This master subscription agreement (“MSA”) governs your usage of Apptivo FREE business management Software as a Service and the Apptivo.com website (“Apptivo”) from the date of signing up for the application. By accepting this agreement by clicking the box indicating your acceptance, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates and users to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if do not agree with the terms and conditions in this agreement, you should not accept this agreement and may not use our services. This Agreement was last updated on May 5th, 2009. It is effective between You and Us as of the date of You accepting this Agreement.
Definitions
This section contains a list of terms and their meaning within this agreement:
We, Us or Our
These refer to Sirahu Corporation, the company who you are contracting with. All legal inquiries should be directed to Sirahu Corp, 34364 Eucalyptus Terrace, Fremont, CA 94555. All legal disputes will be settled in accordance with California law.
You or Your
These refer to the company or other legal entity for which you are accepting this Agreement and subsidiaries of that company or entity.
Services
This refers to the online, web-based applications and platform provided by Us via www.apptivo.com and/or other designated websites as described in the User Guide, that you are electing to use by registering at www.apptivo.com, including associated offline components but excluding Third Party Applications.
Your Data
Refers to all electronic data or information submitted by you to the Service, while using the service.
Third-Party Applications
This refers to online, web-based applications and offline software products that are provided by third parties that interoperate with the Services, and are identified as third-party applications, including but not limited to those listed on the Partner list.
Malicious Code
This refers to viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1. Provided Services
This section covers the services that are being provided by Apptivo.
1.1 Provision of the free service
We shall make the Apptivo service available to you pursuant to this agreement. The services are provided on an “as is” basis, free of charge. You agree that Your acceptance hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
1.2 User subscriptions
User subscriptions are for designated users and need not be shared or used by more than one user, since you are free to create as many users as you want, free of charge. You create new users by creating new employees in Apptivo. Consult the user manual to understand more about this.
1.3 Usage Limitations.
Services may be subject to other limitations, such as, for example, limits on disk space, API load, Page views, etc. Any such limitations are specified in the User Guide. The Services provide real-time information to enable you to monitor your compliance with such limitations.
2.Apptivo service users
This section defines the Apptivo service, identifies the categories of users and acceptable usage conditions for each category of users:
2.1 Categories of Users
This section defines the various categories of users:
- End users – This category of users use Apptivo to manage and run their business. This category has two sub categories:
- Entrepreneurs, business owners, promoters – If you own a business or are thinking of starting a business, apptivo is the service for you.
- Employees – If you are an employee of a business that uses Apptivo, you can become a user of apptivo for that employer.
- Vendors & Service Providers – This category of users use Apptivo to manage their customer relationship or to provide a service to a firm that uses Apptivo.
- Customers – This category of users use Apptivo to manage their vendor relationships and to find out more about project and delivery statuses.
- Competitors – These are competitors of Apptivo or those who intend to compete with Apptivo.
- Data aggregators – These are users who intend to aggregate information from Apptivo for any purpose.
2.2 Conditions of usage for End Users
Apptivo is free for end users. Use the service for free as long as you want to. You agree to allow access only to your employees (including yourself) to your firm in Apptivo. You SHALL NOT define your vendors, service providers, customers or their employees as users of your firm in Apptivo. However, they can be users of Apptivo, of their own firms. You can register as many firms as you want in Apptivo. We link all your accounts and allow you to pick your firm when you sign in. You need to be an employee of the firm, to be linked for this single sign on and should have used the same email id to register across all these firms.
2.3 Conditions of usage for Vendors and Service Providers
If you service or sell to a firm that is using Apptivo, then you should contact us.
2.4 Conditions of usage for Customers
If you are a customer of a firm that uses Apptivo, then you are free to use the service as long as you want. You will however need to be invited by your Vendor to register yourselves.
2.5 Conditions of usage for Competitors
If you are a competitor of Apptivo or intend to compete with Apptivo, you may not access our services, except with our prior written consent.
2.6 Conditions of usage for Aggregators
If you are a data aggregator, you are not allowed to use Apptivo on another user’s behalf, even if that user provides their credentials to you. If you need to aggregate data from Apptivo, you should become our affiliate and work with us to get your service implemented.
3. Implementation and Support
This section covers all the activities to get you up and running and keep you up and running.
3.1 Implementation
To make the software applicable for various businesses, there are several configuration options that exist in Apptivo. To make Apptivo work with minimal setups, we use several default settings while creating your firm. We are not responsible for the behavior of the software based on these default settings. To customize the behavior of the application, you can either do it yourself or use one of the approved partners at www.apptivo.com.
3.2 Support
We shall provide email and forum support to your users at no charge. If you require phone and onsite support that can be purchased from our authorized partners at www.apptivo.com.
4. Third-Party Providers and Apptivo Service Provider Network Services
This section covers all the clauses covering services provided/performed by third parties, but are either advertised in or integrated into the Apptivo service.
4.1 Advertised services
All advertisements that are shown in Apptivo are meant to inform you about a particular product or service. They are not our endorsements. Apptivo will charge advertisers to advertise through the Apptivo service.
4.2 Community Ratings
In the Apptivo community, participants may rate or comment about products, services and service providers. These ratings are not reflective of Apptivo’s opinions about them and cannot be construed as either our recommendation to use or not use a particular product or service or provider.
4.3 Signing up for third-party services and products
At various points in the business process, Apptivo might offer third party applications for sale or subscription. The sign up process is merely intended to make the availability of such service by the provider and the use of such service by you, easier. Any acquisition/use by you of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by us as “certified” or otherwise, except as specified in the sign up form. No purchase of third-party products or services is required to use the Services.
4.4 Third-party applications and your data
If you subscribe to a third-party service for use with Services, you acknowledge that we may allow providers of those third party applications to access your data as needed by both Apptivo and the third-party service to interact meaningfully. We are not responsible for any disclosure, creation, modification or deletion of your data resulting from any such access by third-party providers. Apptivo will allow you to change providers, unsubscribe from services from within the service.
4.5 Availability of third-party services
Service features that interoperate with third-party services depend on the availability of such services. If a provider desupports or ceases to make an API available to us, Apptivo may cease to support that provider. In such case, Apptivo will make an earnest effort to re-engineer the integration with the same provider or provide other equivalent services as alternatives.
4.6 Performance of third-party services
Third-party service integrations may impact the speed at which a particular transaction can be performed in Apptivo. Apptivo will make an earnest effort to work with these third-party providers to improve the performance when such performance is below generally acceptable web response levels.
5. Fees and payment for purchased third-party services
This section covers all the fees and payments for purchased third-party services.
5.1 Use fees
You shall pay all fees specified in the sign up form, in the frequency specified in the sign up form. Except as otherwise specified herein or in the sign up form,
- Fees are quoted and payable in the currency quoted in the sign up form
- Fees are based on services purchased and not actual usage
- Payment obligations are non-cancelable and fees paid or non-refundable and
- Subscriptions cannot be revised downward during the relevant subscription term stated in the sign up form.
User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof.
5.2 Invoicing and Payment
You will provide us with valid and updated credit card information or bank account information to us. You authorize us to charge your credit card or bank account for the initial subscription term and any subsequent renewals. Such charges shall be made in advance, either annually or monthly or quarterly, depending on the billing frequency stated in the sign up form. You will be emailed an invoice, for the amount charged. If you cancel your subscription at any point, your account will be charged until the end of the period that you already paid for. Cancellations will be effective from the next subscription period or until the time the current subscription is completed.
5.3 Suspension of Service and Acceleration
If our attempt to charge your credit card or bank account results in a denial, we may, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the third-party services until such amounts are paid in full. This suspension may impact the behavior of Apptivo.
5.4 Taxes
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction. You are responsible for paying all taxes associated with your purchases. If we have the legal obligation to pay or collect taxes for which you are responsible, the appropriate amount shall be charged to the same credit card or bank account you provide. If you are eligible for any waivers, you have to handle that with the tax authorities for appropriate refunds.
6. Proprietary Rights
This section details your and our proprietary rights.
6.1 Reservation of Rights
Subject to the limited rights expressly granted herewith, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you other than what is expressly set forth herein.
6.2 Restrictions
You shall not:
- Permit anyone except you and your employees to access the services
- Create derivative works based on the services
- Copy, frame or mirror any part or content of the services, other than for your own internal purposes
- Reverse engineer our software and services
- Access the services in order to:
- Build a competitive product or service
- Copy any features, functions or graphics of the services.
6.3 Ownership of your data
As between us and you, you exclusively own all rights, title and interest in and to all of your data. Notwithstanding this unconditional ownership, if the service is not used by you for more than 180 days, Apptivo may decide to clean up your data.
6.4 Feature requests
Apptivo encourages users to suggest their ideas for improving the service. We shall have all rights to such requests, suggestions, and any content that is part of that request.
7. Confidentiality
This section contains all the confidentiality clauses.
7.1 Definition of confidential information
In the context of this agreement " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include your data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. The receiving party shall not be liable for disclosure of any particular Confidential Information of the disclosing party, if the same:
- is in the public domain at the time of its disclosure or thereafter enters the public domain through no fault of us;
- is or becomes known to us on a non-confidential basis without breach of any obligation of confidentiality;
- is independently developed by us without reference to your Confidential Information; or
- is legally required to be disclosed
7.2 Protection of Confidential Information
All Confidential Information furnished by the disclosing party to the receiving party in the course of performing under this Agreement shall remain the property of and be deemed proprietary to disclosing party. Receiving party agrees:
- To receive such Confidential Information in strict confidence and not disclose it to any third party without the prior written consent of the disclosing party;
- To accord such Confidential Information at least the same level of protection against unauthorized use or disclosure that the receiving party customarily accords to its own confidential, proprietary or trade secret information of a like nature, but in no event less than reasonable care; and
- To use such Confidential Information solely and exclusively for the purposes of and in accordance with the terms of this Agreement. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing party, the receiving party shall notify the disclosing party promptly upon becoming aware thereof.
7.3 Protection of your data
Without limiting the above, we shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data. We shall not
- modify your data
- disclose your data except as compelled by law in accordance with Section x.4 (Compelled Disclosure) or as expressly permitted in writing by you, or
- access your data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters.
7.4 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
8. Warranties and Disclaimers This section covers all the warranties and disclaimers.
8.1 Our Warranties We warrant that:
- Our software and services shall perform in accordance with our online wiki.
- All articles – whether promoting Apptivo usage or general business advice – are provided on an “as is” basis. Apptivo does not make any warranties – expressed or implied – by publishing these articles on our site.
- All the services, either software based or not will be governed by individual agreements between you and the service providers. Apptivo does not make any warranties – express or implied – by creating the integration between Apptivo and the various service provider network participants.
For any breach of such warranty, your exclusive remedy shall be as provided in Section x.3 (Termination for Cause) and Section x.4 (Refund or Payment upon Termination).
8.2 Your Warranties
You warrant that you will use the service in accordance with the usage policies outlined in Section x.x (Users &Apptivo Usage). You also warrant that you will not use the service to do anything unlawful. In cases where you are found to be in conflict the law, Apptivo will always take the side of the law and abide by the law, including releasing information about your activities, data to the appropriate legal authority. For any breach of such warranty:
- Apptivo may suspend your account in all the Apptivo firms that you have access to.
- Your firm may be disallowed to use Apptivo.
- You may be disallowed to open new accounts in Apptivo.
8.3 Mutual Warranties
Each party represents and warrants that:
- It has the legal power to enter into this Agreement
- It will not transmit to the party any Malicious Code in any form.
8.4 Disclaimers
Except as expressly provided herein, either party makes no warranties of any kind, express, implied, statutory or otherwise. This disclaimer applies to everything including warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
9. Limitation of Liability
This section contains the limitation of liability clauses.
9.1 Exclusion of Consequential and Related Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE, ONE TO THE OTHER, FOR ANY LOST PROFITS, LOSS OF BUSINESS, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 Limitation of Liability
Each Party’s total liability to the other, whether in contract or in tort (including, without limitation, breach of warranty, negligence and strict liability in tort) shall be limited to an amount not to exceed, in the aggregate for all claims, the total dollar amounts paid or payable as fees to use the service.
9.3 Force Majeure.
Either Party’s performance will be excused, if and to the extent reasonably necessary, in the event that an act of God, war, civil commotion, fire, explosion, or other force majeure event that occurs without the fault or negligence of the non-performing Party prevents timely performance under the Agreement; provided, however, that such failure to perform or delay could not have been prevented through the use of reasonable precautions, and such delay or non-performance cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, work-around plans or other means. The affected Party will promptly notify the other Party of the circumstances causing its delay or failure to perform and of its plans and efforts to implement a work-around solution. For as long as such circumstances prevail, the Party whose performance is delayed or hindered will continue to use all commercially reasonable efforts to recommence performance without delay.
10. Term and Termination
10.1 Term.
The term of this Agreement will commence on the date you accept it and shall remain in full force and effect for one year unless terminated pursuant to the provisions of this Section. Thereafter, this Agreement will be renewed automatically for successive one-year periods unless terminated pursuant to the provisions of this Section.
10.2 Termination for Cause.
This Agreement and/or any Work Order(s) issued under it may be terminated by either Party by written notice to the other Party in the event such other Party materially breaches any of its material obligations as set forth in this Agreement and/or any Work Order(s) issued under it and fails to cure such breach within thirty (30) days after written notice thereof from such notifying Party. The termination will occur as follows:
- Apptivo will terminate user/firm by suspending the user/firm
- User/firm can terminate Apptivo usage by simply not using the service. Apptivo will perform periodic cleanups of all accounts that are not in use.
10.3 Termination for Convenience.
The Client may terminate this Agreement for convenience any time by not using the service.
10.4 Survival
Provisions of this Agreement which by their express terms or context impose continuing obligations on the Parties will survive the expiration or termination of this Agreement for any reason.
11. General Provisions
This section contains all the general provisions of this agreement.
11.1 Export Compliance
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing:
- Each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports
- You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
11.2 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency and fiduciary or employment relationship between the parties.
11.3 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
11.4 Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to any other remedies of a party at law or in equity.
11.5 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Attorney Fees
You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this agreement following your breach of this agreement.
