Agreement Terms and Conditions

1. SAAS SERVICES AND SUPPORT 

TERMS AND CONDITIONS 

1.1 Subject to the terms of this Agreement, Applause will  use commercially reasonable efforts to provide Customer the  Services. As part of the registration process, Customer will  identify an administrative user name and password for  Customer’s Applause account. Applause reserves the right to  refuse registration of, or cancel passwords it deems  inappropriate. 

1.2 Subject to the terms hereof, Applause will provide  Customer with reasonable technical support services in  accordance with Applause’s standard practice. 

 

2. RESTRICTIONS AND RESPONSIBILITIES 

2.1 Customer will not, directly or indirectly: reverse  engineer, decompile, disassemble or otherwise attempt to  discover the source code, object code or underlying structure,  ideas, know-how or algorithms relevant to the Services or any  software, documentation or data related to the Services  (“Software”); modify, translate, or create derivative works  based on the Services or any Software (except to the extent  expressly permitted by Applause or authorized within the  Services); use the Services or any Software for timesharing or  service bureau purposes or otherwise for the benefit of a third;  or remove any proprietary notices or labels. With respect to any  Software that is distributed or provided to Customer for use on  Customer premises or devices, Applause hereby grants  Customer a non-exclusive, non-transferable, non-sublicensable  license to use such Software during the Term only in  connection with the Services. 

2.2 Further, Customer may not remove or export from the  United States or allow the export or re-export of the Services,  Software or anything related thereto, or any direct product  thereof in violation of any restrictions, laws or regulations of  the United States Department of Commerce, the United States  Department of Treasury Office of Foreign Assets Control, or  any other United States or foreign agency or authority. As  defined in FAR section 2.101, the Software and documentation  are “commercial items” and according to DFAR section  252.227-7014(a)(1) and (5) are deemed to be “commercial  computer software” and “commercial computer software  documentation.” Consistent with DFAR section 227.7202 and  FAR section 12.212, any use modification, reproduction,  release, performance, display, or disclosure of such commercial  software or commercial software documentation by the U.S.  Government will be governed solely by the terms of this  Agreement and will be prohibited except to the extent expressly  permitted by the terms of this Agreement. 

2.3 Customer represents, covenants, and warrants that  Customer will use the Services only in compliance with  Applause’s standard published policies then in effect (the  “Policy”) and all applicable laws and regulations. Without  limiting the generality of the foregoing, Customer represents,  covenants, and warrants that it will comply with the Telephone  

Customer provides to Applause or otherwise enters into or  processes through the Services will be collected in compliance  with the TCPA. Customer hereby agrees to indemnify and hold  harmless Applause against any damages, losses, liabilities,  settlements and expenses (including without limitation costs  and attorneys’ fees) in connection with any claim or action that  arises from an alleged violation of the foregoing or otherwise  from Customer’s use of Services. Although Applause has no  obligation to monitor Customer’s use of the Services, Applause  may do so and may prohibit any use of the Services it believes  may be (or alleged to be) in violation of the foregoing. 

2.4 Customer shall be responsible for obtaining and  maintaining any equipment and ancillary services needed to  connect to, access or otherwise use the Services, including,  without limitation, modems, hardware, servers, software,  operating systems, networking, web servers and the like  (collectively, “Equipment”). Customer shall also be  responsible for maintaining the security of the Equipment,  Customer account, passwords (including but not limited to  administrative and user passwords) and files, and for all uses of  Customer account or the Equipment with or without  Customer’s knowledge or consent. 

3. CONFIDENTIALITY; PROPRIETARY RIGHTS 

3.1 Each party (the “Receiving Party”) understands that  the other party (the “Disclosing Party”) has disclosed or may  disclose business, technical or financial information relating to  the Disclosing Party’s business (hereinafter referred to as  “Proprietary Information” of the Disclosing Party). Proprietary Information of Applause includes non-public  information regarding features, functionality and performance  of the Service. Proprietary Information of Customer includes  non-public data provided by Customer to Applause to enable  the provision of the Services (“Customer Data”). The  Receiving Party agrees: (i) to take reasonable precautions to  protect such Proprietary Information, and (ii) not to use (except  in performance of the Services or as otherwise permitted  herein) or divulge to any third person any such Proprietary  Information. The Disclosing Party agrees that the foregoing  shall not apply with respect to any information after five (5)  years following the disclosure thereof or any information that  the Receiving Party can document (a) is or becomes generally  available to the public, or (b) was in its possession or known by  it prior to receipt from the Disclosing Party, or (c) was  rightfully disclosed to it without restriction by a third party, or  (d) was independently developed without use of any  Proprietary Information of the Disclosing Party or (e) is  required to be disclosed by law.  

3.2 Customer shall own all right, title and interest in and to  the Customer Data. Applause shall own and retain all right, title  and interest in and to (a) the Services and Software, all  improvements, enhancements or modifications thereto, (b) any  software, applications, inventions or other technology developed in connection with Implementation Services or  support, and (c) all intellectual property rights related to any of  the foregoing. 

3.3 Notwithstanding anything to the contrary, Applause  shall have the right collect and analyze data and other  information relating to the provision, use and performance of  various aspects of the Services and related systems and  technologies (including, without limitation, information  concerning Customer Data and data derived therefrom), and Applause will be free (during and after the term hereof) to (i)  use such information and data to improve and enhance the  Services and for other development, diagnostic and corrective  purposes in connection with the Services and other Applause  offerings, and (ii) disclose such data solely in aggregate or other  de-identified form in connection with its business. No rights or  licenses are granted except as expressly set forth herein. 

4. PAYMENT OF FEES 

4.1 Customer will pay Applause the then applicable fees  described in the Order Form for the Services and  Implementation Services in accordance with the terms therein  (the “Fees”). If Customer’s use of the Services exceeds the  Service Capacity set forth on the Order Form or otherwise  requires the payment of additional fees (per the terms of this  Agreement), Customer shall be billed for such usage and  Customer agrees to pay the additional fees in the manner  provided herein. Applause reserves the right to change the Fees  or applicable charges and to institute new charges and Fees at  the end of the Initial Service Term or then-current renewal term,  upon thirty (30) days prior notice to Customer (which may be  sent by email). If Customer believes that Applause has billed  Customer incorrectly, Customer must contact Applause no later  than 60 days after the closing date on the first billing statement  in which the error or problem appeared, in order to receive an  adjustment or credit. Inquiries should be directed to Applause’s  customer support department. 

4.2 Applause may choose to bill through an invoice, in  which case, full payment for invoices issued in any given  month must be received by Applause thirty (30) days after the  mailing date of the invoice. Unpaid amounts are subject to a  finance charge of 1.5% per month on any outstanding balance,  or the maximum permitted by law, whichever is lower, plus all  expenses of collection and may result in immediate termination  of Service. Customer shall be responsible for all taxes  associated with Services other than U.S. taxes based on  Applause’s net income. 

5. TCPA COMPLIANCE

5.1 TCPA Compliance and Permission to Communicate with Customers. CUstomer understands that Applause software and services are intended to allow Customer to send transactional or informational text messages to Customer's existing customers. Customer agrees and understands Applause software will not be used for telemarketing, promotional, advertising, or marketing text messages in any way.

 

5.2 Customer represents and warrants that Customer has obtained all requisite permissions, consents and authorizations required by all relevant laws, and specifically required by the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Customer will be solely responsible for complying with any messaging consent obligations under the TCPA and TSR in the course of accessing and using Applause software and services.

 

5.3 Customer will immediately cease all communication through Applause software with customers who opt-out, unsubscribe, stop receiving communications or otherwise wish not to be contacted by or behalf of Customer's company. 

6. Uptime and Support 


6.1 Uptime: Applause is committed to delivering 99% uptime and all reasonable measures to ensure such uptime will be taken.

 

6.2 Support Response Time: Applause will respond to all service requests within 1 business day of submission. Support availability is M-F 9:00am to 5:00pm MST. 

 

6.3 Penalties: If Applause materially fails to meet the uptime or response time commitment Customer can terminate the agreement with a 30 day written notice. This notice must include a written description of the down time or failure to respond. Customer will be reimbursed for any fees, if applicable, corresponding with downtime in excess of 99%.

7. TERM AND TERMINATION

 

7.1 Subject to earlier termination as provided below, this  Agreement is for the Initial Service Term as specified in the  Order Form, and shall be automatically renewed for additional  periods of the same duration as the Initial Service Term  (collectively, the “Term”), unless either party requests  termination at least thirty (30) days prior to the end of the  then-current term. 

7.2 In addition to any other remedies it may have, either  party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the  other party materially breaches any of the terms or conditions  of this Agreement. Customer will pay in full for the Services up  to and including the last day on which the Services are  provided. Upon any termination, Applause may, but is not  obligated to, delete stored Customer Data. All sections of this  Agreement which by their nature should survive termination  will survive termination, including, without limitation, accrued  rights to payment, confidentiality obligations, warranty  disclaimers, and limitations of liability. 

8. WARRANTY AND DISCLAIMER

 

Applause shall use reasonable efforts consistent with  prevailing industry standards to maintain the Services in a  manner which minimizes errors and interruptions in the  Services and shall perform the Implementation Services in a  professional and workmanlike manner. Services may be  temporarily unavailable for scheduled maintenance or for  unscheduled emergency maintenance, either by Applause or by  third-party providers, or because of other causes beyond  Applause’s reasonable control, but Applause shall use  reasonable efforts to provide advance notice in writing or by  e-mail of any scheduled service disruption. HOWEVER,  APPLAUSE DOES NOT WARRANT THAT THE SERVICES  WILL BE UNINTERRUPTED OR ERROR FREE; NOR  DOES IT MAKE ANY WARRANTY AS TO THE RESULTS  THAT MAY BE OBTAINED FROM USE OF THE  SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS  SECTION, THE SERVICES AND IMPLEMENTATION  SERVICES ARE PROVIDED “AS IS” AND APPLAUSE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,  INCLUDING, BUT NOT LIMITED TO, IMPLIED  WARRANTIES OF MERCHANTABILITY AND FITNESS  FOR A PARTICULAR PURPOSE AND  NON-INFRINGEMENT. 

9. LIMITATION OF LIABILITY

 

NOTWITHSTANDING ANYTHING TO THE  CONTRARY, EXCEPT FOR BODILY INJURY OF A  PERSON, APPLAUSE AND ITS SUPPLIERS (INCLUDING  BUT NOT LIMITED TO ALL EQUIPMENT AND  TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,  REPRESENTATIVES, CONTRACTORS AND EMPLOYEES  SHALL NOT BE RESPONSIBLE OR LIABLE WITH  RESPECT TO ANY SUBJECT MATTER OF THIS  AGREEMENT OR TERMS AND CONDITIONS RELATED  THERETO UNDER ANY CONTRACT, NEGLIGENCE,  STRICT LIABILITY OR OTHER THEORY: (A) FOR  ERROR OR INTERRUPTION OF USE OR FOR LOSS OR  INACCURACY OR CORRUPTION OF DATA OR COST OF  PROCUREMENT OF SUBSTITUTE GOODS, SERVICES  OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR  ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND APPLAUSE’S REASONABLE  CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY  CUSTOMER TO APPLAUSE FOR THE SERVICES UNDER  THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE  ACT THAT GAVE RISE TO THE LIABILITY, IN EACH  CASE, WHETHER OR NOT APPLAUSE HAS BEEN  ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

10. MISCELLANEOUS 

If any provision of this Agreement is found to be  unenforceable or invalid, that provision will be limited or  eliminated to the minimum extent necessary so that this  Agreement will otherwise remain in full force and effect and  enforceable. This Agreement is not assignable, transferable or  sublicensable by Customer except with Applause’s prior  written consent. Applause may transfer and assign any of its  rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the  mutual understanding of the parties and supersedes and cancels  all previous written and oral agreements, communications and  other understandings relating to the subject matter of this  Agreement, and that all waivers and modifications must be in a  writing signed by both parties, except as otherwise provided  herein. No agency, partnership, joint venture, or employment is  created as a result of this Agreement and Customer does not  have any authority of any kind to bind Applause in any respect  whatsoever. In any action or proceeding to enforce rights under  this Agreement, the prevailing party will be entitled to recover  costs and attorneys’ fees. All notices under this Agreement will  be in writing and will be deemed to have been duly given when  received, if personally delivered; when receipt is electronically  confirmed, if transmitted by facsimile or e-mail; the day after it  is sent, if sent for next day delivery by recognized overnight  delivery service; and upon receipt, if sent by certified or  registered mail, return receipt requested. This Agreement shall  be governed by the laws of the State of Utah without regard to  its conflict of laws provisions. 

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© 2023 by Applause Technology, Inc.

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