“www.apxor.com” (hereinafter, the “Website”) is owned and operated by Apxor Technology Solutions Private Limited (“Company”), a company incorporated under the Companies Act 1956/2013, having its registered office at D.No:39-18-16, Industrial Estate Post, Vamsi Nagar, Madhavadhara, Vishakhapatnam - 530007, Andhra Pradesh, India.
The headings of each section in this Agreement are only for the purpose of organising the various provisions under this Agreement in an orderly manner. These headings shall not be used by either party to interpret the provisions contained under them in any manner. Further, the headings have no legal or contractual value.
We hold the sole right to modify the Terms of Service without prior permission from You or providing notice to You. The relationship creates on You a duty to periodically check the Terms of Service and stay updated on its requirements. If You continue to use the Website or avail any of its services without registration following such change, this is deemed as consent by You to the so amended policies. Your continued use of the Website and it’s services is conditioned upon your compliance with the Terms of Service, including but not limited to compliance with the Terms of Service even after alterations, if any.
Apxor is a mobile app analytics platform designed to understand and solve the core problem of mobile end user retention (hereinafter, the “Services”). All data so gathered from the customers shall be used by us for analysis and benchmarking in order for the customer app to run efficiently and smoothly. The customers are required to register with us after which they shall get a free trial for a period of 14 days. Thereafter the customer can purchase SaaS based software services. Additionally we also provide SDKs for native apps to consume.
Each party shall provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Customer’s use of the Service. Customer is responsible for providing (i) all equipment, subscriptions and credentials necessary for Apxor to receive the Customer Data and (ii) all servers, devices, storage, software (other than the Client Libraries), databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
Apxor shall use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades.
Apxor shall attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Apxor shall not be liable for any failures in the Service or any other problems which are related to (a) the Customer Data or Customer Systems or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Apxors’ facilities or control.
Apxor grants Customer a nonexclusive, nontransferable right and license (without right to sublicense) during the Service term, to (a) access and use the Service, solely for Customer’s internal business purposes and (b) download, install and use the Client Libraries in connection with Customer’s authorized use of the Service. The Service is made available to Customer solely as hosted by or on behalf of Apxor, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Service or any software (other than the Client Libraries). Customer’s access and use of the Service shall comply with all other conditions set forth in the Contract and Documentation signed between the parties (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses).
Apxor shall provide Customer with telephone and e-mail support for Customer’s use of the Service during Apxors’ regular business hours. Customer agrees that Apxor is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer Systems.
From time to time, Customer may request and Apxor may agree to provide certain custom development, consulting, training or other professional services as mutually agreed to by the parties (“Professional Services”). The terms and conditions of any such arrangement for Professional Services shall be set forth in a separate statement of work executed by the parties that specifically references this Agreement, each of which shall be governed by the terms of this Agreement. Unless otherwise agreed to by the parties and set forth in the applicable statement of work, all intellectual property, and all rights embodied therein, that are created by Apxor during the performance of Professional Services shall be owned solely and exclusively by Apxor.
As part of the implementation process, Customer shall identify a primary administrative username and password that will be used to set up Customer’s account. Customer may use the administrative username and password to create sub accounts for its employee users (each with unique login IDs and passwords). Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. Apxor reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Apxor immediately upon learning of any unauthorized use of Customer’s account or any other breach of security. From time to time, Apxor’s personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
By registering for the Service, Apxor will provide You with limited access to the Service on a trial basis at no charge for 14 days from the date of Your registration, or such other time period (e.g. under a “Free” or “Trial” plan) as We may establish in our sole discretion (collectively Your “Free Trial”). We reserve the right to modify, cancel and/or limit the Free Trial without notice at any time.
After the Free Trial, You will either have to upgrade to an auto-renewing, paid subscription based on Your usage (a “Paid Plan”) or enter into a separate written agreement with Us for a “Business” plan, as otherwise Your access to the Service may terminate at any time (with or without notice).
Please note that upon the end of Your Free Trial, if You do not purchase a Paid Plan, You may lose access to any data stored on the Service, and the Services that We provide.
By converting to a Paid Plan, You are agreeing to pay in advance the amount due for each subscription period based on Your usage. Each plan allows a maximum number of “Active users” who open Your application at least once in a month. Additionally, each plan comes with a numerical limit of user interactions “Events.” By signing up for a Plan You are responsible for all fees due for the entire subscription period – even if You cancel Your subscription.
You authorize us (or a billing agent acting on Our behalf) to charge You the applicable fees using Your selected payment method. We’ll automatically bill You in advance from the date You convert to a Paid Plan based on Your usage and on each subscription renewal until cancellation. The fees is the net amount that We must receive exclusive of any taxes and, in addition to such fees, You shall be responsible for promptly paying (to us or the appropriate taxing authority) any and all taxes, duties and tariffs, including, without limitation, sales, excise, value added, use, withholding, import/export and similar charges related to this Agreement.
Services of the Site would be available globally. Persons who are “incompetent to contract” within the meaning of the Indian Contract Act, 1872 including minors, un-discharged insolvents etc. are not eligible to use the Site.
Customer shall not directly or indirectly: (i) use the Service or any of Apxor Property or Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (iii) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Apxor Property in any service bureau arrangement or otherwise for the benefit of any third party, (iv) adapt, combine, create derivative works of or otherwise modify any Apxor Property, (v) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of India or any other relevant jurisdiction, (vi) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (vii) bypass any privacy settings or measures Apxor may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (viii) run mail list, any form of auto-responder or “spam” on the Service; or (ix) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.
“Confidential Information” shall mean all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) the Service, Apxor Property and pricing information are Apxors’ Confidential Information and (b) all Customer Data (including any PII) shall be deemed Customer’s Confidential Information for purposes of this Section. Confidential Information expressly excludes any information (other than PII) to the extent that a recipient can demonstrate such information is (a) already known by it prior to receipt for the disclosing party without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by the recipient without reference to or use of any of the disclosing party’s Confidential Information.
Except for the specific rights expressly granted by this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon the disclosing party’s request at any time, the receiving party shall return all of the disclosing party’s tangible Confidential Information permanently erase all Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry.
Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results, Customer Data and Customer Systems. Customer hereby grants Apxor a nonexclusive, royalty-free right and license to access, use, copy, process and store the Customer Data solely for the purpose of providing the Service. Customer agrees that the Service depends on the availability of the Customer Data. Customer will be solely responsible for all Customer Data collected from end users as a result of Customer’s use of the Service including the accuracy and completeness of such information. Unless otherwise set forth in the Contract/statement of work/other documentation between the parties, Apxor shall not have any obligation to store any Customer Data or Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Results, Customer Data and Customer Systems.
Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback shall be solely owned by Apxor (including all intellectual property rights therein and thereto) and shall also be Apxors’ Confidential Information. Customer shall and hereby does make all assignments necessary to achieve such ownership.
To the extent that Apxor includes any Apxor Property in the Results then subject to all terms and conditions of this Agreement, Apxor agrees to grant Customer (without the right to sublicense) a nonexclusive, nontransferable, royalty-free right and license to use such Apxor Property as combined with or embodied in the applicable Results, solely for Customer’s internal business purposes in connection with its use of the Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Apxor (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and the Apxor Properties.
Customer further agrees that Apxor is free to (i) collect, use and create derivative works of data regarding Service usage and performance derived from the Results; (ii) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and (iii) use, copy, modify, create derivative works of, publish and disclose such Aggregated Data in a manner that does not directly or indirectly identify Customer or any individual person. Apxor shall own all right, title and interest to the Aggregated Data and any derivative works thereof. In addition, Apxor shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer).
CUSTOMER REPRESENTS AND WARRANTS THAT IT OWNS ALL RIGHT, TITLE AND INTEREST, OR POSSESSES SUFFICIENT LICENSE RIGHTS, IN AND TO THE CUSTOMER DATA AND PII AS MAY BE NECESSARY TO PERMIT THE USE CONTEMPLATED UNDER THIS AGREEMENT.
APXOR REPRESENTS AND WARRANTS TO CUSTOMER THAT THE SERVICE WILL BE PROVIDED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE DOCUMENTATION. ANY WARRANTY CLAIM UNDER THIS SECTION MUST BE MADE IN WRITING WITHIN THIRTY (30) DAYS AFTER PERFORMANCE OF THE PORTION OF THE SERVICES GIVING RISE TO THE CLAIM. APXOR’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE RIGHT AND REMEDY FOR A BREACH OF SUCH WARRANTY IS FOR APXOR TO CORRECT OR RE-PERFORM THE NONCONFORMING SERVICE.
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, APXOR MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE.
Except as provided below, Apxor agrees to (a) defend Customer against any allegation demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Customer’s authorized use of the Service infringes any Indian patent or copyright or misappropriate any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees, “Loss(es)”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (i) Customer promptly provides Apxor with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Apxor shall have sole control and authority to defend, settle or compromise such Claim. If the Service becomes or, in Apxor’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, Apxor may, at its option (1) obtain for Customer the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Apxor, then it may terminate this Agreement upon written notice to Customer and refund to Customer any unused prepaid Service Fees, pro-rated for the remainder of the prepaid period. Apxor shall have no liability or obligation to Customer hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware, or systems not provided by Apxor, (c) any portion of the Service that implements Customer’s specific requirements, (d) Customer’s continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Customer’s continuing use of any version of the Apxor Properties after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of Apxor, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
Customer agrees to (i) defend Apxor against any Claim by a third party that results from or arises out of (a) any breach by Customer of any of its obligations, (b) any breach by Customer of its representations and warranties set forth in this agreement, or (c) any violation of any third party’s (including any of Customer’s end users) privacy right or PII arising out of Customer’s use of the Service; and (ii) indemnify Apxor for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided, that (i) Apxor promptly provides Customers with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Customer shall have sole control and authority to defend, settle or compromise such Claim.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF OR DAMAGE TO DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL OF THE AMOUNTS PAID TO IT (IN THE CASE OF APXOR) OR THE TOTAL OF THE AMOUNTS PAID AND PAYABLE HEREUNDER (IN THE CASE OF CUSTOMER) DURING THE THEN CURRENT TERM OF THE ORDER FORM GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OR PROPRIETARY RIGHTS OR FOR COST OF DEFENSE OR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
This Agreement shall commence on the Effective Date and continue in effect thereafter until the later of (i) such time as a party provides thirty (30) days prior written notice of termination to the other party if there is no contract/documentation then in effect or (ii) if there is one or more existing contract/documentation then in effect, upon the expiration of the last to expire of such existing contract/documentation.
This term of each Contract shall be the term stated in the Contract (the “Initial Term”). Thereafter, the Contract will be extended automatically for additional terms of one (1) year each (each “Renewal Term”) at the end of the Initial Term and each Renewal Term (the Initial Term and all Renewal Term, collectively, as the “Term”), unless either party gives written notice of non-renewal at least ninety (90) days prior to the end of the then current Term.
A Contract/statement of work may be earlier terminated by either party (a) if the other party materially breaches a material term of this Agreement or Contract and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the other party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, confidentiality, proprietary rights provisions, warranties and disclaimers), indemnification, limitation of liability, and general provisions shall survive. Apxor has no obligation to retain any Customer Data or Results after the Term and will destroy all Customer Data and Results in its possession within ninety (90) days after the end of the Term; provided, upon Customer’s written request received within thirty (30) days after termination, Apxor will deliver to Customer a copy of the Customer Data then currently stored by Apxor (in the same format maintained by Apxor).
Entire Agreement: This Agreement (including the Contract and all Statements of Work) and the License constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
Remedies: Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, which may be available at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section on Confidentiality) or Proprietary Rights or the scope of any license granted hereunder, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Force Majeure: In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Publicity: Apxor shall not use Customer’s trademarks, service marks and logos (“Customer Marks”) in press releases or as a testimonial without obtaining Customer’s prior written approval. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of Apxor’s marketing and promotional efforts.
Notices: Any notice or communication hereunder shall be in writing and either personally delivered or recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
Assignment: Except as expressly provided herein, this Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent. However, without consent, each party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section shall be deemed null and void ab initio. Apxor may use contractors and other third party service providers in performing the Service provided that Apxor shall be liable for the acts and omissions of its subcontractors to the same extent as for its own acts and omissions. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Independent Contractors: The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
This Agreement may be executed in counterparts, which, taken together, will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic means or in writing shall be sufficient to bind the parties to the terms and conditions of this Agreement.
All disputes involving but not limited to rights conferred, compensation, refunds, and other claims will be resolved through a two-step Alternate Dispute Resolution mechanism.
Stage 1: Mediation. In case of a dispute, the matter will first be attempted to be resolved by a sole mediator who is a neutral third party and will be selected at the mutual acceptance of a proposed mediator by both parties. Both parties may raise a name for the sole mediator and in the case both parties accept the proposed name, the said person shall be appointed as sole mediator. In case the parties are not able to reach a consensus within two proposed mediators, the Company reserves the right to decide who the final mediator is. The decision of the mediator is not binding on both parties.
Stage 2: Arbitration. In case that mediation does not yield a result suitable or preferred by any one of the parties, arbitration may follow, the award of which is binding on both parties. The Arbitration Board shall comprise three members – one appointed by each party and the third member to be nominated by the two appointed members by mutual consent. Arbitration shall be held at Hyderabad, India. The proceedings of arbitration shall be in the English language. The arbitrator’s award shall be final and binding on the Parties.
If the dispute cannot be resolved by this two-step Alternate Dispute Resolution mechanism, it shall be referred to the courts at Hyderabad.
© 2018 Apxor Technology Solutions Private Limited.