This is a binding contract. Please read it carefully before using the Aptible Security Assessment Questionnaire offering.
These Supplemental Terms of Service for the Security Assessment Questionnaire Offering (“Supplemental Terms”) are an important contract between You and Us, and provide for rights and obligations with respect to Your use of the SAQ Offering (as further defined) only.
The rights and obligations provided for in these Supplemental Terms are in addition to—not instead of—the rights and obligations provided for in the Aptible Terms of Service and its Policies (as defined therein), available at https://www.aptible.com/legal/terms-of-service (such Terms of Service and Policies, together, the “General Terms”, and together with the Supplemental Terms, the “Terms”), which are hereby incorporated by reference, and which also govern your use of the SAQ Offering.
You acknowledge and agree these Supplemental Terms form an integral part of the General Terms, and that by agreeing to these Supplemental Terms, you are also agreeing to the General Terms. In the event of explicit conflict between these Supplemental Terms and the General Terms, these Supplemental Terms shall govern.
In these Supplemental Terms:
You acknowledge and agree that, as provided in greater detail in these Supplemental Terms:
1.1 These Supplemental Terms, together with the General Terms, govern Your use of the SAQ Offering only.
1.2 The General Terms govern not only Your use of the SAQ Offering, but also continue to solely govern Your use of all other Aptible Services (as defined in the General Terms) more broadly, unless otherwise agreed upon in writing by Us and You.
1.3 The SAQ Offering is licensed, not sold to you, and you may use the SAQ Offering only as set forth in the Terms;
1.4 The SAQ Offering is an administrative service intended only to expedite organization of responses to SAQs, and IT IS YOUR RESPONSIBILITY ALONE TO CONFIRM THAT THE RESPONSES PROVIDED FOR ACCORDINGLY ARE ACCURATE AND TRUTHFUL;
1.5 THE SAQ OFFERING IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, AND APTIBLE’S LIABILITY TO YOU IS LIMITED; and
1.6 DISPUTES ARISING HEREUNDER WILL BE RESOLVED BY BINDING ARBITRATION, AND BY ACCEPTING THIS AGREEMENT, YOU AND APTIBLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Dispute Resolution provision in Section 19 of the General Terms for the details regarding your agreement to arbitrate any disputes with Aptible.
2.1 We will provide the SAQ Offering in material conformity with the description provided for in these Supplemental Terms.
2.2 We will use commercially reasonable efforts to (a) fulfill the SAQ Offering within three (3) business days of receipt of the SAQ and Supporting Documents, and (b) pose any initial questions about such SAQ and Supporting Documents within twenty-four (24) hours of receipt.
3.1 Confidential Information. As used in this Agreement, "Confidential Information" means all nonpublic information relating to or disclosed by Us to You that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation:
3.1a Nonpublic information relating to Our technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
3.1b Third-party information that We are obligated to keep confidential; and
3.1c The nature, content and existence of this Agreement and any discussions or negotiations between Us and You.
Confidential Information may be contained in tangible materials, such as drawings, data, specifications, report and computer programs, or may be in the nature of unwritten knowledge.
3.2 Exclusions. Confidential Information does not include any information that:
3.2a Is or becomes publicly available without breach of this Agreement;
3.2b an be shown by documentation to have been known by You at the time of its receipt;
3.2c Is received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or
3.2d Can be shown by documentation to have been independently developed by You without reference to any Confidential Information.
3.3 Use of Confidential Information. You may use Confidential Information only in pursuance of Your business relationship with Us. Except as expressly provided in this Agreement, You will not disclose Confidential Information to any person or entity without Our prior written consent. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect Your own confidential information of a similar nature. You will segregate Confidential Information from the confidential materials of third parties to prevent co-mingling. You will not export any Confidential Information in any manner contrary to the export regulations of the United States.
3.4 Personnel; Affiliates. You will restrict the possession, knowledge and use of any Confidential Information to each of Your employees and contractors who (i) has a need to know the specific Confidential Information in connection with the parties' business relationship, and (ii) has entered into a written nondisclosure agreement obligating them to protect the Confidential Information. You will ensure that each of Your affiliates, employees and contractors (and the employees and contractors of your affiliates) comply with this Agreement and their respective nondisclosure agreements.
3.5 Disclosures to Governmental Entities and Other Compelled Disclosures. You may disclose Confidential Information:
3.5a As required to comply with binding orders of governmental entities that have jurisdiction over You; or
3.5b As otherwise required by law, provided that You, to the maximum extent permitted by law:
3.5b1 Give Us prior written notice sufficient to allow Us or You to seek a protective order or other appropriate remedy;
3.5b2 Disclose only such information as is required by the governmental entity; and
3.5b2 Use commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
3.6 Notice of Unauthorized Use. You will notify Us immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, to the maximum extent permitted by law. You will cooperate with Us in every reasonable way to help Us regain possession of such Confidential Information and prevent its further unauthorized use.
3.7 Return and Destruction of Confidential Information. You will securely return or destroy all tangible materials embodying Confidential Information (in any form, including electronic materials, and including, without limitation, all summaries, copies, and excerpts of Confidential Information) promptly following Our written request. At Our option, You will provide written certification of Your compliance with this Section 3.
3.8 Injunctive Relief. You acknowledge that disclosure or use of Confidential Information in violation of this Agreement could cause Us irreparable harm for which monetary damages may be difficult to ascertain or an inadequate remedy. You therefore agree that We will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Section 3.
4.1 The intellectual property rights and obligations associated with Your use of the SAQ Offering are governed by Sections 6 through 9 of the General Terms.
4.2 You additionally agree to provide feedback reasonably requested by Us about to the SAQ Offering, including, for example, with respect to product, customer experience, and more (the “Feedback”).
4.3 You and We additionally agree that, to the fullest extent permitted by applicable law and notwithstanding any other provision in the Terms, each piece of Feedback will be owned exclusively by Us. You irrevocably transfer and assign to Us all right, title and interest in and to the Feedback, including all worldwide patent (including patent applications and disclosures), copyright, trademark, trade secret, know-how, and any other intellectual property or proprietary rights (collectively, the “Intellectual Property Rights”).
4.4 For the avoidance of doubt, the Intellectual Property Rights do not apply with respect to any Confidential Information of You as described herein, or to the content of any SAQ, or to the content of any Supporting Documents required to respond to such SAQ.
5.1 Pricing, invoicing, and billing rights and obligations are governed by Section 4 of the General Terms, including with respect to the Billing Policy incorporated therein.
5.2 In the event that You have entered into a duly agreed upon Sales Order with Us, then the rights and obligations described in that Sales Order shall govern, and any terms contained in that Sales Order which expressly conflict with the Terms shall supersede the Terms.
6.1 You warrant that You will (a) provide truthful and accurate information with respect to the SAQ(s) and any documentation or other materials you provide to facilitate the answering of such SAQs (the “Supporting Documents”), (b) not infringe, or otherwise misappropriate any intellectual property right or right of a third party, nor will You cause Us to do so.
6.2 You acknowledge and agree that (i) the SAQ Offering is an administrative content management service, not a security service; (ii) You assume all risk for any damage that may result from Your use the SAQ Offering; (iii) You understand and agree that You use the SAQ Offering Your own discretion and risk, and that the SAQ Offering is intended only to expedite responses to SAQ, and not to be relied upon without thorough internal review, and that (iv) You are solely responsible for any damage to Your property resulting from the use of the SAQ Offering.
6.3 EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APTIBLE DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. APTIBLE IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SAQ OFFERING. YOU ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR APPLICATION AND CUSTOMER DATA, EXCEPT WHERE BACKUP OR SECURITY CONTROLS ARE EXPRESSLY PROVIDED AS FEATURES OF THE SAQ OFFERING. APTIBLE DOES NOT WARRANT THAT THE OPERATION OF THE SAQ OFFERING WILL BE ERROR-FREE, TIMELY, OR UNINTERRUPTED. APTIBLE DOES NOT WARRANT THAT THE SAQ OFFERING WILL BE SECURE, EXCEPT AS EXPRESSLY DOCUMENTED. THE SAQ OFFERING IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. YOU UNDERSTAND THAT YOU USE THE SAQ OFFERING AT YOUR OWN DISCRETION AND RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SAQ OFFERING, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SAQ OFFERING, WILL CREATE ANY WARRANTY REGARDING ANY OF THE APTIBLE ENTITIES OR THE SAQ OFFERING THAT IS NOT EXPRESSLY STATED IN THESE SUPPLEMENTAL TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SAQ OFFERING AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SAQ OFFERING. YOU UNDERSTAND AND AGREE THAT YOU USE THE SAQ OFFERING, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SAQ OFFERING AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SAQ OFFERING), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SAQ OFFERING OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
7.1 IN NO EVENT WILL THE APTIBLE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SAQ OFFERING OR ANY MATERIALS OR CONTENT ON THE SAQ OFFERING, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY APTIBLE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE APTIBLE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SAQ OFFERING, OR OTHERWISE UNDER THESE SUPPLEMENTAL TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID BY YOU TO APTIBLE FOR ACCESS TO AND USE OF THE SAQ OFFERING IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The foregoing limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s intellectual property rights by the other party, or indemnification obligations.
8.1 Termination: Sections 3, 4, 5, 7 and 8 of these Supplemental Terms shall survive termination of the Terms for any reason. Unless you have a Sales Order or other contractual commitment with Aptible:
8.1a You may terminate these Terms at any time by canceling your account, and
8.1b We may, in our sole discretion for any or no reason, terminate the General Terms and/or these Supplemental Terms by canceling your account or any portion of your access to the SAQ Offering.
8.2 Dispute Resolution: Any claim arising out of or relating to this Agreement, or the breach accordingly, will be settled by arbitration pursuant to Section 19 of the General Terms. YOU UNDERSTAND AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
8.3 Governing Law: As described in Section 18 of the General Terms, these Terms will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles to the contrary.
8.4 Scope of Agreements: Both these Supplemental Terms as well as the General Terms govern your use of the SAQ Offering. Your use of any other Aptible product or service continues to be governed by the General Terms only, or, if any duly agreed upon mutual Master Subscription Agreement or Sales Order exists between Us and You, then by those agreements accordingly. Such written agreements, including the policies incorporated therein, constitute the entire agreement(s) between the parties. In the event of express conflict between such agreements, the terms of the Master Subscription Agreement, if applicable, shall govern, and supersede and replace all oral understandings, agreements, representations, terms, policies, documents, prior discussions and preliminary agreements. Except as otherwise expressly stated here, this Agreement and any schedules hereto may be amended or supplemented only in writing signed by the Parties.