Apollo Analytics Management System Service Agreement

This Service Agreement (“Service Agreement”) is a part of the Service Order (the “Service Order” and referred to collectively with the Service Agreement as the “Agreement”) between Search Discovery, Inc. (“SDI”) and the Subscriber named on the Service Order (“Subscriber” or “You”) for use of the Apollo software and services described herein (the “Software”). The Service is offered to the Subscriber conditioned on acceptance without modification of the terms, conditions, and notices contained herein.

1. DEFINITIONS

Organization” refers to an Apollo organization account. An Organization may contain one or more Properties and each Organization may contain separate configurations for each such Property.

“Aggregated Data” means data and information related to the use of the Service by Subscriber or any Authorized User that is used by SDI in an aggregate and anonymized manner such that neither Subscriber nor any Authorized User is identifiable or discernable as the source or basis of such data or information, including to compile statistical and performance information related to the provision and operation of the Service.  

Authorized User” means Subscriber’s employees, consultants, contractors, and agents who are authorized by Subscriber to access and use the Service under the rights granted to Subscriber pursuant to this Agreement. 

Beta Feature” means any Service feature that is expressly identified as “Beta” or “Labs” or that is otherwise expressly identified as being for beta testing purposes or unsupported.  Notwithstanding anything to the contrary in this Agreement, SDI will have no liability (including in respect of indemnification obligations or SLA obligations) under this Agreement arising out of or related to any Beta Features.  

Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances whether or not such information is marked, designated or otherwise identified as “confidential”.  Confidential Information does not include information that the Receiving Party can demonstrate by documentation was (i) already rightfully known to the receiving party without restriction on use or disclosure prior to the receipt of such information directly or indirectly from or on behalf of the disclosing party or received by the receiving party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, (ii) was or becomes generally known to the public other than by the receiving party’s or any of its affiliate’s or their respective representatives’ noncompliance with this Agreement; or (iii) independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information.

Documentation” means any accompanying proprietary documentation or content made available to You by SDI for use with the Service, including any documentation available online or otherwise.

Effective Date” means the date SDI signs this Agreement or the relevant Service Order.

Personally Identifiable Information” is information that personally identifies an individual, such as a name, email address or billing information, or other data which can be reasonably linked to such information by SDI.

Privacy Policy” means the privacy policy or other terms at https://www.apolloplatform.com/privacy-policy/ or other such URL as may be provided by SDI.

Property”means each collection of business requirements, website or app events and attributes, and data destination variables. Each individual property can be deployed on any number of sites and apps depending on your needs. 

Service” means the Software and Documentation.

“Service Order” means the service order executed between SDI or a certified reseller and the Subscriber.

“SDI IP” means the Service, the Documentation and any and all and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by SDI in connection with the Service or otherwise comprise or relate to any services provided to Subscriber by SDI hereunder. For the avoidance of doubt, SDI IP includes Aggregated Data and any information, data, or other content derived from SDI’s monitoring of Subscriber’s access to or use of the Service, but does not include Subscriber Data.

SDI Systems” means the information technology infrastructure used by or on behalf of SDI in providing the Service, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by SDI or through the use of third-party services

“SLA” means the Service Level Agreement set forth at Exhibit A. 

Subscriber Data” means, other than Aggregated Data, the information, data, and other content, that is submitted, posted, or otherwise transmitted by or on behalf of Subscriber through the Service.

Third-Party Materials” means any materials or information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Service that are not proprietary to SDI.

Reports” means information provided regarding the use and performance of the system within the Software.

2. PROVISION OF ACCESS

Subject to and conditioned on Subscriber’s payment of all fees set forth in the Service Order (“Fees”) and compliance with all other terms and conditions of the Agreement, SDI hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 22) right to access and use the Service during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal use.

3. MEMBER ACCOUNT, PASSWORD, AND SECURITY

SDI shall provide to Subscriber the necessary passwords and network links or connections to allow Subscriber and Authorized Users to access the Service.  You shall protect your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account whether such access or use is permitted by or in violation of the Agreement.. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber. Subscriber shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service, and shall cause Authorized Users to comply with such provisions. You agree to notify SDI immediately upon learning of any unauthorized use of Your Account or any other breach of security.

4. ACCESS TO THE SERVICE

  1. Authorization and Restrictions of Use.  and Your use of and access to the Service (which may include, without limitation, the Software, Documentation, Third-Party Materials and the Reports) is subject to and conditioned upon Your compliance with the terms and conditions of the Agreement. Unless otherwise permitted by SDI, You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Service, Software, Documentation, including any library of business requirements, or Third-Party Materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service, Software or Third-Party Materials; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Service, Software, Documentation or Third-Party Materials; (iv) remove any proprietary notices or labels on the Service, Software, Documentation or Third-Party Materials; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Service, Software, or Third-Party Materials; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the SDI Systems, or SDI’s provision of services to any third party, in whole or in part; or (vii) use the Service, Software, Documentation or Third-Party Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person. You will comply with all applicable laws and regulations in Your use of and access to the Service, Software, Documentation, Third-Party Materials, and Reports.  Your license to use the Service (including the Software, Documentation, Third-Party Materials and the Reports) will terminate automatically and immediately if You fail to comply with the terms of this Agreement.  
  2. Reservation of Rights.  SDI reserves all rights not expressly granted to Subscriber in the Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or other right, title, or interest in or to the SDI IP.  
  3. Changes to Service.  SDI reserves the right, in its sole discretion, to make any changes to the Service and SDI IP that it deems necessary or useful to: (i) maintain or enhance the quality or delivery of the Service; (ii) maintain or enhance the Service’s cost efficiency or performance; or (iii) to comply with applicable Law.
  4. Third Party Materials.  SDI may from time to time make Third-Party Materials  available to Subscriber. For purposes of this Agreement, such Third-Party Materials are subject to their own terms and conditions and the applicable flow-through provisions. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Materials, then Subscriber should not install or use such Third-Party Materials.
  5. Service Level Agreement.  Subject to the terms and conditions of this Agreement, SDI shall use commercially reasonable efforts to make the Service available and provide the support in accordance with the service levels set out in the SLA of Exhibit A.

5. SUSPENSION

Notwithstanding anything to the contrary in the Agreement, SDI may temporarily suspend Subscriber’s and any Authorized User’s access to any portion or all of the Service if: (i) SDI reasonably determines that (A) there is a threat or attack on any of the Service, SDI IP or SDI Systems; (B) Subscriber’s or any Authorized User’s use of the Service disrupts or poses a security risk to the Service, SDI IP, or SDI Systems or to any other customer or vendor of SDI; (C) Subscriber, or any Authorized User, is using the SDI IP for fraudulent or illegal activities; (D) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SDI’s provision of the Service to Subscriber or any Authorized User is prohibited by applicable law; (ii) any vendor of SDI has suspended or terminated SDI’s access to or use of any third-party services or products required to enable Subscriber to access the Service; or (iii) in accordance with Section 7(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). SDI shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Service following any Service Suspension. SDI shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SDI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized User may incur as a result of a Service Suspension.

6. AGGREGATED DATA

Notwithstanding anything to the contrary in the Agreement, Subscriber acknowledges that SDI may monitor Subscriber’s use of the Service and collect and compile Aggregated Data, including Aggregated Data that is based upon Subscriber Data input into the Service.  As between SDI and Subscriber, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by SDI.  Subscriber agrees that SDI may (i) use such Aggregated Data for its own internal development and quality control processes, (ii) make Aggregated Data publicly available in compliance with applicable Law, and (iii) use Aggregated Data to the extent and in the manner permitted under applicable Law, provided, however, that to the extent that any information containing, based upon, or derived from the Subscriber Data is transferred or sold to any third party, SDI agrees that such information shall be structured so as not to permit the identification or discernment of Subscriber or any Subscriber Affiliate as the source or basis for any part of such information.

7. FEES

Subscriber shall pay SDI the Fees set forth in the Service Order without offset or deduction.  Subscriber shall make all payments hereunder in US dollars on or before the due date or in accordance with the payment terms set forth in Service Order.  In the event the Service Order does not include payment terms, Subscriber shall pay all Fees within thirty (30) days after the date of the invoice therefor.  If Subscriber fails to make any payment when due, without limiting SDI’s other rights and remedies: (i) SDI may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Subscriber shall reimburse SDI for all reasonable costs incurred by SDI in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for fifteen (15) days or more, SDI may suspend Subscriber’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full.  All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on SDI’s income.  SDI may increase Fees for any Renewal Term, by providing written notice to Subscriber at least sixty (60) days prior to the commencement of such Renewal Term, and the Service Order will be deemed amended accordingly.

8. CONFIDENTIAL INFORMATION

From time to time during the Term, either party may disclose or make available to the other party Confidential Information.  The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, affiliates, representatives, or contractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings.

9. PRIVACY AND PERSONALLY IDENTIFIABLE INFORMATION

You will not (and will not allow any third party to) use the Service to track or collect Personally Identifiable Information of Internet users. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of Personally Identifiable Information through your use of the Service or otherwise in connection with this Agreement.  SDI shall use its best efforts to protect the confidentiality of Personally Identifiable Information, but SDI shall have no liability for disclosure of Personally Identifiable Information caused by Subscriber’s negligence or misconduct. Subscriber may not send to SDI, or otherwise upload to the Service or permit any data subject to do the same, unless Subscriber has first provided notice to the applicable data subject of such collection and sharing of such Personally Identifiable Information with SDI. Subscriber must ensure the provision and collection of all Personally Identifiable Information and use of the same by SDI as necessary to provide the Services complies with all applicable federal and state laws, including without limitation all data privacy and security laws.

10. FACILITIES

All facilities used by You to store and process Subscriber Data will adhere to reasonable security standards no less protective than the security standards at facilities where SDI stores and processes its own information of a similar type. SDI has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Subscriber Data, protect against anticipated threats or hazards to the security or integrity of Subscriber Data, and protect against unauthorized access to or use of Subscriber Data.

11. INDEMNIFICATION

  1. Subscriber Indemnification.  You agree to indemnify, hold harmless and defend SDI and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against SDI or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) (“Losses”) incurred by SDI or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) the Subscriber Brand Features.  
  2. SDI Indemnification.  SDI shall indemnify, defend, and hold harmless Subscriber from and against any and all Losses incurred by Subscriber arising out of or relating to any claim, action, proceeding or suit brought by a third party (other than an affiliate of Subscriber) that Subscriber’s or an Authorized User’s use of the Services (excluding Subscriber Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (i)Third-Party Materials or Subscriber Data; (ii)access to or use of the Service in combination with any hardware, system, software, network, or other materials or service not provided by SDI or specified for Subscriber’s use in the Documentation; (iii) modification of the Service other than by or on behalf of SDI or  with SDI’s written approval in accordance with SDI’s written specification; or (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Subscriber by or on behalf of SDI.   
  3. Indemnification Procedure.  Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

12. THIRD PARTIES

If You provide access to Your Account or any portion thereof to any third party or use the Service on behalf of any third party (“Third Party”), whether or not You are authorized to do so by SDI or its wholly owned subsidiaries, the terms of this section shall apply to You and such Third Parties.  

If You use the Service on behalf of any Third Party, You represent and warrant that (i) You are authorized to act on behalf of, and bind to this Agreement, that Third Party, (ii) as between the Third Party and You, the Third Party owns any rights to Subscriber Data in the applicable account, and (iii) You shall not disclose Third Party’s Subscriber Data to any other party without the Third Party’s consent.

You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. SDI and its wholly owned subsidiaries make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to SDI and its wholly owned subsidiaries, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend SDI and its wholly owned subsidiaries, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against SDI or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by SDI, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to Third Parties; (ii) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (iii) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Service, the Software or Reports.

13. TERM AND TERMINATION

  1. Term.  The initial term of this Agreement begins on the effective date of the Service Order (“Effective Date”) and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for one (1) year or for such period as may be otherwise set forth in the Service Order (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).  
  2. Termination.  In addition to any other express termination right set forth in this Agreement: (i) SDI may terminate this Agreement, effective on written notice to Subscriber, if Subscriber: (A) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after SDI’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 4 or Section 8; (ii) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (iii) SDI may terminate this Agreement, effective immediately upon written notice to Subscriber, if Subscriber: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 
  3. Effect of Termination.  Upon expiration or earlier termination of this Agreement, Subscriber shall immediately discontinue use of the SDI IP and, without limiting Subscriber’s obligations under Section 8, Subscriber shall delete, destroy, or return all copies of the SDI IP and certify in writing to the SDI that the SDI IP has been deleted or destroyed. No expiration or termination will affect Subscriber’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Subscriber to any refund.  This Section and Sections 1, 6, 7, 8, 11, and 15 through 33 shall survive any termination or expiration of this Agreement.

14. REPRESENTATIONS AND WARRANTIES

Each party represents and warrants that: (i) it has full power and authority to enter into the Agreement; and (ii) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable.

15. DISCLAIMER OF WARRANTIES

Except for the foregoing warranty in Section 13 and as set forth in the SLA, SDI does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. Except as set forth in the SLA, SDI does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that SDI and its wholly owned subsidiaries shall not be responsible for unauthorized access to or alteration of the Subscriber Data or data from Your website.

EXCEPT AS SPECIFICALLY SET FORTH IN THE SLA, THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SDI AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. EXCEPT AS SET FORTH IN THE SLA, SDI DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

16. LIMITATION OF LIABILITY

SDI AND ITS SUBSIDIARIES AND AFFILIATES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SDI AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.

SDI (and its subsidiaries’ and affiliates’) total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the amounts actually paid or payable to SDI under this Agreement in the 6 months prior to the claimed loss or damage.

15. DISCLAIMER OF WARRANTIES

Except for the foregoing warranty in Section 13 and as set forth in the SLA, SDI does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. Except as set forth in the SLA, SDI does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that SDI and its wholly owned subsidiaries shall not be responsible for unauthorized access to or alteration of the Subscriber Data or data from Your website.

EXCEPT AS SPECIFICALLY SET FORTH IN THE SLA, THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SDI AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. EXCEPT AS SET FORTH IN THE SLA, SDI DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

17. PROPRIETARY RIGHTS; FEEDBACK

The SDI IP, which includes but is not limited to the Service, Software, and Documentation and all intellectual property rights therein is, and shall remain, the sole property of SDI (and its wholly owned subsidiaries). All rights in and to the SDI IP and Third-Party Materials not expressly granted to You in this Agreement are hereby expressly reserved and retained by SDI and its licensors without restriction, including, without limitation, SDI’s (and its wholly owned subsidiaries’) right to sole ownership of the Service, Software, and Documentation.  As between the parties, You own all intellectual property rights in Subscriber Data and grant us (and our employees, affiliates, representatives and contractors) a royalty-free, worldwide license to reproduce, distribute, display, access and use the Subscriber Data during the Term to the extent necessary for SDI to provide the Services to Subscriber and enforce the Agreement and a perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Subscriber Data incorporated within the Aggregated Data. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (i) sublicense, distribute, or use the SDI IP outside of the scope of the License granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the SDI IP or otherwise attempt to discover any source code or trade secrets related to the Service; (iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of SDI; (iv) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with SDI (or its wholly owned subsidiaries) other than in the name of SDI (or its wholly owned subsidiaries, as the case may be); or (v) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.  If Subscriber or any of its employees or contractors sends or transmits any communications or materials to SDI by mail, email, telephone, or otherwise, suggesting or recommending changes to the SDI IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), SDI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby assigns to SDI on Subscriber’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SDI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SDI is not required to use any Feedback.

18. U.S. GOVERNMENT RIGHTS

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

19. EXPORT REGULATION

Subscriber shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Service or any Subscriber Data outside the US.

20. TRADEMARKS; PUBLICITY

Subscriber hereby grants to SDI a non-exclusive, royalty free, license during the Term, to use, display and reproduce the trademarks, service marks, logos, or trade names of Subscriber (“Subscriber Brand Features”) to brand the Service as provided to Subscriber with such Subscriber Brand Features.  Upon Subscriber’s approval, Subscriber will: (a) make one or more representatives reasonably available to participate in a video testimonial and for reference inquiries from SDI; (b) permit SDI to create and publish a case study regarding the nature of Subscriber’s use of the Service and return on investment; (c) permit SDI to issue a press release containing a quotation from a representative of Subscriber; and (d) consent to SDI’s display of the Subscriber Brand Features on the website where SDI displays the names and logos of its customers.  Except as set forth in this Section, neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld.

21. NOTICES

All notices must be in writing and sent to the attention of the other party’s legal department and primary point of contact.  Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.

22. ASSIGNMENT

Subscriber may not assign its rights, duties, or obligations under this Agreement without SDI’s prior written consent; provided, however, that Subscriber may assign this Agreement to an acquirer of all or substantially all, or control of all or substantially all, of the assets or business of Subscriber, whether as a result of a merger, acquisition, sale of assets, change of control, or operation of law, without the need for SDI’s consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. 

23. CHANGE OF CONTROL

In addition to the termination rights set forth in Sections 13(b), SDI may terminate this Agreement upon an assignment of this Agreement in accordance with Section 22 or upon a Change of Control of Subscriber.  For the purpose of this Agreement, a Change of Control shall mean: (1) a sale, exchange or other transfer for value of at least 50% of the assets of the Subscriber to a third party not affiliated with the Subscriber; (2) any sale, exchange or transfer for value of the equity of the Subscriber representing at least 50% of the voting power of the Subscriber to a third party not affiliated with the Subscriber; or (3) any merger or consolidation of the Subscriber with or into a corporation, limited liability company or other entity, other than a merger or consolidation in which the holders of at least 50% of the equity of the Subscriber outstanding immediately prior to such transaction or their affiliates continue to hold (either by the voting securities remaining outstanding or by their being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Subscriber or such surviving entity, outstanding immediately after such transaction.

24. FORCE MAJEURE

Neither party will be liable for inadequate performance or be deemed to have breached this Agreement for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemic or widespread illness, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law, or Internet disturbance) that was beyond the party’s reasonable control (each a “Force Majeure Event”).

25. WAIVER

In addition to the termination rights set forth in Sections 13(b), SDI may terminate this Agreement upon an assignment of this Agreement in accordance with Section 22 or upon a Change of Control of Subscriber.  For the purpose of this Agreement, a Change of Control shall mean: (1) a sale, exchange or other transfer for value of at least 50% of the assets of the Subscriber to a third party not affiliated with the Subscriber; (2) any sale, exchange or transfer for value of the equity of the Subscriber representing at least 50% of the voting power of the Subscriber to a third party not affiliated with the Subscriber; or (3) any merger or consolidation of the Subscriber with or into a corporation, limited liability company or other entity, other than a merger or consolidation in which the holders of at least 50% of the equity of the Subscriber outstanding immediately prior to such transaction or their affiliates continue to hold (either by the voting securities remaining outstanding or by their being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Subscriber or such surviving entity, outstanding immediately after such transaction.

26. SEVERABILITY

If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Upon any determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

27. NO AGENCY

The relationship between the parties is that of independent contractors and this Agreement does not create an agency, partnership or joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

28. NO THIRD-PARTY BENEFICIARIES

Except as expressly set forth herein, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

29. EQUITABLE RELIEF

Nothing in this Agreement will limit either party’s ability to seek equitable relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Subscriber, Section 4, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

30. GOVERNING LAW AND JURISDICTION

This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

31. AMENDMENTS

Any amendments to this Agreement must be agreed upon in writing and signed by an authorized representative of each party. 

32. UPDATES TO SERVICE AGREEMENT

SDI may update this Service Agreement from time-to-time and post the updated version at https://apolloplatform.com/service-agreement.  The Service Agreement posted at the time of signing the Service Order will govern for the Initial Term of the Service Order. However, upon renewal of this Agreement, the then-current Service Agreement will govern for the next renewal term.

33. ENTIRE AGREEMENT

This Agreement (including the Service Agreement and Service Order) and the attached schedules and exhibits incorporated herein by reference are the parties’ entire agreement relating to its subject and supersede any prior or contemporaneous agreements on that subject.  In the event of any inconsistency between the statements made in the body of the Service Order, this Service Agreement, the related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Service Order; (ii) second, this Service Agreement, excluding its exhibits; (iii) third, the exhibits to this Agreement as of the Effective Date; and (iii) fourth, any other documents incorporated herein by reference. 

EXHIBIT A
SERVICE LEVEL AGREEMENT

1. Service Availability.

1.1 Availability Requirement.  SDI shall employ commercially reasonable efforts to make the Software Available, as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding the time the Software is not Available as a result of one or more Exceptions (described below in Section 1.2) , at least ninety-ninety point nine percent (99.9%) of the time (the “Availability Requirement”). “Available” or “Availability” means the Software are available and operable for access and use by Subscriber and its Authorized Users over the Internet in material conformity with the specifications for the Software set forth in the applicable Documentation.  The Software is not considered Available in the event of any material downtime, performance degradation or inoperability that causes: (i) the entire system to be unavailable or operating in materially degraded state,(ii) prevents data entry or access, (iii) has a material financial impact, or (iv) widespread access interruptions.  

1.2 Exceptions.  No period of Software downtime, performance degradation or inoperability will be included in calculating Availability to the extent that such downtime, degradation or inoperability is due to any of the following (“Exceptions”):

  1. failures of Subscriber’s or its users’ internet connectivity or misuse of the Software by Subscriber or its Authorized Users other than in compliance with the express terms of the Agreement; 
  2. technical malfunctions in Your Website’s systems or information technology infrastructure, or any other circumstances beyond SDI’s reasonable control (including, without limitation, Internet delays, network congestion and ISP malfunctions;
  3. downtime or degradation due to a Force Majeure Event; 
  4. any suspension or termination of Subscriber’s or any Authorized Users’ access to or use of the Software as permitted by the Agreement; and
  5. Scheduled Downtime as set forth in Section 1.3.

1.3 Scheduled Downtime.  SDI shall use commercially reasonable efforts to give Subscriber at least twenty-four (24) hours’ prior notice of all scheduled outages of the Software (“Scheduled Downtime”) and will use commercially reasonable efforts to limit Scheduled Downtime to no more than twice per month, between the hours of 9:00 p.m. and 7:00 a.m., Eastern Time.

2. Availability Credit.  If the monthly Availability of the Software for Subscriber is below the Availability Requirement during a calendar month, Subscriber shall be eligible to receive a credit (“Availability Credit”) to be credited against Subscriber’s next invoice, as follows:

Availability Credit
95% - 99.8%5%
90% - 94.9%10%
80% - 89.9%15%
50% - 79.9%20%
Below 50%50%

3. SLA Exclusions and Limits. The remedies set forth in this Service Level Agreement are Your sole remedies for any and all unavailability of the Software. Notwithstanding anything to the contrary in this Agreement, SDI will have no liability (including in respect of indemnification obligations or SLA obligations) under this Agreement arising out of or related to any Beta Features.

4. Technical Support Service Guidelines: Support Process. Requests for support will be classified and addressed in accordance with the descriptions set forth in the chart below (each a “Support Request”). Subscriber shall notify SDI of Support Requests by using SDI’s online support desk incident ticketing and tracking system (“Support Desk”).

Priority

Subject Line

Severity of Issue

Description of Priority Characterization

Contact Method

Estimated Response Time

P1
“P1” or “System Down”
Critical Priority
  • Entire Service down or operating in materially degraded state;
  • Data entry or access is prevented;
  • Material financial impact; or
  • Widespread access interruptions.

Subscriber contacts SDI:  support@apolloplatform.com

SDI will use commercially reasonable efforts to respond to Subscriber within 1 hour via email and will provide updates as necessary during normal business hours (i.e., between 9am-6pm Eastern, Monday through Friday, non-holidays).
P2
“P2”
High Priority
  • Major functions down or issues accessing account

Subscriber contacts SDI:  support@apolloplatform.com

SDI will use commercially reasonable efforts to respond to Subscriber within 4 hours via email and will provide updates as necessary. Note: Estimated response times are applicable only to business hours (9am-6pm Eastern, Monday through Friday, non-holidays)
P3
“P3”
Normal Priority
  • Standard troubleshooting regarding account functionality; or
  • Service is operating with issues that can be addressed with a work around.

Subscriber contacts SDI:  support@apolloplatform.com

SDI will use commercially reasonable efforts to respond within 1 business day via email and will provide updates as necessary. Note: Estimated response times are applicable only to business hours (8am-6pm Eastern, Monday through Friday, non-holidays)
P4
“P4”
Low Priority
  • Minor issues
  • Request for assistance, information, or services that are routine in nature.

Subscriber contacts SDI:  support@apolloplatform.com

SDI will use commercially reasonable efforts to respond within 2-business days via email and will provide updates as necessary. Note: Estimated response times are applicable only to business hours (8am-6pm Eastern, Monday through Friday, non-holidays)

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