Last Modified: July 28, 2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCEPTING ELECTRONICALLY, ACCESSING OR USING THE SERVICES, YOU AGREE TO THESE TERMS.
These Terms of Service along with the corresponding Order Form (as defined below in section 1.5) constitute an agreement (this "Agreement") by and between Aplos, a California limited liability company whose principal place of business is 487 W Shaw Ave, Fresno, CA 93704 ("Aplos") and non-profit or other business entity executing this Agreement ("Customer"). Customer's use of and Aplos' provision of Aplos' System (as defined below in Section 1.8) are governed by this Agreement.
"EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON BINDING THE CUSTOMER HAS BEEN AUTHORIZED TO DO SO. THIS AGREEMENT SHALL CONTROL THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNLESS AN INDIVIDUALLY NEGOTIATED SOFTWARE AS A SERVICE AGREEMENT IS AGREED UPON IN WRITING."
1.1. "AUP" means Aplos' acceptable use policy currently posted at https://www.aplos.com/terms/aup.
1.2. "Customer's Clients" means any of Customer's clients, members, donors, or customers or other third parties Customer gives access to the System, including without limitation such companies' agents and employees.
1.3. "Customer Data" means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer's Clients, by other Users, and by Customer's Clients' own customers.
1.4. "Documentation" means Aplos' standard manual related to use of the System.
1.5. "Order Form" means an Order Form or Subscription Page for access to the System, executed as follows: via electronic or regular signature or by processing payment through the Subscription Page.
1.7. "Subscription Page" means the web page that is used to sign up and purchase a subscription to the Aplos system and software.
1.8. "Term" is defined in Section 11.1 below.
1.9. "User" means any company or individual who uses the System on Customer's behalf or through Customer's account or passwords, whether authorized or not or through account created by Customer for the use of another.
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to the terms of any outstanding Order Form, including such features and functions as the Order Form requires.
2.2. Documentation: Customer may reproduce and use the Documentation provided through the online support center solely as necessary to support Users' use of the System.
2.3. System Revisions. Aplos may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
2.4. Accepting Online Payments. 501(c)(3) organizations that sign up to receive online payments through Aplos using WePay will be charged a transaction fee. These fees may vary based on your 501(c)(3) status, payment type, and agreement with Aplos. In general, most organizations that create a WePay account after April 1, 2020 will be charged a transaction fee of $0.30 + 2.9% for payments received from most domestic credit cards. The transaction fee for ACH payments processed through WePay will be $0.30 +1% per transaction. The transaction fee is typically 1.1% higher (but may be even greater) for payments received from American Express credit cards and for international transactions. Transaction fees for organizations that have not verified their status as a qualified 501(c)(3) organization will be 1% higher than the transaction fees listed above.
2.5. Website, Donation Forms, and Event Web Pages. Organizations with an Aplos account may have the ability to publish websites, online donation forms and event web pages. These published web pages are publicly available on the Internet and available for anyone to see, including search engines. Aplos reserves the right to provide a link to published pages. If a user does not wish a website, online donation form or event web page to be distributed, they may disable the website, online donation form or event web page within the software. Aplos does not take any responsibility for the content published on donation webpages and the purpose for which funds are used. Organizations agree to follow all legal limitations and to be independently responsible for content and use of funds. By using Aplos' donation forms, event web pages, and website publisher, Customer agrees to following the restrictions for content and conduct in the AUP.
2.6. Email Services. Aplos offers Email Services and Customer hereby agrees to the Email Terms of Service found here: https://www.aplos.com/terms/emailtos.
Customer shall pay Aplos the fee set forth in each Order Form (the "Subscription Fee") for each Term. Aplos will not be required to refund fees under any circumstances. Customer shall authorize regularly scheduled charges to your checking or savings account or credit card pursuant to the Order Form or Subscription Page. Customer will be charged the amount indicated in the Order Form or Subscription Page for each billing period. Customer agrees that no prior-notification will be provided unless the date or amount changes, in which case Customer will receive notice from Aplos at least ten (10) days prior to the payment being collected. Aplos reserves the right to charge for changes to the Subscription initiated by the customer during the term.
4.1. Use of Customer Data. Unless it receives Customer's prior written consent, Aplos: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System, provide Customer support, and to ascertain which features and products may be useful to Customer based on its usage; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Aplos' other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Aplos may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Aplos shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Aplos offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4. Data Accuracy. Aplos shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.5. Data Deletion. Aplos may permanently erase Customer Data if Customer's account is delinquent, suspended, or terminated for thirty (30) days or more.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Aplos' computers or other media, any data ("Excluded Data"), which upon transmission would violate: HITECH/HIPAA, COPPA, FINRA, CAN-SPAM, California's Online Privacy Protection Act or any U.S. law or regulation that restricts data transmission; or any international privacy provision (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) APLOS HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) APLOS' SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.7. Aggregate & De-Identified Data. Notwithstanding the provisions above of this Article 4, Aplos may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data and De-Identified Data in any way, in its sole discretion. ("Aggregate Data" refers to summaries of Customer Data, or of data that includes Customer Data, that do not include personally identifiable information or the names or addresses of Customer and any of its Users. "De-Identified Data" refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users.)
5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Aplos may suspend Customer's access to the System without advanced notice, in addition to such other remedies as Aplos may have. Neither this Agreement nor the AUP requires that Aplos take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Aplos is free to take any such action it sees fit.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Aplos immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Customer's Users; System Access. Customer is responsible and liable for: (a) Customer's Users' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer's account, whether authorized or unauthorized.
6.1. IP Rights to the System. Aplos retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
6.2. Feedback. Aplos has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Aplos, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Aplos' right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Aplos' products or services.)
"Confidential Information" refers to the following items Aplos discloses to Customer: (a) any document Aplos marks "Confidential"; (b) any information Aplos orally designates as "Confidential" at the time of disclosure, provided Aplos confirms such designation in writing within five (5) business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer's possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer's improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Aplos' valuable trade secrets.
7.1. Nondisclosure. Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Aplos' prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Aplos of any misuse or misappropriation of Confidential Information that comes to Customer's attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Aplos prompt notice of any such legal or governmental demand and reasonably cooperate with Aplos in any effort to seek a protective order or otherwise to contest such required disclosure, at Aplos' expense.
7.2. Injunction. Customer agrees that breach of this Article 7 would cause Aplos irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Aplos will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Aplos will retain all right, title, and interest in and to all Confidential Information.
7.4. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court Order Form.
8.1. From Aplos. Aplos represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Aplos' representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Aplos. In the event of a breach of the warranty in this Section 8.1, Aplos, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Aplos' sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) Aplos HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) Aplos DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) Aplos DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Aplos and the Aplos Associates (as defined below) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer's own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including without limitation by Customer Data; and (d) claims that use of the System through Customer's account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Aplos' negligence. Customer's obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer's expense and payment of judgments. Aplos will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "Aplos Associates" are Aplos' officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10.1. Dollar Cap. APLOS' LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES COLLECTED IN THE PRECEDING 6 (SIX) MONTHS.
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL APLOS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF Aplos IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Aplos' liability will be limited to the maximum extent permissible. For the avoidance of doubt, Aplos' liability limits and other rights set forth in this Article 10 apply likewise to Aplos' affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11.1. Term. The term of this Agreement (the "Term") will commence on the date the Customer executes or submits an Order Form (the "Effective Date") and continue for the period set forth in the Order Form ("Initial Term"). Thereafter, the Term will renew for successive periods of the same length of the Initial Term, unless either party refuses such renewal by written notice thirty (30) or more days prior to the expiration of the then-current term.
11.2. Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
12.2. Notices. Aplos may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com and such notices will be deemed received 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Aplos' express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Arbitration: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. In the event of a dispute under this Agreement, the parties agree to arbitration under the Commercial Rules of the American Arbitration, which shall be held in Fresno, CA. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Aplos or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.