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TOS eSign Agreement


Updated: May 15, 2019

Terms of Service

BEFORE USING APVERA’S SUBSCRIPTION SERVICE (“SUBSCRIPTION SERVICE”), CUSTOMER MUST READ AND AGREE TO THESE END USER TERMS OF SERVICE (THESE “TERMS”). THE SUBSCRIPTION SERVICE IS PROVIDED BY APVERA PTE LTD. (“APVERA”). “CUSTOMER” MEANS THE INDIVIDUAL OR ENTITY IDENTIFIED AS THE CUSTOMER ON AN APPLICABLE APVERA QUOTATION OR ORDER FORM (INCLUDING, IF APPLICABLE, AN ONLINE ORDERING DOCUMENT) (“ORDER FORM”) FOR SERVICE, INCLUDING ITS PERMITTED USERS. THESE TERMS ARE INCORPORATED BY REFERENCE INTO EACH ORDER FORM EXECUTED BY CUSTOMER AND APVERA PURSUANT TO WHICH CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE SUBSCRIPTION SERVICE. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND APVERA (THE “AGREEMENT”). THE AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE ORDER DATE STATED IN THE ORDER FORM, OR, IF IT IS LATER OR IF NONE IS PROVIDED IN THE ORDER FORM, THE DATE ON WHICH USER LOGIN ACCESS IS ISSUED TO CUSTOMER’S USERS.

  1. Scope of Subscription.
    1. Access and Availability. Subject to Customer’s compliance with these Terms, upon Customer’s acceptance of and agreement to the Agreement, Apvera agrees (i) that it will make the Subscription Service available to Customer’s employees, representatives, consultants, contractors and/or agents who have been provided unique user identifications and passwords for the Subscription Service by Customer (the “User”); and (ii) grants Customer a limited, non-exclusive and non-transferable right for its Users to access and use the Subscription Service by the number of Users for which Customer has paid applicable fees, in each case during the Subscription Term and solely for Customer’s internal business purposes (the “Subscription”). Customer assumes full responsibility and liability for its Users’ compliance with these Terms. The Subscription is not dependent on any future functionality, upgrades or features (or any public comments or other disclosure made by or on behalf of Apvera with respect thereto). Subscription Service means the online software services via http://www.apvera.com (or at such other URL as may be designated from time to time), including related application programming interfaces (API), interactive discussion areas, Customer accounts and profiles, service information portals, mobile applications, customer premise equipment, software agents and other related components thereof, on an individual and collective basis. Customer is solely responsible and liable for all of its Users’ acts and omissions related to their access and use of the Subscription Service, including, without limitation, their compliance with these Terms.
    2. Subscription Term. Customer’s initial subscription term (the “Order Term”) for the Subscription Service shall commence on the date the Order Form is placed, or, if it is later or if none is provided in the Order Form, the day User login credentials are issued to Customer to access the Subscription Service under the Order Form (the “Order Date”). The Subscription will continue for the Order Term specified in the Order Form and will automatically renew for additional periods of the same duration as the expiring Order Term (each, a “Renewal Term”) at Apvera’s then-current rates, unless either party gives the other party written notice of termination at least 30 days prior to the end of the Order Term or Renewal Term, as the case may be. The Order Term plus all Renewal Terms are collectively referred to herein as the “Subscription Term”. A “Paid Subscription Term” is the period of time during a Subscription Term that Customer has paid for its Subscription.
    3. Additional Subscription Services. If Customer wants to add additional Subscription Services, Customer can do so through the Subscription Service administrative portal or Apvera quotation, and either (i) Apvera will immediately charge Customer’s credit card for the prorated amount for the current term, or (ii) if Customer does not have a credit card on file, then Apvera will invoice Customer for the additional Subscription Services in accordance with the Agreement.
    4. You may use the Service for a thirty (30) days (the “Trial Period”) as stipulated in the Order Form, starting on the Order Date that you registered with our Service and accepted these Terms of Use without charge or further commitment for evaluation purposes. You need to be aware that the Subscription Service will continue for the Order Term specified in the Order Form and will automatically renew for additional periods of the same duration as the expiring Order Term (each, a “Renewal Term”) at Apvera’s then-current rates, unless either party gives the other party written notice of termination prior to the end of the Trial Period. DURING THE TRIAL PERIOD APVERA WILL HAVE NO OBLIGATION WHATSOEVER TO CONTINUE PROVIDING THE SERVICE TO YOU, AND YOU WILL HAVE NO CLAIM OR REMEDY FOR THE FAILURE OF THE SERVICE. THESE LIMITATIONS ARE IN ADDITION TO THE WARRANTY DISCLAIMERS AND LIABILITY LIMITS IN THESE TERMS OF USE.
    5. Supplemental Terms. Use of, and participation in, certain Subscription Services may be subject to additional terms (the “Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Subscription Service. The Terms and any applicable Supplemental Terms are referred to herein as the “Terms”.
  2. Customer Content, Privacy & Use.
    1. Customer Content; Upload Restrictions. As between Apvera and Customer, Customer will retain all right, title and interest in and to all content, information and other data in any format or media which is uploaded or otherwise provided by Customer, its Users, or its systems in the course of using the Subscription Service (the “Customer Content”); provided, however, that any suggestions, feedback or other ideas related to the improvement of the Subscription Service submitted by Customer to Apvera shall be owned by Apvera upon submission. Customer assumes, and Apvera disclaims, any and all responsibility and liability for the completeness, quality, accuracy, legality and suitability of the Customer Content and for ensuring that Customer has all rights, permissions and licenses in and to the Customer Content necessary for Customer to use and provide it in connection with the Subscription Service. Notwithstanding the foregoing, Customer hereby grants to Apvera a non-exclusive, transferable, worldwide right during the Subscription Term to use the Customer Content solely as reasonably needed to provide Customer the Subscription Service and any associated services. As between Apvera and the Customer, Customer is solely liable for any and all use the Users and any reference to Customer also means its Users. From time to time, Apvera may collect and process technical and related information about Customer’s use of the Subscription Service (which may include, without limitation, number of users, number of unique user logins, Internet protocol address, session duration and other similar data) and certain aggregated, anonymized data about the Subscription Service environment and usage and use such information to support and troubleshoot issues, invoice, analyze trends and improve the Service. Such information is subject to the Privacy Policy https://www.apvera.com/privacy.
    2. Notwithstanding the foregoing, Customer hereby grants to Apvera a non-exclusive, transferable, worldwide right during the Subscription Term to use the Customer Content solely as reasonably needed to provide Customer the Subscription Service and any associated services.
    3. User Compliance & Restrictions. Customer warrants and covenants that its and its Users’ use and activity with respect to the Subscription Service and Customer Content will comply with applicable laws and regulations and with these Terms. Without limiting its obligations under these Terms, in using the Subscription Service Customer shall not, and shall ensure that its Users do not:
      1. tamper with or circumvent the security of the Subscription Service or access accounts or data not associated with Customer;
      2. attempt to probe, scan or test the vulnerability of the Subscription Service, breach the security or authentication measures of the Subscription Service or attempt to render any part of the Subscription Service unusable;
      3. share, distribute, license, sell or otherwise commercially exploit the Subscription Service (including access thereto) for the benefit of a third party or other unauthorized users, or for any benefit not contemplated by these Terms;
      4. use or access the Subscription Service to develop a product or service that is competitive with the Subscription Service or otherwise copy any ideas, features, functions or graphics of the Subscription Service;
      5. reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Subscription Service, or modify or create a derivative work of the Subscription Service or any related documentation;
      6. provide false, incomplete, inaccurate or outdated information on any registration forms, accounts or profiles;
      7. remove or obscure any product identification, proprietary, copyright or other notices contained in the Subscription Service or related documentation; or
      8. disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Subscription Service (including benchmark tests).
    4. Communications. Customer will be responsible and liable for the content of all communications sent to any party using the Subscription Service (including interactive areas such as discussion boards). Customer will not use the Subscription Service to communicate any message or material that (i) is libellous, harmful to minors, abusive, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) could give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law.
    5. Suspension. In the event of any breach or threatened breach of these Terms by Customer or its Users (including non-payment of fees), without limiting Apvera’s other rights and remedies, Apvera may immediately suspend Customer’s access to the Subscription Service until the breach is cured or Apvera reasonably believes there is no longer a threatened breach.
    6. Credentials. Apvera shall provide Customer and each User with a unique username and password to enable Customer to access the Subscription Services pursuant to this Agreement. Customer acknowledges and agrees that only the authorized number of users, if applicable, are entitled to access the Subscription Services with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Apvera promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Apvera reserves the right to terminate any username and password, which Apvera reasonably determines may have been used by an unauthorized third party or an individual other than the Customer to whom such username and password was originally assigned.
    7. Two Factor Authentication. Where available, Apvera will require the Customer to login using Two Factor Authentication using two authentication codes to access the Customer account. The first authentication code is the Customer password, the second is a verification code that is only accessible from a mobile device.  Before enabling 2FA on the Customer Apvera account, the Customer will be required to download a free authenticator application on the mobile device or use SMS in order to verify identity.
  3. Confidentiality.
    1. Scope. “Confidential Information” means all information of a party (“Disclosing Party“) disclosed or made available to the other party (“Receiving Party“) that (i) is clearly marked or identified as such at the time of disclosure or within a reasonable time thereafter; or (ii) should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Apvera’s Confidential Information specifically includes all Subscription Service software code and pricing terms.
    2. Restrictions. The Receiving party will: (i) not use the Disclosing party’s Confidential Information for any purpose other than exercising its rights or performing obligations under these Terms; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
    3. Exceptions. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, to the extent permitted by applicable law, it will first give written notice of such requirement to the Disclosing party, and permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, the obligations in Section 3b will not apply to information which the Receiving party can reasonably document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such Confidential Information.
    4. Equitable Relief. The Receiving party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
  4. Fees; Interest; Taxes. Customer will pay to Apvera all of the fees specified in an Order Form, in U.S. currency via credit card unless otherwise agreed in the Order Form. Apvera will charge Customer’s credit card at the time of purchase, and Customer hereby authorizes Apvera to charge its credit card upon the beginning of each renewal term. Customer shall maintain complete and accurate billing and credit card information on file at Apvera. Subscription fees are fixed for the Subscription Term unless Customer changes its base package or subscribes to additional features or products. Except as expressly set forth to the contrary in these Terms, all payment obligations are non-cancellable, and all amounts paid Apvera are non-refundable. If the parties agree that payment will not be made by credit card, and unless otherwise stated in the Order Form, Customer will pay all fees within 30 days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Apvera. Customer will not withhold any Taxes from any amounts due Apvera. If Apvera pays any such taxes on behalf of Customer, Customer will reimburse Apvera for such payments.
  5. Subscription Service Proprietary Rights. This Agreement is not an agreement for the sale or license of any software or other intellectual property right. Customer acknowledges that the Subscription Service contains copyrighted and proprietary products and materials. Apvera (and Apvera’s licensors, if any) solely and exclusively retain all right, title and interest in and to the Subscription Service and related support, documentation, professional services, deliverables and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto, but excluding Customer Content (collectively, the “Apvera IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in, and Apvera reserves all rights to, the Apvera IP.
  6. Third-Party Tools and Marketing.
    1. Apvera may directly or indirectly provide Customer or Users with access to or the opportunity to integrate with third-party tools, services, or other applications which Apvera neither monitors nor controls (“Third-Party Apps”). Customer acknowledges and agrees that Apvera provides access to or integration with Third-Party Apps as a convenience and Customer is not required to implement Third-Party Apps. Customer acknowledges and agrees that some integrations with Third-Party Apps will allow the transfer of Customer Content to or through the Third-Party App. Apvera provides access to and integration with Third-Party Apps strictly on an ”as-is” and “as-available” basis without any representations, warranties or conditions of any kind and without any endorsement as to the value of functionality of the Third-Party Apps. Third-Party Apps may be subject to their own set of terms and conditions constituting a separate agreement between Customer and the third party only, and Customer is responsible for reviewing and agreeing to any separate agreement. Unless set forth to the contrary in the Order Form, Apvera has no obligation to provide maintenance or support for Third-Party Apps or the integration between the Subscription Service and Third-Party Apps, and Apvera shall have no responsibility or liability whatsoever arising from or relating to your use of Third-Party Apps. The operator or owner of Third-Party Apps may make changes or modifications to Third-Party Apps that affect the integration between the Third-Party App and the Subscription Service, including by reducing, degrading, or eliminating features or functionalities of the Third-Party App. Apvera is not responsible or liable for any loss or damage of any sort incurred as the result of any use of Third-Party Apps.
    2. Customer acknowledges and agrees that in order to provide certain features and functionalities of the Subscription Service to Customer, Customer must allow the Subscription Service communication with or access to Customer’s account(s) with other third party service providers to retrieve, manipulate, process, and modify data (“Process”), and you expressly consent to the Subscription Service’s accessing those accounts to Process that data solely as is necessary to provide the Subscription Service. If the Subscription Service cannot for any reason access your third-party accounts or Process that data, Apvera may not be able to provide Customer those features or functionalities, and Apvera will be excused from any non-performance of Subscription Service. Certain features and functionalities of the Subscription Service require interaction with Customer’s other third-party service providers, for instance, through APIs belonging to those third parties. Customer consents to Apvera interacting with Customer’s other third-party service providers in order to provide Customer requested features and functionality, and Customer acknowledges that Apvera is not responsible or liable for the accuracy, content, appropriateness, or completeness of data or content Apvera receives from those third parties.
  7. Subscription Service Modification.Apvera reserves the right to modify the Subscription Service at its discretion and at any time with or without prior notice.
  8. Termination.
    1. Term and Termination. This Agreement will be effective during the Subscription Term unless earlier terminated as allowed in these Terms. Unless otherwise stated in the Order Form, these Terms may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of these Terms, which breach, if curable, is uncured within 30 days after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2(c)-(d) of these Terms; and (ii) as expressly allowed elsewhere in these Terms.
    2. Effect of Termination.
      1. Procedures. Upon termination of this Agreement for any reason, Customer will immediately cease all use of and access to the Subscription Service and delete or return (at Apvera’s option) all related documentation, passwords and access codes and any other Apvera Confidential Information in its possession. Upon written request by Customer made within 30 days after termination, or otherwise at Apvera’s discretion, Apvera will provide Customer with temporary access to the Subscription Service solely for Customer to retrieve its Customer Content and transition out of the Subscription Service. After such 30-day period, Apvera will, unless legally prohibited and except for archival backup purposes, have the right, but not the obligation, to delete all such Customer data and Customer Content in its possession or control.
      2. Fees. Upon termination of this Agreement for any reason, Customer will pay all fees owed to Apvera that have accrued through the Order Date of termination in accordance with these Terms; provided, however, that if termination arises out of Apvera’ breach of the Agreement under Section 8(a)(i)(A), or breach of warranty under Section 9(b), then Apvera will refund to Customer a prorated amount equal to the pre-paid Subscription fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the Order Date of such early termination.
      3. Survival. Sections 3, 4, 5, 8, 9(e), 10, 11, and 12 of these Terms will survive any termination or expiration of these Terms.
  9. Warranties.
    1. Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms (including these Terms).
    2. Functionality. Apvera warrants that only during any Paid Subscription Term that the Subscription Service will operate in substantial conformity with the then-current version of applicable documentation provided by Apvera for the Subscription Service. As its sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty, Apvera shall use reasonable efforts to correct any error in the operation of the Subscription Service of which Customer notifies Apvera within 30 days after the occurrence of a breach, and, if Apvera determines that it cannot correct such error, then Customer may terminate this Agreement and receive a refund pursuant to Section 8(b)(ii).
    3. Security. Apvera agrees that during any Paid Subscription Term it has and will use commercially reasonable physical, technical and procedural measures to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Apvera.
    4. Exclusions. Notwithstanding anything contained in this Agreement to the contrary, any and all beta versions of, and free subscriptions to, the Subscription Service come without warranty of any kind and are used by Customer solely at its own risk and responsibility. Customer acknowledges that the risks and assumptions undertaken by Apvera pursuant to this Agreement are only in consideration for the payment of subscription fees.
    5. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 9, THE Subscription Service, SUBSCRIPTIONS AND ALL OTHER PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND APVERA, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN THIS SECTION ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. Apvera WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE SUBSCRIPTION SERVICE IS NOT INTENDED TO BE A REPLACEMENT FOR YOUR OTHER INFORMATION TECHNOLOGY NETWORK MONITORING AND ALERTING SYSTEMS, AND CUSTOMER IS SOLELY LIABLE AND RESPONSIBLE FOR MONITORING ITS INFORMATION TECHNOLOGY NETWORK AND INFRASTRUCTURE.
  10. Limitations of Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL APVERA’S TOTAL, CUMULATIVE LIABILITY RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE Subscription Service UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT OR ACT GIVING RISE TO THE LIABILITY. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
  11. Mutual Indemnification.
    1. Apvera Indemnification. Apvera will defend Customer against claims, demands, suits or proceedings made or brought by a third party against a Customer alleging that the Subscription Service as delivered infringes the intellectual property rights of such third party (“Customer Claim”) and Apvera will indemnify the Customer from and against any loss, liability, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) attributable to such Customer Claim. Notwithstanding the foregoing, if Apvera reasonably believes that the Subscription Service or Customer’s use of any portion of the Subscription Service is likely to be enjoined by reason of a Customer Claim or other violation or misappropriation of any third party intellectual property rights, then Apvera may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Subscription Service; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Subscription Service. If, in Apvera’s opinion, (i) and (ii) above are commercially impracticable, Apvera may, in its sole discretion, terminate these Terms and refund Customer a prorated amount equal to the pre-paid Subscription fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the Order Date of such early termination. The foregoing indemnification obligation of Apvera will not apply: (1) if the Subscription Service is modified by any party other than Apvera, but solely to the extent the alleged infringement is caused by such modification; (2) if the Subscription Service is combined with other products, applications, or processes not authorized by Apvera for the Subscription Service, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Subscription Service; (4) to any third party deliverables or components contained within the Subscription Service that are not provided by Apvera; or (5) to the extent the claim is based on infringement by Customer Content. THIS SECTION 11(a) SETS FORTH APVERA’S’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
    2. Customer Indemnification. Customer will defend Apvera against claims, demands, suits or proceedings made or brought by a third party against Apvera based on, arising from, or related to (i) Customer’s communications through the Subscription Service, (ii) results or outcomes arriving from Customer’s use of the Subscription Service, or (iii) Customer Content (as delivered by Customer) (collectively, a “Apvera Claim”) and Customer will indemnify Apvera from and against any Losses attributable to such Apvera Claim.
    3. Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defence of such Claim.
  12. General Provisions.
    1. Relationship of Customer and Apvera. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    2. Modifications and Waiver. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
    3. Assignments. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that either party may assign or transfer these Terms upon a change of control of a party, a sale of all or substantially all assets of that party, or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of these Terms.
    4. Governing Law & Venue. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of Singapore, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Singapore. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.
    5. U.S. Government Use of the Subscription Service. We provide the Subscription Service for U.S. federal government end use solely in accordance with the following: Government technical data and software rights related to the Subscription Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defence transactions, DFAR 252.227-7015 (Technical Data–Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Apvera to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
    6. Anti-Corruption. Each party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employees or agents of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party, in the case of notices to Apvera, to our Legal Department at legal@apvera.com, and in the case of Customer to the main contact address provided by Customer to Apvera.
    7. Export. The Subscription Services, or any feature or part thereof, may not be available for use in all jurisdictions, and Apvera makes no representation that the Subscription Services, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Customer chooses to access and use the Subscription Service, Customer does so at Customer’s own initiative and at Customer’s own risk, and Customer is responsible for complying with any applicable laws, rules, and regulations with respect to such access and use. Customer’s and its Users’ use of the Subscription Services is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of other countries. Customer and its Users will fully comply with all applicable customs and export control laws and regulations of the United States and any other country where Customer or its Users use the Subscription Services. Customer certifies that Customer and its Users are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals, and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer or its Users will not export, re-export, ship, transfer or otherwise use the Subscription Services in any country subject to an embargo or other sanction by the United States, and that Customer or its Users will not use the Subscription Services for any purpose prohibited by U.S. laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer or its Users are prohibited from sending to Customer’s account any data or software that cannot be exported without prior written government authorization, including but not limited to, certain types of encryption software. These assurances and commitments will survive termination of this Agreement.
    8. Notices. All notices and other required communications under this Agreement shall be in writing and shall be sent to a party at the address set forth in the Order Form. Notices shall be given: (a) by personal delivery to the other party; (b) by facsimile or email, with electronic delivery confirmation received; (c) by registered or certified mail, return receipt requested; or (d) by express courier (e.g., DHL, Federal Express, etc.). Notices shall be effective and shall be deemed delivered: (i) if by personal delivery, on the date of the personal delivery; (ii) if by facsimile, on the date stated in the electronic confirmation, delivered during normal business hours (8:00 a.m. to 5:00 p.m. at recipient’s location) and, if not delivered during normal business hours, on the next business day following delivery; (iii) if solely by mail, on the date of receipt as stated on the return receipt; or (iv) if by express courier, on the date signed for or rejected as reflected in the courier’s delivery log.
    9. Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from these Terms, and all other provisions of these Terms will remain in full force and effect.
    10. Publicity. Customer grants Apvera a limited and revocable license and right to use its name and logo on customer lists and related advertising materials in any commercially reasonable manner.
    11. Counterparts/Electronic Signatures. This Agreement may be executed and delivered by email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing Order Forms by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if this Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth herein.
    12. Force Majeure. Neither party to this Agreement shall be considered in breach of such party’s obligations hereunder to the extent that performance or the need for performance is delayed or prevented by an act of God or a public enemy, fire, flood, area-wide strike, freight embargo, unusually severe weather, or similar type of circumstance beyond such party’s reasonable control; provided that the party claiming force majeure shall, within 10 days from the beginning of such event, give written notice to the other party of the fact of the event and its probable effect on performance. A force majeure event shall not be a basis for a claim for the offsetting or discounting of fees due or for free Subscription Service use, and each party shall bear such party’s own costs and expenses associated with or caused by such an event. The party claiming force majeure shall take reasonable measures to mitigate the potential impact of the force majeure event on performance of obligations created by this Agreement.
    13. Subcontrators. Apvera may use the services of subcontractors for the provision of any Subscription Service and performance of any services under this Agreement; provided, however, Apvera will be responsible for each subcontractor’s performance of services hereunder and for each subcontractor’s compliance with the terms and conditions of this Agreement.
    14. Entire Agreement; Precedence; Interpretation. These Terms, together with the Order Form and all schedules, exhibits or other such documents attached hereto or incorporated herein by reference, constitute the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Subscription Service described in the Order Form, and supersedes all prior agreements and discussions with respect thereto (including prior versions of these Terms). Apvera hereby rejects any different or additional terms of a Customer purchase order or other non-Apvera ordering document, and no terms included in any Customer purchase order or other non-Apvera ordering document will apply to the Customer’s Subscription or use of the Subscription Service. In the event of any contradiction, discrepancy, ambiguity, or inconsistency between the aforementioned contract documents, the following order of precedent shall apply: (1) the Order Form; (2) these Terms. The Agreement will be construed as if it were written and negotiated by both parties equally. Headings contained in these Terms are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of these Terms. For purposes hereof, “including” means “including without limitation”.

 Supplemental Service Level Terms of Service

ANY TERM USED HEREIN THAT IS NOT OTHERWISE DEFINED, SHALL BE ASSUMED TO HAVE THE MEANING ASCRIBED IN THE TERMS OF SERVICE LOCATED AT HTTP://WWW.APVERA.COM/TERMS (HEREAFTER “TERMS OF SERVICE”). 

  1. Apvera Insight360™. Apvera Insight360™ refers to a collection of hosted and managed IT Subscription Services housed in an Apvera Data Center and/or at the Customer premises as described below. These Subscription Services include primarily security as a service solutions and accompanying connectivity solutions, server hosting, data backup, desktop and mobile management, software as a service application, and the related IT support to fulfil these Subscription Services. The specific quantity and combination of services will be detailed on one or more Order Form documents that may be executed between Apvera and the Customer from time to time. Apvera, unless otherwise agreed will perform regular Quarterly Security Reviews to align the Customer business goals with the technology roadmap and ensure accountability and continued success. The Quarterly Security Review will focus on the following areas. 1. Service Level Performance and Metrics 2. Technology and Security Adoption Roadmap 3. Status & Technology Advancements 4. IT and Security Risk Posture.
  2. Apvera Insight360™ Pentest. Apvera shall perform the security external Penetration Testing Services for the Customer using reasonable skill and care and in a professional, timely manner. A subsequent lighter test will be performed within three (3) months of the penetration test as a means to ensure that proper remediation steps have been performed for those exceptions identified in the penetration test. Where a Report is required it shall, unless otherwise agreed, be produced by Apvera within thirty (30) working days or as agreed with the Customer on completion of the penetration test and sent to the Customer. Apvera will arrange a mutually convenient time with the Customer for the performance of the penetration test in accordance with the Customer approved maintenance windows if applicable. The Customer will ensure at least one employee shall act as liaison between the Customer and Apvera and shall respond promptly to queries and requests for information.
    1. IP Addresses. The customer will provide to Apvera the list of IP addresses in accordance with the Subscriptions Service as defined in the Order Form and domain details, external servers, and network topology as deemed necessary.
    2. ISP Consent. The Customer will obtain appropriate consent from its Internet Service Provider, only where the Internet Service Provider is hosting services on behalf of the Customer and any other relevant third party supplier of the systems, only where the third party supplier is hosting services on behalf of the Customer for the penetration test to be carried out and, when requested by Apvera, to provide evidence of such consent and to notify relevant employees that the penetration test has been scheduled and that they may be monitored.
    3. Customer Consent. By signing the Order Form, the Customer consents, for itself and on behalf of all group companies, to Apvera performing the penetration tests and that it has procured, where necessary, the consent of all its (and its group companies) employees, agents and sub-contractors that the Apvera shall be permitted to carry out the penetration test. Apvera will be carrying out the penetration test in the belief that it has all appropriate consents, permits and permissions from the Customer and its group companies (and their employees, agent and sub-contractors).
    4. Best Practices. Apvera will conduct the penetration test in line with acceptable Penetration Testing best practice and make all reasonable efforts to avoid disruption to the Customer’s network; (the tools and techniques used may cause disruption to the Customer’s systems and/or possible loss of or corruption to data) so the Customer agrees to take such backups and provide such redundant systems as are prudent in the circumstances. The Apvera will notify the Customer in the event that activity would lead to loss of service or data before proceeding where this is known to the Apvera.
    5. Notifications. Customer will notify Apvera immediately if there are any periods during penetration test when the Apvera should stop work due to critical business processes (such as batch runs) or if any part of the system is business critical so that the Apvera can, if need be and with the Customer’s consent, modify its testing approach.
  3. Apvera Insight360™ Phishing. Apvera will perform the Phishing Simulation Service for the Customer using reasonable skill and care and in a professional, timely manner. The Simulation will consist of three (3) separate simulated email campaigns performed over a thirty (30) day period or otherwise as mutually agreed. Where a report is required it shall, unless otherwise agreed, be produced by Apvera within thirty (30) working days or as agreed with the Customer on completion of the Phishing Simulation Service and sent to the Customer. Apvera will arrange a mutually convenient time with the Customer for the performance of the Simulation in accordance with Customer approved maintenance windows if applicable. The Customer will ensure at least one employee shall act as liaison between the Customer and Apvera and shall respond promptly to queries and requests for information.
    1. Use. The Phishing Simulation Services will be used for lawful purposes only and in accordance with all applicable laws and having ensured that the Customer has all necessary consents, authorisations or permissions.
    2. Consent. By signing the Order Form, the Customer consents, for itself and on behalf of all group companies, to Apvera performing the Simulation.
    3. Email Addresses. Provide only the work email addresses of Customer’s own employees for the Phishing Simulation Service as defined in the Order Form as part of the Subscription Service and to ensure that all email addresses are accurate.
    4. Whitelisting. The Customer must take action to authorize the Customer mail servers to receive Email to Customer personnel. This may require “white-listing” by IP address, and or domain creating exceptions in Email filtering gateways, or bypassing other protection or inspection mechanisms that may block suspicious, malicious or suspect Email. The IP addresses and or domain of the Simulation are available upon request.
  4. Apvera Insight360™ Beacon. Includes an on-premise threat intelligence hardware appliance at the Customer facility as well as the maintenance, event monitoring and response to security and device events identified on the Customer network. The threat intelligence hardware appliance will be setup and maintenance will be performed by a competent, certified professional. The Customer acknowledges that a threat intelligence hardware appliance is no guarantee against network intrusion. Apvera does monitor the Customer threat intelligence hardware appliance for uptime and availability in addition to monitoring and alerting the Customer for active anomalous or intrusion activities of malicious intent. Should the Customer experience a security event, Apvera will work with the Customer to provide access to events and other information that may aid in determining the scope of the issue and preventing future issues. The threat intelligence hardware appliance is subject to the Service Hardware provisions of this Term of Service and includes Apvera Insight360™ Prevent.
    1. Policies. The threat intelligence hardware appliance is pre-configured to collect and assess risky activity, suspicious traffic, and advanced threats providing the Customer insights into the security posture. The Customer is required to assess the data and levels of acceptable risk. The Customer must provide a Service Request in order to implement additional or suppress policies as required.
    2. IP Address. The Customer must provide Apvera with a private management IP address accessible and routable to the monitored network segment. In the event that the threat intelligence hardware appliance is not located within the same Layer 2 network, the Customer must provide the read only Simple Network Monitoring Protocol public string of the upstream gateway or switch of the monitored segment.
    3. Ports. The Customer must ensure that the threat intelligence hardware appliance management IP address has outbound unrestricted access to *.apvera.com and TCP ports 80, 443, 4050, 4051, 4150 and 4151.
    4. Provisioning. At all times must the Customer co-operate with Apvera and provide Apvera promptly with such information about the systems, network devices, premises, equipment, data structures, protocols, software, network topology, hardware and firmware as is reasonably required by Apvera to effectively implement and manage the Subscription Service.
    5. Reporting. A Risk Assessment Profile report will be produced by Apvera within thirty (30) working days or as agreed with the Customer on provisioning of the Subscription Service and sent to the Customer. Apvera will arrange a mutually convenient time with the Customer for the review of the report. Subsequent periodic reports will be made available as part of the Quarterly Security Review.
  5. Apvera Insight360™ Fringe. Includes an on-premise managed firewall hardware appliance at the Customer facility as well as the maintenance, log monitoring and response to security and device events within the appliance. All firewall setup and maintenance will be performed by a competent, certified professional. The Customer acknowledges that a firewall is no guarantee against network intrusion. While Apvera does monitor the Customer firewall for uptime and availability, Apvera does not monitor or alert the Customer for active intrusion activity by malicious third parties. Should the Customer experience a security event, Apvera will work with the Customer to provide access to log files and other information that may aid in determining the scope of the issue and preventing future issues. The on-premise firewall solutions are subject to the Service Hardware provisions of this Term of Service and includes Apvera Insight360™ Prevent. Broadband connectivity and VPN’s into the Data Center include the protection and management of the Apvera Cloud firewall solution at the Data Center.
    1. Rules. Apvera will pre-configure a rule set that trusts all internal traffic, but blocks all externally initiated traffic. This policy assumes that the most significant threats will come from outside the Customer network and that the emphasis of the rules will be keeping outsiders from getting in. This type of stance is implemented by defining a firewall rule set that permits all connections, which are initiated from the inside, but blocks connections initiated from the outside. If any customized rules are required, the Customer must predefine all rules for their network or communicate any new rules through an Apvera Service Request, before any changes will be initiated.
    2. Provisioning. At all times must the Customer co-operate with Apvera and provide Apvera promptly with such information about the systems, network devices, premises, equipment, data structures, protocols, software, network topology, hardware and firmware as is reasonably required by Apvera to effectively implement and manage the Subscription Service.
    3. Site-to-Site VPN. Is a secure, encrypted connection from an Apvera Cloud Data Center to a static location of the Customer choice. The Customer must provide a firewall or router capable of site-to-site VPN at the speed the Customer is requesting from Apvera along with suitable bandwidth from the Customer local carrier and a static IP address. The service includes the labour to properly configure the firewall or router on both ends to create the secure, encrypted tunnel. Once established, Apvera will monitor the VPN tunnel for availability, congestion and signal quality and work with the Customer to resolve any issues should they arise. Once established, the Customer is responsible for controlling who has access to the tunnel from the Customer local area network. Apvera does not monitor or filter the devices or users from the Customer network that have access to the VPN tunnel but may do so upon request.
    4. End User OpenVPN / IPSEC VPN. End user VPN is an app-based software solution that is licensed on a named user basis. Users may access the VPN by running a local app on their PC or mobile device. This service includes the VPN client and 5 mbps synchronous bandwidth per user. Should the user experience a problem connecting to the VPN, Apvera will provide basic remote support to help the user establish a successful connection.
    5. Reporting. Ad-hoc reports will be produced by Apvera highlighting any performance or security exceptions and sent to the Customer. Apvera will arrange a mutually convenient time with the Customer for the review of the report. Subsequent periodic reports will be made available as part of the Quarterly Security Review as required and relevant.
  6. Apvera Insight360™ Hawkeye. Intentionally left blank.
  7. Apvera Insight360™ Copilot. Intentionally left blank.
  8. Apvera Insight360™ Switch & WiFi. Includes on-premise managed switch and wifi hardware at the Customer facility and the creation of trusted and untrusted segments of the Customer local area network. Apvera works with the Customer to identify trusted devices (based upon their MAC address) and then configures the Apvera cloud-managed RADIUS server to handle their authentication into the trusted network. The Customer will notify Apvera via an Apvera Service Request to add or remove devices from the trusted list and Apvera will update the RADIUS server to manage the list. The customer understands that this “trusted” network status is based upon the unique MAC address assigned by the manufacturer of each device and while unlikely, it is possible for someone to impersonate a MAC address to gain entry to the Customer network. Apvera provides no guarantee for the detection or prevention of such malicious activity. The on-premise switches and Wi-Fi solutions are subject to the Service Hardware provisions of this Term of Service and includes Apvera Insight360™ Prevent.
  9. Apvera Insight360™ Server. Server is the name for Apvera’s dedicated virtual server solution. Servers are available in varying speeds and capacities as detailed in the Order Form. Server includes the bandwidth required to communicate locally within the Data Center with the Customers other services, on-premise or in the cloud, and includes Internet Bandwidth for connectivity outside of the Data Center. If the Customer requires direct remote connectivity to the Customer Server via a virtual private network (VPN) or remote desktop services to the Customer Server, the Customer will need to purchase the appropriate Apvera Insight360™ Fringe service. Apvera support is limited to ensuring that the server operating system is running and accessible. Server does not include support for the Customer end users or for Apvera time to assist the Customer with the Customer line of business applications. Additional support services are available through Apvera Insight360™ Care services or on a time and material basis. Each Apvera Insight360™ Server includes Apvera Insight360™ Prevent.
  10. Apvera Insight360™ Backup. Apvera Insight360™ Backup is the name for Apvera’s data backup service offerings. All Backup solutions maintain multiple, geographically diverse copies of the data at all times including historical versioning based upon the details of the Order Form. All data is stored in secure facilities that meet the privacy and data security requirements of regulations such as Health Insurance Portability and Accountability Act, the Sarbanes–Oxley Act, The Payment Card Industry Data Security Standard, and The Gramm–Leach–Bliley Act.
    1. Data Safe Backup. Data Safe Backup as it relates to Apvera Insight360™ Backup within this Service Level Agreement is a cloud- based offsite data backup solution. Apvera maintains multiple copies of all data housed in the Apvera Server and Storage solutions in multiple, secure locations within Apvera’s Object Storage Area Network (OSAN). Data is recoverable based upon a rolling schedule of hourly differential backups. Recovery Time Objective (RTO) is the maximum elapsed time required to complete the recovery of customer’s data. RTO is a function of the size of the data delivery circuit and the total amount data to be recovered. In most cases where the total data recovered is less than 1 terabyte this could be 6, 12 or 24 hours if the restore point is properly functioning and ready to receive data.
    2. Successfully Backed up Data. Apvera can only provide data recovery guarantee on data that has been backed up between the customer’s server and the Apvera Insight360™ Backup service without error or corruption. Upon each backup operation the Apvera backup software will set a flag that clearly indicates that a successful backup has occurred. Data backup success will also be reported on a daily basis. In the event of a backup failure the Customer may schedule or contact Apvera to arrange for a subsequent backup.
    3. Data Restoration Initiation. Customers will be able to restore data by logging a Service Request with Apvera. A data restore will begin within four hours from the point that the data is requested.
  11. Incident Response. Apvera will respond to the Customer technical support needs and requests during Regular Business Hours. Response times are based upon the time the Customer logs a Service Request and the nature of the Customer support needs. Apvera response will adhere to the following general response guidelines.
    1. Point of Contact: Customer agrees for the duration of the Service Request to provide Apvera with prompt access to at least one employee who shall have detailed knowledge of the nature of the request to act as liaison between the Customer and Apvera.
    2. On-Site. When remote support is not sufficient to resolve the issue, Apvera will also provide On-site Support at the Customer primary business address (excluding residences) for the device running the Apvera management agent. Support outside of Regular Business Hours or at a location other than the Customer primary business address will be billed to the Customer based upon Apvera’s prevailing time and material rates.
    3. Logging. Service Requests must be logged via Apvera’s online web portal at http://unity.apvera.com/. Requests placed verbally to a technician, through e-mail or other means will be processed on a best effort basis. Upon receipt of a Service Request, Apvera shall contact where necessary the Customer to log or troubleshoot the incident in accordance with the timescales set out within.

 

Severity

Initial response time

Review of initial incident information

 

1

Within 1 hour

Within 4 hours

 

2

Within 2 hours

Within 8 hours

 

3

Within 4 hours

Within 24 hours

                       Severity 1 = A problem that affects the entire company or a group of users.

                       Severity 2 = A problem with no known workaround that affects a single user.

                       Severity 3 = A general service request or problem with a workaround solution.

  1. Apvera Insight360™ Care. Apvera Insight360™ Care is an optional add-on IT support service that provides tiered support to Customer end users or employees and may be the sole or an extension and/or augmentation of the Customer existing technical support resources. Support is provided by Apvera in a multi-tiered, team hierarchy as defined in the Incident Response.
    1. Scope. Apvera Insight360™ Care is a flat fee or hourly metered service confined to routine technical support, repair, patching and maintenance activities within Regular Business Hours. Routine support for end users includes items such as: helping users connect to mobile or desktop system accounts; answering basic “how to” questions for common Microsoft Windows applications; helping users connect their mobile or desktop systems with peripherals devices such as keyboards, mice, printers, scanners and cameras (additional software, drivers or devices may be needed); and resolving application performance issues within the end user mobile or desktops systems. Apvera reserves the right to restrict the scope for end user support as needed to prevent abuse. While Apvera will do support Line of Business Software in the sense of making sure it can run in the Customer office environment, Apvera Insight360™ Care does not include end user support for questions related to the use of the Customer specific custom Line of Business Software. Apvera Insight360™ Care also does not include Projects. Projects are defined as tasks taking more than 5 hours to accomplish.
    2. Limitations: For each named user, Apvera Insight360™ Care includes support for one local device as well as optionally upon request a mobile device management (MDM) app for all of the named users’ Android or iOS mobile devices. Apvera Insight360™ Care on laptop and desktop computers is limited to devices running Apvera’s monitoring agent. To receive Apvera Insight360™ Care, the device must be less than 60 months old with an operating system still under support by the manufacturer and have a current and licensed antivirus and anti-spyware solution. To receive Apvera Insight360™ Care on mobile devices, the device must be running Apvera’s MDM app. Apvera Insight360™ Care support on a user’s non- managed devices is limited to basic connectivity troubleshooting and does not include the remediation of issues (i.e. virus infections, OS issues, etc.) on any unmanaged devices.
    3. Activities: Support provided as needed during Regular Business Hours for routine support, maintenance and upgrade tasks and 24×7 as needed for emergency support services. Routine support for these services outside of Regular Business Hours (inclusive of after-hours patching and upgrades to the Customer Line of Business Software) will be billed based upon Apvera’s prevailing time and material rates. Apvera will automatically begin remediation for emergency services when alerts are generated through one of the Apvera monitoring or agent platforms or Apvera is properly notified by the Customer of an issue.
  2. Apvera Insight360™ Prevent. Apvera Insight360™ Prevent is an IT support service that provides basic IT support on a named user or named device basis and monitoring 24×7 by the Apvera network & security operations centre. Apvera Insight360™ Prevent includes a preventative maintenance and Simple Network Management Protocol or Agent telemetric monitoring for one local Windows, Macintosh or Linux device or Network device as well where applicable antivirus software, antispyware, SPAM filtering, and operating system patches for that same device. Apvera Insight360™ Prevent includes Apvera’s labour to install and maintain these services as well as the time to mitigate any performance issues or virus or spyware infections for those covered devices. In order to receive mitigation services, the Customer must have a current backup of the device. Apvera Insight360™ Prevent provides no guarantee against potential hardware or software issues with the Customer device. Apvera Insight360™ Prevent does not include any other supported service. Should the Apvera monitoring detect a hardware, security or other performance issue, Apvera will alert the Customer so that the Customer can decide upon the appropriate remedial action. Support is provided by Apvera in a multi-tiered, team hierarchy as defined in the Incident Response.
  3. Internet Bandwidth. Internet Bandwidth provides connectivity for Apvera Cloud Server and Storage solutions to communicate with the public Internet. This is bandwidth at the Data Center only and does not provide bandwidth to or from the Customer offices, facilities or residences. Common uses for Internet Bandwidth are to provide outbound connectivity for applications and users running on the Customer Servers or to provide inbound connectivity for items such as websites, remote desktop sessions, etc.
  4. Line of Business Software. Line of Business Software is defined as the specific applications that the Customer uses in the normal operation of the Customer business that are installed or active on the Customer Server or end user solutions and are in addition to the applications Apvera provides. Common examples of this include software for accounting, inventory management, point of sale, practice management, customer relationship management, warehousing, manufacturing, distribution, electronic medical records, etc. To the extent that the Customer desires to use the Customer Line of Business software in conjunction with the Subscription Service, the Customer agrees to provide Apvera with proof of ownership for valid licenses and copies of license keys and codes, inclusive of the expiration dates for any subscription services. Apvera will confirm the compatibility of the Customer applications with Subscription Service and notify the Customer of any potential issues. To be eligible for Line of Business Software support under Apvera Insight360™ Care, the Customer must maintain an ongoing support and maintenance agreement with the software vendor that would allow Apvera to open support tickets with the software vendor on the Customer behalf. Ultimate responsibility for the application’s compatibility with the Subscription Services and compliance with the licensing requirements of the Customer Line of Business Software rests solely with the Customer and the Customer agrees to indemnify Apvera from any potential licensing infringements created by the Customer hosting of the application in the Apvera system.
  5. Software-as-a-Service. Software-as-a-Service (SaaS) is a broad term used to describe software applications that Apvera provides to the Customer for a monthly service fee. Some software applications are licensed on a named user basis and others are available on a concurrent user basis as detailed within the Order Form. These SaaS solutions are not the property of Apvera nor do Apvera passes title on to the Customer through this SaaS program. Should the Customer discontinue the Customer use of Apvera Cloud or the Apvera SaaS program, the Customer will lose the right to use these applications. By using SaaS, the Customer agrees to be bound by the software use and licensing requirements of each individual application and agree that the Customer does not have the right to resell, reproduce, disassemble, or alter the SaaS applications in any way.
  6. Site Liaison. The Customer agrees to assign one employee to be the primary contact person to Apvera to handle basic onsite tasks including: 1) training users when and how to contact Apvera for technical support, 2) onsite helping hands to assist with troubleshooting, and 3) other miscellaneous functions related to helping the Customer improve the Customer efficiency concerning computer systems. This role is not expected to consume more than an average of a few minutes each day.
  7. Data Center. Data Center refers to the one or more hosting facilities used by Apvera to provide the Subscription Service.
  8. Availability. Apvera warrants that the Customer Apvera Cloud services will be available 99.9% of the time in a given month; excluding Maintenance. Upon experiencing downtime, the Customer shall be eligible to receive a Service Outage Credit equal to five percent (5%) of the monthly recurring fee (MRC) for each thirty (30) minutes of downtime (up to a maximum of 100% of the MRCs for the affected Service). Uptime includes the functioning of all data center infrastructure including routers, switches, servers, storage arrays and cabling, as well as power and HVAC, but does not include services or software running on the Customer Server or end user systems. Downtime exists when the Customer is unable to transmit or receive data due to failures at the Data Center, and Apvera records such failure in the Service Request system based on the Customer opening a Service Request. Failures due to the Customer Internet bandwidth or the Customer on premise equipment do not constitute downtime. Downtime is measured from the time the Customer opens the Service Request until the time the Customer is once again able to transmit and receive data.
  9. Public Cloud vs Private Cloud. Unless specifically stated otherwise, Apvera Cloud solutions operate in a shared, multi-tenant, public cloud model within the Data Center. Public Cloud means that multiple tenants operate on the same physical infrastructure but in completely isolated virtual instances where their privacy is maintained at all times. Private Cloud means that the solution is delivered on dedicated hardware within the Data Center where the Customer is the only tenant. Private Cloud solutions will be specifically identified as such on the Order Form. Hybrid Cloud is a combination of Public Cloud, Private Cloud and/or the Customer on premise data networking components to create an integrated network environment.
  10. Service Hardware. Title to and/or ownership of any Service Hardware provided to the Customer by Apvera under the Subscription Service shall remain with Apvera. Customer agrees not to tamper with, modify, reverse engineer, de-compile, disassemble, translate, modify, make error corrections, or otherwise alter any Service Hardware provided to the Customer under the Subscription Service, nor permit third parties not authorized by Apvera.
    1. Returns. All Service Hardware provided in conjunction with the Subscription Service must be returned to Apvera upon termination of the Subscription Services for any reason. The Customer must contact Apvera within thirty (30) days of such termination (unless contacted earlier by Apvera) to schedule pickup of Service Hardware, or the Customer shall be deemed to have purchased such Service Hardware and shall be invoiced for the replacement cost of such Service Hardware. Risk of loss of Service Hardware or damage to any Service Hardware, provided to the Customer as an integral part of the Subscription Services is assumed by the Customer, except when such damage is caused solely by Apvera in the installation or maintenance of such Service Hardware. Apvera retains title and all rights to such Service Hardware.
    2. Continuity. Apvera warrants the functioning of all Service Hardware components and will replace any failed component with like or better equipment at no cost to the Customer. Hardware replacement will begin once Apvera identifies the cause of the problem. Apvera will use commercially reasonable efforts to effectuate any needed hardware replacement within one business day of problem identification.
    3. Credits. In the event it takes Apvera more than one business day to replace faulty hardware, the Customer shall be eligible to request a Service Outage Credit equal to five percent (5%) of the MRC per additional day of downtime (up to a maximum of 100% of the MRCs for the affected Service). Service Hardware is defined as the on-premise components provided exclusively to the Customer as a “leased” or “managed” hardware solution such as firewalls, switches, routers, wireless access points, desktops and security appliances and other related hardware included under the lease. This warranty excludes the time required to reload operating systems and restore data and applications.
  11. Maintenance. Maintenance shall consist of both Scheduled Maintenance and Emergency Maintenance tasks that must be undertaken from time to time. Scheduled Maintenance means any maintenance in the Data Center of which the Customer is notified at least 5 days in advance. As a standing notice, Scheduled Maintenance may occur weekly from 5AM-9AM local standard time Sunday mornings, and daily from 12AM-2AM local standard time. Apvera reserves the right to schedule additional maintenance windows as needed. Emergency Maintenance means any maintenance in a Data Center that: i) in Apvera’s sole discretion is necessary to avoid an immediate threat to the Data Center or a Customer Service; and ii) of which the Customer is notified.
  12. Demarcation. Subscription Service are delivered over a broadband Internet connection. Apvera accepts no responsibility for the Customer LAN, PCs, broadband connection, desktop, applications not hosted or managed by Apvera, or any other items beyond the Service provided.
  13. Excluded Services. Unless specifically included, service rendered under this Agreement does not include: 1) The cost of any software, licensing, or software renewal or upgrade fees of any kind. 2) The cost of any 3rd party vendor or manufacturer support or incident fees of any kind. 3) The cost to bring the Customer environment up to minimum standards required for this service unless specifically listed on the Order Form. 4) Service and repair made necessary by the alteration or modification of equipment other than that authorized by Apvera, including alterations, software installations or modifications of equipment made by the Customer employees or anyone other than Apvera. 5) Programming (modification of software code) and program (software) maintenance unless as specified previously agreed. 6) Training services of any kind. 7) This service does not include replacement of, or parts required for repairs on printers, screens or peripherals, (PDA’s, Point of Sale Scanners, Digital Cameras, Smart Phones nor any other specialized accessory). 8) Consumables such as printer maintenance kits, toner, ink, batteries, paper, etc. are not included or covered under this Term of Service.
  14. Hardware. The Customer is responsible for the purchase of any on-premise hardware, software or labour not specifically detailed on the Order Form. This includes repair parts and 3rd party manufacturer’s warranties. Apvera shall in no manner be responsible for the expense of hardware repair, unless it is specifically covered under a separate agreement, or if is Service Hardware from Apvera. Any equipment (software or hardware) owned by the Customer prior to the execution of this Agreement shall remain the Customer property. Apvera shall not have a legal or other interest in said equipment unless such equipment was purchased or leased from Apvera and Apvera has an unperfected security interest in that equipment.
  15. Regular Business Hours. Regular Business Hours are Monday – Friday, 9:00 am – 6:00 pm local standard time. Apvera reserves the right to declare usual and customary holidays each year. Should the Customer request service on or during a holiday period outside of the scope of the support included with the Customer service, Apvera shall respond on a best efforts basis at its usual time and material rates plus the applicable holiday surcharge. On call technicians are available and typically respond within 60 minutes. Additional service fees may apply for Service Requests outside of Regular Business Hours.
  16. Changes to this Service Level Agreement.Apvera may change this Service Level Agreement at any time if Apvera give the Customer notice of the proposed modification. The Customer may object to the proposed modification by giving Apvera written notice thereof within thirty (30) days of the date the Customer was first notified of the change. Any objection to a proposed modification must be submitted pursuant to the notice provision set forth in the Terms of Service. Should Apvera disregard the Customer objection and enact the proposed modification, the Customer may terminate the affected Services by giving Apvera thirty (30) days prior notice in which case the Customer will not be subject to an early termination fee. The Customer will, however, still be responsible for all charges for Services provided before the effective date of the Customer termination.

I hereby acknowledge that I have read, understand and agree to the Terms of Services of this document.

Order Form Number: {{order_id}}
Effective Order Date: {{order_create_date}}

Company Name: {{billing_company}}
Billing Address: {{billing_address_1}}
Billing City: {{billing_city}}
Billing Country: {{billing_country}}

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Signature Certificate
Document name: TOS eSign Agreement
Unique Document ID: 1b55c28f44b830411067c515269ba2d7d3932cd4
Timestamp Audit
June 11, 2019 7:27 pm +08TOS eSign Agreement Uploaded by Apvera Unity - unity@apvera.com IP 223.25.67.226