ApertureData Terms of Services

Master Customer Agreement

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THIS MASTER CUSTOMER AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN APERTUREDATA INC. (“VENDOR”) AND THE CUSTOMER (DEFINED BELOW) AND GOVERNS CUSTOMER’S USE OF AND ACCESS TO THE PRODUCTS. CERTAIN CAPITALIZED TERMS ARE DEFINED IN EXHIBIT A AND OTHERS ARE DEFINED CONTEXTUALLY IN THIS AGREEMENT.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) AGREEING TO AN ORDER THAT REFERENCES THIS AGREEMENT, OR (3) OTHERWISE ACCESSING OR USING THE PRODUCTS, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE TERM “CUSTOMER” WILL REFER TO THE INDIVIDUAL ACCEPTHING THIS AGREEMENT, PROVIDED THAT IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, AND THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ACCESS THE PRODUCTS.

Products.
1. Ordering Process. Each Order will include the specific Products ordered by Customer, including, as applicable, the purchased Products, number of instances, license tiers, and the time period for which such Order applies.
2. Right to Access and Use. During the Subscription Term, and subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Product only for its internal business purposes, including to enable Customer’s products, services and other offerings, the functionality and purpose of which are materially different from the Products (each a “Customer Application”), in accordance with the Documentation, this Agreement, and all limitations set forth in an Order.
3. Users. Only Users may access or use the Products. Each User must keep its access credentials, if any, confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken using their access credentials. Customer will promptly notify Vendor if it becomes aware of any compromise of any of its Users’ accounts or access credentials. Vendor may Process access credentials in connection with Vendor’s provision of the Products or for Vendor’s internal business purposes.
4. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, sell, or sublicense a Product to a third party (other than Users); (b) use a Product on behalf of third parties; (c) use a Product to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Product, except to the extent expressly permitted by Law (and then only with prior notice to Vendor); (e) modify or create derivative works of a Product or copy any element of a Product; (f) remove or obscure any proprietary notices in a Product; (g) publish benchmarks or performance information about a Product; (h) interfere with the operation of a Product, circumvent any access restrictions, or conduct any security or vulnerability test of a Product; (i) transmit any viruses or other harmful materials to a Product; (j) take any action that risks harm to others or to the security, availability, or integrity of a Product; or (k) access or use a Product in a manner that violates any Law. Additionally, Customer must not use a Product with Prohibited Data or for High Risk Activities. Customer acknowledges that the Products are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Vendor is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Vendor has no liability for Prohibited Data or use of a Product for High Risk Activities.
Support. If purchased by Customer pursuant to an Order, then during the relevant Subscription Term, Vendor will provide the purchased Support for the relevant Products in accordance with the applicable Support Policy.
Updates. Unless stated otherwise in an Order, Vendor will make available Updates to Products as Vendor makes them available to its customers of the applicable Products generally. Customer’s purchase of a license or access to Products is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Vendor regarding future functionality or features of the Products.
Data.
1. Use of Customer Data. Customer grants Vendor the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Products, Support, and Implementation Services; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties, in each case, in accordance with Vendor’s Privacy Policy.
2. Security. Vendor will implement and maintain commercially reasonable policies and procedures designed to protect the Customer Data in Vendor’s possession or control against unauthorized access, use or disclosure. The foregoing constitutes Vendor’s sole and exclusive obligation with respect to protection of Customer Data and from unauthorized access, use or disclosure.
3. Usage Data; Aggregated Data. Vendor may Process Usage Data and Aggregated Data for internal business purposes. Customer will not interfere with the collection of Usage Data.
Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Products. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Vendor to Process Customer Data as set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data. In particular, Customer acknowledges that it has read and agrees to ApertureData’s Copyright Policy, which is incorporated herein by reference. Customer will not provide Vendor with any data that is subject to Data Protection Laws without first entering into a data processing addendum with Vendor concerning the Processing of such data in accordance with such Data Protection Laws.
Suspension of Service. Vendor may immediately suspend Customer’s access to any or all of the Products if: (a) Customer breaches Section 1.5 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Vendor suspend a Product or otherwise may impose additional liability on the part of Vendor; or (d) Customer’s actions risk harm to any of Vendor’s other customers or the security, availability, or integrity of a Product. Where practicable, Vendor will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Vendor will restore Customer’s access to the Products.
Customer Systems. Customer will provide and maintain any Customer Systems.
Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Vendor does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Product or how the Third-Party Platforms or their providers use Customer Data or any other data received from a Product. By enabling a Third-Party Platform to interact with a Product, Customer authorizes Vendor to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
Implementation Services. Customer will give Vendor timely access to Customer Materials reasonably needed for the Implementation Services, and if Customer fails to do so, Vendor’s obligation to provide Implementation Services will be excused until access is provided. Vendor will use Customer Materials only for purposes of providing Implementation Services. Customer may use Implementation Services deliverables only as part of its authorized use of the relevant Products and, subject to the same terms as for the relevant Products in Section 1 (Services) and Section 5 (Customer Obligations).
Commercial Terms.
1. Subscription Term. Except as otherwise set forth in the applicable Order, each Subscription Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends.
2. Fees and Taxes. Fees for the Products, Support and Implementation Services are described in each Order (“Fees”). All Fees will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced as described on the schedule in the Order, or if none, in advance. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. If Customer elects to pay by credit card, Customer authorized Vendor and its third-party payment processors to charge the Fees to the credit card accounts associated with Customer’s account for the Product (or otherwise provided to Vendor). Fees for renewal Subscription Terms are at Vendor’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as may be set out in Section 11.2 (Warranty Remedy) and Section 15.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Vendor’s income tax (“Taxes”). Fees are exclusive of all Taxes.
3. Excess Usage. Products are licensed subject to usage limitations. Different license tiers may have different usage limitations, as described on the Order. If Customer exceeds any usage limitations for the license tier purchased by Customer, then beginning on the date such excess usage first occurs (“Excess Date”) Customer will be deemed to have purchased the lowest license tier that has usage limitations that meet or exceed Customer’s actual usage (“Correct Tier”), and Customer will promptly pay Vendor the net additional Fees that Customer would have been required to pay Vendor had Customer purchased the Correct Tier as of the Excess Date, as set forth in the applicable Order (or if none, then at Vendor’s then-current rates).
4. Usage Logs. For Products provided in a virtual private cloud (“VPC Products”), Customer agrees to provide Vendor with a report every 6 months of the Subscription Term and at the end of the Subscription Term, which report will detail Customer’s usage of such VPC Products for the immediately preceding 6 months, using the utilities provided within such VPC Products (“Usage Log”). Usage Logs will be deemed Customer’s Confidential Information and Vendor will not use the Usage Logs for any purpose other than to verify Customer’s usage of the On-Prem Products for the purposes of determining excess usage.
Warranties and Disclaimers.
1. Limited Warranties. Vendor warrants to Customer that:some text
  1. each of the Products will perform materially as described in its Documentation during a Subscription Term (“Performance Warranty”); and
  2. Vendor will perform any Implementation Services in a professional and workmanlike manner (“Implementation Services Warranty”).

The Performance Warranty and Implementation Services Warranty are each referred to as a “Limited Warranty” and collectively as the “Limited Warranties”.

Warranty Remedy. If Vendor breaches a Limited Warranty and Customer makes a reasonably detailed warranty claim in the manner reasonably required by Vendor within 30 days of discovering a breach of the Performance Warranty for the applicable Products or of receipt of Implementation Services, then Vendor will use reasonable efforts to correct the non-conformity. If Vendor cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the non-conforming Products or Implementation Services. Vendor will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term (for the Performance Warranty) or for the non-conforming Implementation Services (for the Implementation Services Warranty). This Section sets forth Customer’s exclusive remedy and Vendor’s entire liability for breach of the Limited Warranties. These warranties do not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Product; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Products other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
Disclaimers. Except as expressly provided in Section 12.1 (Limited Warranties), the Products, Support, Implementation Services, and all other Vendor products or services are provided “AS IS”. Vendor, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Vendor does not warrant that Customer’s use of the Products will be uninterrupted or error-free, that Vendor will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Vendor is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Vendor’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

Term and Termination.
1. Term. The term of this Agreement (the “Term”) starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
2. Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Subscription Terms for pay as you go subscriptions will be terminable for convenience by either party upon notice to the other or, in the case of Customer, via the mechanisms made available through the Product. Vendor may terminate this Agreement (including any or all Orders) for convenience without additional liability to Customer upon notice, provided that Vendor refunds to Customer any prepaid any pre-paid, unused fees for the terminated portion of the Subscription Term.
3. Effect of Termination. Upon expiration or termination of an Order, Customer’s right to access and license to, and Vendor’s obligations to provide, the Products, Support, and Implementation Services described in the Order will cease. Customer Data and other Confidential Information, as defined in Section 17, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
4. Survival. These Sections survive expiration or termination of this Agreement: 1.5 (Restrictions), 4.3 (Usage Data; Aggregated Data), 5 (Customer Obligations), 10 (Commercial Terms), 11.3 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), 20 (General Terms), and Exhibit A (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to Vendor. Except for Customer’s use rights in this Agreement, Vendor and its licensors retain all intellectual property rights and other rights in the Products, any Implementation Services deliverables, Documentation, Usage Data, and Vendor technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Vendor. If Customer provides Vendor with feedback or suggestions regarding the Products or other Vendor offerings, Vendor may use the feedback or suggestions without restriction or obligation.
Limitations of Liability.
1. Consequential Damages Waiver. In no event will Vendor (or its suppliers or licensors) be liable to Customer for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind arising out of or related to this Agreement, even if informed of their possibility in advance.
2. Liability Cap. Vendor’s (and its suppliers’ and licensor’s) entire liability arising out of or related to this Agreement will not exceed in aggregate the greater of the amounts paid or payable by Customer to Vendor pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement and $100.
3. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 14.3 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
Indemnification.
1. Indemnification by Vendor. Vendor will defend Customer from and against any third-party claim to the extent alleging that a Product, when used by Customer as permitted under this Agreement and the applicable Order, infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Vendor resulting from the claim.
2. Indemnification by Customer. Customer will defend Vendor from and against any third-party claim to the extent resulting from Customer Data, Customer Applications, Customer Materials, or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Vendor against any damages and costs awarded against Vendor (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
3. Procedures. The indemnifying party’s obligations in this Section 15 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Products when Vendor is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Vendor determines necessary to avoid material liability, Vendor may at its option: (a) procure rights for Customer’s continued use of the applicable Product; (b) replace or modify the allegedly infringing portion of the applicable Product to avoid infringement or misappropriation without reducing the Product’s overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
5. Exceptions. Vendor’s obligations in this Section 15 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of the Products or use of Products in combination with items not provided by Vendor (including Third-Party Platforms); (b) to infringement resulting from Products other than the most recent release; (c) to unauthorized use of Products; (d) if Customer settles or makes any admissions about a claim without Vendor’s prior consent; or (e) to Trials and Betas (as defined in Section 18) or other free or evaluation use.
6. Exclusive Remedy. This Section 15 sets out Customer’s exclusive remedy and Vendor’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
Confidentiality.
1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Vendor’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Products. Customer’s Confidential Information includes Customer Data.
2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Vendor is the Recipient, Vendor may retain the Customer’s Confidential Information to the extent required to continue to provide the Products. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Vendor, the subcontractors referenced in Section 20.8), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16. Nothing in this Section 16 will limit rights granted under Section 4.
3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.
Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
Trials and Betas. If Customer receives access to Products or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Vendor (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Vendor may never release, and their features and performance information are Vendor’s Confidential Information. Notwithstanding anything else in this Agreement, Vendor provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.
Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Vendor may include Customer and its trademarks in Vendor’s customer lists and promotional materials but will cease further use at Customer’s written request.
General Terms.
1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Santa Clara County, California and both parties submit to the personal jurisdiction of those courts.
3. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be made via email if to Customer, to the email address associated with Customer’s account for the Product, and if to Vendor, to [team@aperturedata.io]. Vendor may also send operational notices to Customer via the Product. Notices will be deemed given one day after dispatch if by a commercial overnight delivery service or email. Either party may update its address for notice with notice to the other party.
4. Entire Agreement. This Agreement (which includes all Orders, the Privacy Policy, the Copyright Policy and the Support Policy) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
5. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Vendor. Nonetheless, with notice to Customer, Vendor may modify the terms of this Agreement on a going forward basis, including to reflect new features or changing practices provided that any modifications that materially affect Customer’s rights or obligations under this Agreement must be accepted by Customer prior to becoming effective. If Customer does not agree to the modified Agreement, then Customer may discontinue use of the Service within 30 days of receiving such notice. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Vendor; any of these Customer documents are for administrative purposes only and have no legal effect.
6. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
7. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).
8. Subcontractors. Vendor may use subcontractors and permit them to exercise Vendor’s rights, but Vendor remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
9. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
10. Export. Customer acknowledges that the Products may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Product. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access, use, or export the Products in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Products any information controlled under the U.S. International Traffic in Arms Regulations.
11. Open Source. The On-Prem Products may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by Vendor in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
12. Government End-Users. Elements of the Products are commercial computer software. If the user or licensee of a Product is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
13. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of an Order, the terms of the body of this Agreement and the terms of any schedules, exhibits, attachments, addenda, policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms of the Order, but only with respect to such Order; (b) the terms contained in the body of this Agreement; (c) the terms of the schedules, exhibits, attachments, addenda, and policies to this Agreement; and (d) the Documentation.
14. License Verification. Upon Vendor’s written request, Customer will certify in writing that its use of VPC Products is in full compliance with the terms of this Agreement. With prior reasonable notice of at least 10 days, Vendor may Customer’s instances of VPC Products, provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with this Agreement. Vendor will not exercise these verification rights more than once annually except in cases of repeated violations.

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Exhibit A

Definitions

“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
“Copyright Policy” means the then-current version of Vendor’s copyright policy, available at [LINK]).
“Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Products, including from Third-Party Platforms; and (b) is Processed by Vendor to provide the Products to Customer.
“Customer Materials” means materials, systems, and other resources that Customer provides to Vendor in connection with Implementation Services.
“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Products.
“Data Protection Laws” means: (a) the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time; (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), their national implementations in the European Economic Area (“EEA”), and all other data protection laws of the EEA including laws of the European Union (“EU”), the data protection laws of the United Kingdom (“UK”) and Switzerland, each as applicable, and as may be amended or replaced from time to time; and (c) any similar Laws.
“Documentation” means the then-current version of Vendor’s usage guidelines and standard technical documentation for the Products, the current version of which are at docs.aperturedata.io, and as may otherwise be provided or made available by Vendor to Customer from time to time.
“High Risk Activities” means activities where use or failure of a Product could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data.
“Order” means an order, pricing page, purchasing page, or other document that identifies or describes the Products being purchased or licensed by Customer that is agreed to by Customer and references this Agreement.
“Privacy Policy” means the then-current version of Vendor’s privacy policy, available at https://www.aperturedata.io/privacy-policy.
“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
“Product” or “Products” means the Vendor’s proprietary product offerings that are identified in the relevant Order (but excluding Support and Implementation Services). Each of the Products includes the Documentation for that Product.
“Subscription Term” means the period during which Customer’s license or subscription to access and use the Product is in effect, as identified in the applicable Order.
“Support” means support for the Product as described in the relevant Support Policy.
“Support Policy” means the then-current version of Vendor’s customer support policy for the Products, available at https://www.aperturedata.io/support-policy.
“Implementation Services” means any implementation, training, or configuration services provided by Vendor related to the Products, as identified in an Order. Implementation Services exclude Support.
“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Vendor that Customer elects to integrate or enable for use with any Product.
“Updates” means any updates, modifications, or bug fixes to the Product or Documentation that Vendor provides free of additional charge to its customers of that Product.
“Usage Data” means information generated from the use of the Products, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Products, but excluding any identifiable Customer Data.
“User” means any employee or contractor of Customer or its affiliates that Customer allows to use the Products on Customer’s behalf.