation (including any Rules).
5.4 Data Removal
ApeVue may, at any time and without prior notice, screen, remove, edit, or block any Client Data or SOW Data that, in ApeVue’s sole judgment, violates these Terms or the Agreement, or that is inaccurate, outdated, or otherwise objectionable. If ApeVue is notified that Client Data or SOW Data allegedly does not conform to these Terms or the Agreement, including any notice under the Digital Millennium Copyright Act (DMCA), ApeVue may investigate the allegation and determine, in ApeVue’s sole discretion, what action to take, which may include terminating accounts of repeat infringers and/or removing Client Data or SOW Data from use with the Service, which ApeVue reserves the right to do at any time and without notice.
Time is of the essence with respect to all delivery of SOW Data under these Terms, each Statement of Work, and the Agreement. If Client fails to deliver any SOW Data when due in accordance with the terms of the applicable Statement of Work, or if Client breaches any provision of this Section 5, then, in addition to any other rights and remedies available to ApeVue, ApeVue also reserves the right to take any of the following actions:
• increase the fees chargeable to Client with respect to any Service or Materials provided under any Statement of Work by one hundred fifty percent (150%) on both a retroactive and going-forward basis, which increased fee the Client and ApeVue agree and acknowledge constitutes liquidated damages and not a penalty;
• immediately suspend or terminate its performance of and/or Client’s access to any Service or Materials under the Agreement; and/or
• upon any termination of ApeVue’s performance of and/or Client’s access to any Service or Materials under the Agreement, require Client to purge all copies of all data received by Client pursuant to the Agreement.
In each case above, ApeVue may take such action without incurring any obligation or liability to Client or any other person by reason of such action. Client will also promptly reimburse ApeVue for all reasonable costs and expenses incurred by ApeVue in enforcing its rights pursuant to this Section 5, including, without limitation, attorneys’ fees and court costs.
6. Prohibited Conduct. Client agrees not to:
6.1 use the Service or any Materials for any illegal purpose or in violation of the Rules or any local, state, national, or international law;
6.2 use the Service or any Materials to violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
6.3 post, upload, or distribute any Client Data or SOW Data or other content to the Service that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
6.4 use the Service, any Materials or any consumer data provided to Client by ApeVue: (a) as a factor in establishing an individual’s eligibility for credit or insurance; (b) in evaluating an individual for employment purposes; (c) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; (d) in a way that would cause any consumer data provided by ApeVue to constitute a “consumer report” under the FCRA; (e) in any other manner that would cause such use of the Service, any Materials or any consumer data provided by ApeVue to be construed as a consumer report by any authority having jurisdiction over any of the Parties; or (f) other than in accordance with the Rules;
6.5 use the Service, any Materials or any consumer data provided by ApeVue for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email;
6.6 interfere with security-related features of the Service or any Materials, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, disassembling, decompiling or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6.7 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
6.8 perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying age or date of birth information;
6.9 sell or otherwise transfer the access granted under the Agreement to the Service or any Materials or any right or ability to view, access, or use the Service or any Materials;
6.10 use the Service or any Materials to create or assist any third party in creating a service that is competitive with the Service; or
6.11 attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Third-Party Services and Linked Accounts.
7.1 ApeVue may provide tools through the Service that enable Client to export information, including Client Data, SOW Data and content, to third-party services. By using one of these tools, Client agrees that ApeVue may (and represents that Client is authorized to allow ApeVue to), transfer that information to the applicable third-party service. Third-party services are not under ApeVue’s control, and ApeVue is not responsible for any third-party service’s use of Client’s exported information.
7.2 The Service may also contain links to third-party websites. Linked websites are not under ApeVue’s control, and ApeVue is not responsible for their content.
7.3 ApeVue may allow Client to link Client’s account(s) on the Service to accounts Client controls or has access to on certain third-party services, such as LinkedIn or Facebook (“Linked Accounts”). If Client links Client’s account on the Service to a Linked Account, Client is authorizing, and represents that Client has the requisite rights to and permission to so authorize, ApeVue to store and use Client’s access credentials to access Linked Accounts on Client’s behalf as Client’s agent to integrate Client’s experience with the Service with content, information, and features available through Linked Accounts. This may include transmission, storage, and retrieval of documents from Linked Accounts. Linking, accessing or using a third-party service through the Service in this manner may be subject to additional terms established by the applicable third-party service, and it is Client’s sole responsibility to ensure that Client has a valid and continuing right to use Linked Accounts, and that Client complies with such third-party service terms and policies.
8. Termination of Use
Discontinuation and Modification of the Service.
8.1 If either party fails to cure a material breach of any provision of the Agreement within thirty (30) days of receipt of written notice from the other party describing the breach, then the non-breaching party may terminate the Agreement or the Statement of Work to which the violation relates upon written notice to the breaching party. In addition, if Client violates any provision of the Agreement, ApeVue may immediately suspend ApeVue’s performance of and/or Client’s access to any Service or Materials without incurring any obligation or liability to Client or any other person by reason of such action. ApeVue reserves the right to modify the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to Client, provided that, if such modification materially adversely effects Client’s ability to access or use the Service, Client may provide ApeVue with written notice of such material adverse effect, and ApeVue will have thirty (30) days to mitigate this effect (the “Cure Period”). If, at the end of the Cure Period, Client is still materially adversely affected by the modification, Client may terminate the Agreement by providing ApeVue with written notice of such termination within thirty (30) days of the expiration of the Cure Period.
8.2 In the event of any termination of the Agreement, Client’s right to access and/or use the Service shall immediately terminate and Client shall return to ApeVue or destroy all Materials. Any provisions of the Agreement which by their nature or express terms should survive termination or expiration shall survive termination or expiration including, without limitation, Section 3 and Sections 5 through 22 of these Terms.
Proprietary Rights; Confidentiality.
10.1 The Service.
The Service and Materials, including the specific design and structure of programs, and including screen shots, algorithms and user interfaces, are considered proprietary information, trade secrets or copyrighted materials and Confidential Information of ApeVue. The Service and Materials may also include proprietary information or other information or property owned by third parties and licensed to ApeVue for use or distribution as contemplated hereby. Title to and ownership of the Service and Materials and all rights therein (including, without limitation, all intellectual property rights therein) shall, as between ApeVue and Client, be the exclusive property of ApeVue. Client will not disclose the Materials to any third party other than Authorized Users without the express written consent of ApeVue and will not make use of the Service or Materials except as expressly authorized in the Agreement. ApeVue reserves all rights to the Service and Materials not granted expressly in the Agreement.
10.2 Client Data.
As between ApeVue and Client, ApeVue claims no right, title or interest in or to any of the Client Data, including any intellectual property rights therein, except to the extent reasonably necessary for ApeVue to provide the Service to Client under the Agreement, and Client hereby grants ApeVue all rights and permissions in or relating to Client Data as are reasonably necessary for ApeVue to provide the Service to Client under the Agreement. Client represents and warrants to ApeVue that Client has and shall maintain all rights and permissions required to allow ApeVue to provide the Service to Client under the Agreement, including, without limitation, sufficient rights and permissions in the Client Data to authorize ApeVue to process, distribute and display the Client Data as contemplated by the Agreement. ApeVue covenants that it shall use Client Data solely for the purpose of (i) providing the Service to Client; or (ii) de-identifying Client Data for the purposes of aggregating it with other data to calculate, model, and analyze trends, events, costs, and outcomes in connection with the Service.
Each Party agrees that it shall not disclose Confidential Information of the other Party hereto to any third party or use such Confidential Information for any purpose other than its intended purpose or as permitted hereunder; provided, however, that (a) a Party may disclose the Confidential Information of the other Party to its officers, employees, contractors, vendors, advisors, representatives and agents in connection with their performance of services for or on behalf of such first Party or other Party and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in the Agreement; and (b) a party may make any disclosure that such party reasonably believes is required by law or regulation if the disclosing party notifies the other party in advance of such disclosure and takes reasonable steps to minimize such disclosure and allows the other party to do the same. Each party shall implement reasonable security measures designed to protect the Confidential Information of the other party from unauthorized disclosure or use that are at least as protective of such Confidential Information as the measures used to protect its own Confidential Information. Because the unauthorized use, transfer or dissemination of any Confidential Information may substantially diminish its value and irreparably harm a party, if the other party breaches this Section 10.3, the first Party shall, without limiting its other rights or remedies, be entitled to seek equitable relief, including but not limited to injunctive relief.
11. Client Indemnity.
Client will defend and indemnify ApeVue and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “ApeVue Entities”) from and against all damages, claims, actions, judgments, liabilities, losses, costs and expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in any way connected with: (a) Client’s violation of any portion of the Agreement, any representation, warranty, or agreement referenced in the Agreement or any applicable law or regulation; (b) Client’s violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (c) any dispute or issue between Client and any third party. ApeVue reserves the right, at ApeVue’s own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client (without limiting Client’s indemnification obligations with respect to that matter), and in that case, Client agrees to cooperate with ApeVue’s defense of that claim.
12. ApeVue Indemnity.
12.1 Infringement Claim
ApeVue shall indemnify and defend, or at its option, settle, any claim, suit or proceeding brought against Client based on an allegation that use of the Service by Client as authorized in the Agreement infringes upon any United States patent or any copyright or violates any trade secret rights of any third party (each an “Infringement Claim”), provided that Client promptly notifies ApeVue in writing of Client’s notification or discovery of an Infringement Claim such that ApeVue is not prejudiced by any delay of such notification. ApeVue shall pay any damages finally awarded against Client in such Infringement Claim and the reasonable costs associated with the settlement of any Infringement Claim. In no event shall ApeVue be liable for any other losses arising from any Infringement Claim. ApeVue shall have sole control over the defense or settlement of any Infringement Claim, and Client will provide reasonable assistance in the defense of same (ApeVue will reimburse Client for reasonable expenses incurred in providing such assistance).
12.2 Infringement Cures
Following notice of any Infringement Claim, or if ApeVue believes such a claim is likely, ApeVue will, at its sole expense and option: (i) procure for Client the right to continue to use the allegedly infringing Service; (ii) replace or modify the allegedly infringing Service to make it non-infringing; or (iii) cancel the allegedly infringing Service (with Client retaining no right to continue to access or use the allegedly infringing Service) and refund any fees paid by Client to ApeVue to access and use the cancelled Service during time periods after the date of cancellation.
ApeVue assumes no liability, and shall have no liability for any Infringement Claim based on: (i) Client’s use of any Service after notice that Client should cease use of such Service due to an Infringement Claim; (ii) any modification of the Service by Client or at Client’s direction; or (iii) Client’s combination of the Service with any programs, data (including any Client Data or SOW Data), software, hardware, business processes or other materials not specifically provided by ApeVue, if such Infringement Claim would have been avoided by the exclusive use of the Service alone. THE FOREGOING STATES CLIENT’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
13. Disclaimers; No Warranties
THE SERVICE AND ALL DATA, ANALYTICAL RESULTS OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. CLIENT DATA, SOW DATA, AND ANY DATA, ANALYTICAL RESULTS AND CONTENT AVAILABLE THROUGH THE SERVICE MAY BE LOST IN CONNECTION WITH USE OF THE SERVICE. THE APEVUE ENTITIES MAKE NO WARRANTY AS TO THE ACCURACY OF ANY DATA, ANALYTICAL RESULTS OR CONTENT PROVIDED THROUGH THE SERVICE, AND DISCLAIM ANY ENHANCED ABILITY TO VERIFY THAT ANY SUCH DATA, ANALYTICAL RESULTS OR CONTENT ARE UP-TO-DATE. THE APEVUE ENTITIES DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, DATA AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WITHOUT LIMITING THE FOREGOING, THE APEVUE ENTITIES MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL COMPONENTS, OR ERROR FREE.
14. Limitation of Liability
IN NO EVENT WILL THE APEVUE ENTITIES BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE AGREEMENT, CLIENT’S ACCESS TO OR USE OF, OR CLIENT’S INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY APEVUE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
CLIENT AGREES THAT THE AGGREGATE LIABILITY OF THE APEVUE ENTITIES TO CLIENT FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT, CLIENT’S ACCESS TO OR USE OF, OR CLIENT’S INABILITY TO ACCESS OR USE, THE SERVICE, ANY PORTION OF THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT CLIENT HAS PAID TO APEVUE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.
EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Dispute Resolution and Arbitration
Client and ApeVue agree that every dispute arising in connection with the Agreement will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. CLIENT UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THE AGREEMENT CLIENT AND APEVUE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 15.1, the Parties agree that nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either Party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) to file suit in a court of law for breach by Client of the payment provisions of Section 3; or (e) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between Client and ApeVue will be governed by the Commercial Dispute Resolution Procedures (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting ApeVue.
15.4 Notice; Process
A Party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if ApeVue does not have a physical address on file for Client, by electronic mail (“Notice”). ApeVue’s address for Notice is: ApeVue Inc., 600 5th Ave., Floor 2, New York, NY 10020. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). Both Parties agree to use good faith efforts to resolve the claim directly, but if an agreement is not reached within 30 days after the Notice is received, Client or ApeVue may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Client or ApeVue must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If a dispute between Client and ApeVue is finally resolved through arbitration in Client’s favor, ApeVue will pay Client the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by ApeVue in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Any arbitration hearing will take place at a location to be agreed upon in New York, New York. The arbitration shall be governed by the laws of the State of New York without regard to conflict of laws provisions. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of costs, fees or expenses at any time during the proceeding and upon request from either Party made within 14 days of the arbitrator’s ruling on the merits
15.6 No Class Actions
CLIENT AND APEVUE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CLIENT’S OR APEVUE’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Client and ApeVue agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Section 15.5 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the Parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to the Agreement.
16. Consent to Electronic Communications
17. Independent Contractors
The relationship of Client and ApeVue is that of independent contractors, and neither Client nor ApeVue is an employee, agent, partner or joint venturer of the other.
18. Governing Law and Jurisdiction
The Agreement shall be governed by and construed under the laws of the State of New York without regard to conflict of laws provisions. Subject to Section 15, the federal and state courts located in New York, New York shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of the Agreement. Each Party hereto expressly consents to the personal jurisdiction of the courts of New York, New York and service of process being effected upon it by certified mail, return receipt requested, sent to the address set forth on the signature page of the Order Form.
19. Limitation on Claims
No action arising under or in connection with the Agreement may be brought by Client more than two (2) years after Client becomes aware of or should reasonably become aware of the occurrence of events giving rise to the cause of action.
20. Force Majeure
ApeVue will be excused from performing its obligations under the Agreement as a result of any acts of God, floods, fires, earthquakes, epidemics, pandemics, wars, invasions, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest, government orders, laws, or actions, embargoes or blockades, national or regional emergencies, strikes, labor stoppages or slowdowns, or other causes beyond ApeVue’s reasonable control; provided that ApeVue will use reasonable efforts to mitigate the effect of a force majeure event.
The Agreement represents the entire and exclusive understanding and agreement between Client and ApeVue regarding the subject matter thereof and supersedes and overrides all prior agreements on the same subject matter. The Agreement shall not be modified other than in accordance with the Terms and/or by a writing signed by Client and ApeVue. If there is any conflict between the Order Form, the Terms and the Statements of Work, then the terms of each document will take precedence in the following order: first, the Order Form; second, the Terms; and third, the Statements of Work. Client may not assign or transfer the Agreement or any of Client’s rights or obligations under the Agreement, in whole or in part, by operation of law or otherwise, without ApeVue’s prior written consent, and any attempt to do so shall be null and void. Except as set forth in Section 11 and 14 with respect to ApeVue Entities, the Agreement is for the sole benefit of the Parties and their respective successor and permitted assigns. The failure to require performance of any provision of the Agreement will not affect a Party’s right to require performance at any other time after that, nor will a waiver by a Party of any breach or default of the Agreement, or any provision of the Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in the Agreement is for convenience only and will not have any impact on the interpretation of any provision. If any part of the Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. The Agreement may be executed in two or more counterparts (including via .pdf or similar electronic transmission), each of which will be deemed an original and all of which together will constitute one and the same instrument.