aPriori Customer Terms and Conditions
(SaaS)

As used herein, “aPriori” means aPriori Technologies, Inc., with an address at 300 Baker Avenue, Concord, MA 01742, a Delaware (US) corporation, and its worldwide Affiliates. All Services and Professional Services provided by aPriori are subject to these aPriori Customer Terms and Conditions (“Terms”).

IMPORTANT: PLEASE CAREFULLY READ THIS ENTIRE DOCUMENT. THESE TERMS ARE EFFECTIVE ON THE DATE CUSTOMER FIRST SUBMITS AN ORDERING DOCUMENT FOR THE SERVICE OR PROFESSIONAL SERVICES, OR FIRST ACCESSES OR USES THE SERVICE (THE “Effective Date”), CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS READ, UNDERSTOOD, AND ACCEPTED THESE TERMS IN THEIR ENTIRETY, INCLUDING WITHOUT LIMITATION ALL DOCUMENTS ATTACHED HERETO AND/OR INCORPORATED HEREIN BY REFERENCE OR HYPERLINK, AND CONFIRMS AND AGREES THAT IT IS BOUND BY ALL TERMS AND CONDITIONS SET FORTH HEREIN.

1. Definitions.

“Affiliates” means a company or other business entity controlled by, controlling, or under common control with a party to this Agreement. “Control” means the direct or indirect ownership of greater than fifty percent (50%) of the voting rights or income interest in a company or other business entity.

“Confidential Information” means information disclosed by one party to the other under or in connection with these Terms that: (a) is designated by the disclosing party at the time of disclosure as being proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. aPriori’s Confidential Information includes without limitation any source code and technical or performance information about the Service.

“Customer” means the contracting entity identified in the initial Ordering Document. A Customer Affiliate may enter into a mutually executed Ordering Document that references these Terms. In such event: (i) the Customer Affiliate will be bound by these Terms and will be fully responsible for its liabilities and obligations under the applicable Ordering Document; and (ii) all references to “Customer” in these Terms will be deemed references to the Customer Affiliate named in the applicable Ordering Document for purposes of defining the rights and obligations of aPriori and the respective Customer Affiliate.

"Customer Data” means (i) all product-related data, content, materials, drawings, models, diagrams, designs, databases, parts, images, and other product information input by Customer to the Service (collectively “Product Data”), and (ii) any portion(s) of the Output that consist of Product Data.

“Data Processing Addendum” means the terms of aPriori’s data processing addendum, accessible at https://apriori.com/wp-content/uploads/2022/04/IGM.LGL_.02.v01.EN-aPriori-Customer-DPA-2021-002.pdf.

“Intellectual Property Rights” means rights in patented and unpatented inventions, patent applications, design rights, registered and unregistered copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other malicious code, files, scripts, agents or programs.

“Ordering Document” means (i) an ordering form signed by aPriori and Customer, or (ii) aPriori’s online ordering tool used by Customer to place an order, in either case that: (a) specifies the Service and, if applicable, the Professional Services to be provided to Customer under these Terms, (b) incorporates these Terms by reference, and (c) references any other applicable forms or Statements of Work relevant to the order.

“Output” means any output, information, data, materials, and/or results generated through Customer’s use of the Service.

“Professional Services” means certain consulting, implementation, technical services, and/or expert services provided by aPriori under these Terms, as described more fully in an Ordering Document.

“Service” means aPriori’s commercially available software-as-a-service applications and related Support Services provided to Customer by aPriori pursuant to these Terms. Professional Services and Output are not part of the Service.

“Service Level Agreement” or “SLA” means aPriori’s Service Level Agreement attached hereto as Exhibit A.

“Statement of Work” or “SOW” means a document executed by the parties that describes certain Professional Services purchased by Customer under these Terms. Each Statement of Work will be governed by these Terms.

“Subscriber” means a unique, identified individual who is authorized by Customer to use or access the Service and to whom Customer has provided unique login credentials necessary to access and use the Service. Unless otherwise specified in an Ordering Document, Customer must purchase a subscription to the Service for each Subscriber (a “Subscription”). Subscribers may include Customer’s employees and/or employees of Customer’s Affiliates, consultants, agents, and/or subcontractors. Customer will be responsible for its Subscribers’ use of the Service and compliance with these Terms.

“Subscription Term” means the period specified in the Ordering Document during which Customer’s Subscribers are authorized to use or access the Service pursuant to these Terms, unless earlier terminated pursuant to Section 10 below.

“Support Services” are defined in attached Exhibit B.

“User Guides” means aPriori’s standard user guides and technical documentation for the Service, as made available and updated by aPriori from time to time.

2. Service.

2.1 Provision of Service. aPriori will make the Service available to Customer for use during the Subscription Term by Subscribers pursuant to these Terms and all Ordering Documents, solely for Customer’s internal business purposes.

2.2 Named Subscribers. Unless specified otherwise in the Ordering Document, the Service is licensed for use by a unique individual as the Subscriber. An eligible Subscriber may access the Services with a unique username and password on one device at a time and Customer must acquire and dedicate a license for each separate Subscriber. Individual Subscribers may not share usernames, passwords, or licenses with other individuals. Customer may reassign Subscriptions from time to time to new Subscribers who replace former Subscribers who no longer access or use or the Service. Customer may not assign or reassign a Subscription to a particular Subscriber more frequently than once every 60 calendar days.

3. Obligations.

3.1 aPriori’s Obligations. aPriori will: (i) take all appropriate technical and organizational measures to maintain the security and integrity of the Service and the Customer Data in accordance with prevailing industry practices; (ii) provide Support Services to Customer in accordance with attached Exhibit B; (iii) comply with all applicable laws in providing the Service and Professional Services; and (iv) make the Service available in accordance with the SLA. aPriori reserves the right to monitor Customer’s use of the Service for security and technical support purposes, to confirm Customer’s compliance with applicable usage limitations, and otherwise as permitted under these Terms. aPriori reserves the right to update its support policies and/or the SLA, provided that any such updates do not materially diminish the support levels or SLA standards.

3.2 Customer’s Responsibilities. Customer is responsible for all activity that occurs in its Subscriber accounts and for its Subscribers’ compliance with these Terms. Customer will: (i) be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify aPriori promptly of any such unauthorized access or use; (iii) not introduce any Malicious Code; (iv) comply with all applicable laws while using the Service; and (v) not provide aPriori with any information that is personally identifying information subject to specialized security regulations, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”) and/or the standards promulgated by the PCI Security Standards Council (“PCI”). aPriori is not a “Business Associate” under HIPAA, and Customer shall not provide any protected health information to aPriori. Customer acknowledges that social security numbers, government identification numbers, credit card data, and similarly sensitive information are not required under this Agreement (including Customer's use of the Service) and Customer agrees not to provide aPriori with any such information.

3.3 Data Processing Addendum. If Customer’s use of the Service and/or Professional Services requires aPriori to process personal data pursuant to Regulation (EU) 2016/679 (the “GDPR”), or any other applicable data privacy laws or regulations, the Data Processing Addendum will govern such personal data and be incorporated into these Terms.

4. Fees and Payment.

4.1 Fees. Customer will pay all fees specified in all Ordering Documents. Customer may not decrease the number of Subscriptions ordered under an Ordering Document except as mutually agreed by the parties in a signed writing.

4.2 Invoicing and Payment. Except as otherwise specified in an Ordering Document, all fees and charges under these Terms will be invoiced in advance and paid in full net thirty (30) days from the invoice date.

4.3 Overdue Payments. Any payment not received by aPriori on or before the due date may, at aPriori’s option, incur late fees equal to the lesser of (i) 1.5% of the outstanding balance per month, or (ii) the maximum rate permitted by law, from the date such payment was due until the date paid.

4.4 Suspension of Service. If Customer fails to make timely payment of Subscription fees (except for charges then under reasonable and good faith dispute) and fails to cure such non-payment within 30 days of receipt of written notice of such from aPriori, then aPriori may, in its sole discretion, and in addition to any of its other rights or remedies, restrict or suspend Customer’s access to the Service until such amounts are paid in full.

4.5 Taxes. aPriori's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on aPriori's net income or property. If aPriori has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides aPriori with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required to deduct or withhold any tax in any non-US jurisdiction, Customer will pay the amount deducted or withheld as required by law and pay aPriori an additional amount such that aPriori receives payment in full as if there were no deduction or withholding. Customer agrees to hold harmless aPriori from all claims and liability arising from Customer’s failure to report or pay any applicable taxes.

5. License Grant; Ownership.

5.1 Access to Service. In exchange for payment of the fees listed on the Ordering Document, and subject to these Terms and any applicable Ordering Document(s), aPriori grants Customer a nonexclusive, worldwide, royalty-free, nontransferable, non-assignable (except as permitted in Section 12.6) right to access and use the Service solely for Customer’s internal business purposes during the Subscription Term. Customer will not alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to any Service, User Guide, or Work Product.

5.2 Reservation of Rights. Except for the limited rights expressly granted to Customer hereunder, no other license is granted and no other use is permitted. As between aPriori and Customer, aPriori owns and reserves all rights, title, and interests (including Intellectual Property Rights and all improvements, modifications, enhancements, and derivative works) in and to the Service, Professional Services, Work Product, and any portions of the Output that consist of aPriori’s preexisting intellectual property or constitute extensions or derivative works thereof.

5.3 Restrictions. Customer shall not (i) modify, copy, display, republish or create derivative works of or based on the Service; (ii) frame, scrape, link to or mirror any content forming part of the Service, other than on Customer's own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Service; (iv) access the Service or copy or use any aPriori Confidential Information to build a product, service or technology competitive with the Service; (v) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 12.6), distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Subscribers or as otherwise contemplated by these Terms; (vi) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (viii) upload to the Service or use the Service to send or store any Malicious Codes; (ix) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (x) attempt to gain unauthorized access to the Service or its related systems or networks.

5.4 Customer Data. As between aPriori and Customer, Customer retains ownership of all rights, title and interest in and to all Customer Data. Customer hereby grants aPriori a right and license to access, use, and process Customer Data, by itself or through its contractors and sub-processors, to: (i) provide the Service and Professional Services in accordance with these Terms; (ii) respond to and troubleshoot incidents under the Support Services or Service Level exhibits or otherwise at Customer’s direction or request; and, provided aPriori first aggregates and anonymizes the Customer Data (iii) test, develop, train, enhance, and/or improve the Service.

5.5 Protection and Security of Customer Data. aPriori will maintain a security program designed to protect the security, confidentiality, and integrity of Customer Data in accordance with industry standards and, if applicable, the controls set forth in the Data Processing Addendum.

5.6 Usage Statistics. In the course of providing the Service, aPriori may collect and use anonymized and aggregated statistical data, performance information, analytics, metadata, logs, traces, trends or similar information regarding the use and operation of the Services to improve the Service; provided, aPriori will not use such information in a manner that enables a third party to identify Customer.

5.7 Feedback; Ownership. Customer hereby grants to aPriori a perpetual, irrevocable, worldwide, royalty-free, transferable, sublicensable license to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Service. These Terms do not effectuate a sale and do not convey to Customer any rights of ownership in or related to the Service or any Intellectual Property Rights owned by aPriori or its suppliers. The aPriori name, the aPriori logo, and the product names associated with the Service are trademarks of aPriori or its suppliers, and unless expressly granted herein, no right or license is granted to use them. Customer will not accrue any residual rights to the Service, including any rights to the Intellectual Property Rights embodied therein.

5.8 Third Party and Open Source Software. Open source software (“OSS”) may be included in, embedded in, or provided with the Service. Any such OSS is licensed to Customer by the copyright holder of the OSS under the license terms applicable to that OSS and is not licensed by aPriori under these Terms. To the extent aPriori is required to (a) make certain disclosures regarding such OSS; (b) make available any source code to the OSS; and/or (c) make available any license terms applicable to the OSS, Customer may obtain such information by sending a written request to: aPriori Technologies, Inc., Attention: Legal Department, “Open Source Files Request”, at [email protected]. Any other third party owned software code embedded in the Service is subject to these Terms except where otherwise specifically indicated in the Ordering Document, in which case additional terms and conditions may apply. Licensor will not include in the Service any OSS that is subject to “copyleft” licensing terms.

6. Confidentiality.

With respect to the Confidential Information of the other party (a “Discloser”) each party (a “Recipient”) will:

(i) protect the Confidential Information against unauthorized access, use and disclosure using the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care); and

(ii) not use or disseminate or disclose the Confidential Information to any third party, except with Discloser’s prior written permission or as otherwise permitted in these Terms.

Either party may disclose Confidential Information on a need-to-know basis to its employees, agents, contractors, subcontractors, advisors, directors and service providers who are bound by confidentiality obligations at least as restrictive as those in this section. These restrictions will not prevent either party from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information. Recipient will promptly notify Discloser upon learning of any such legal requirement, and reasonably cooperate with Discloser in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. Discloser will have the right to seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.

7. Warranties and Disclaimers.

7.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms. aPriori warrants that during the Subscription Term: (i) the Service will perform materially in accordance with the applicable User Guides when used in accordance with these Terms and (ii) to the best of aPriori’s knowledge, the Service does not contain any Malicious Code. Customer warrants that it owns or otherwise has sufficient rights in or to the Customer Data to grant to aPriori the rights to use the Customer Data granted herein. aPriori’s warranties do not apply to Customer’s use of Services in breach of these Terms, in a sandbox or other non-production environment, as part of a proof-of-concept, or for evaluation purposes.

7.2 Remedies. As Customer’s exclusive remedy and aPriori’s entire liability for breach of the warranties set forth in Section 7.1(i) and (ii) above, aPriori will use commercially reasonable efforts to: (i) resolve any reproducible nonconformities in the Service so that it materially conforms to the applicable User Guides and, if applicable (ii) eliminate any Malicious Code without impairing the features and functionality of the Service. If aPriori is unable to provide either of the foregoing remedies, as applicable, within a commercially reasonable time following receipt of written notice of breach of warranty, Customer will be entitled to terminate the applicable Service and receive a refund of any prepaid, unused fees paid to aPriori for the nonconforming Service for the remaining portion of the Subscription Term.

7.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE, PROFESSIONAL SERVICES AND WORK PRODUCT ARE PROVIDED "AS IS" AND APRIORI, ITS SUPPLIERS, RESELLERS, AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnification.

8.1 Indemnification by aPriori. aPriori will defend Customer, at aPriori’s expense, against claims, demands, suits, or proceedings (“collectively, “Claims”) made or brought against Customer by a third party alleging that the Service infringes such third party’s Intellectual Property Rights and will indemnify Customer for any liability, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) that result from any such Claim (collectively, “Losses”); provided that Customer: (a) promptly gives written notice of the Claim to aPriori (although a delay of notice will not relieve aPriori of its obligations under this section except to the extent that aPriori is prejudiced by such delay); (b) gives aPriori sole control of the defense and settlement of the Claim (although aPriori may not settle any Claim unless it includes a provision releasing Customer from all liability); and (c) provides to aPriori, at aPriori’s cost, all reasonable cooperation, information and assistance. aPriori will have no liability for Claims or Losses to the extent arising from any: (i) any modification(s) to the Service not made by on behalf of aPriori; (ii) use of the Service in a manner inconsistent with these Terms or the applicable User Guides; (iii) use of the Service in combination with any other product, data or service not provided by aPriori where the Claim would not have occurred but for such combination; (iv) Output; (v) code generated by artificial intelligence; or (v) any settlement aPriori does not agree to in writing. If Customer is enjoined from using the Service, or aPriori reasonably believes Customer will be so enjoined, aPriori will at its option either obtain for Customer the right to continue using the Service or replace or modify the Service so that it is no longer infringing without materially diminishing its functionality. If neither of the foregoing options is commercially feasible, then either party may terminate these Terms and, in addition to the indemnification obligations set forth above in this Section 8.1, aPriori will refund any fees prepaid by Customer for the unused Service.

8.2 Indemnification by Customer. Customer will defend aPriori, at Customer’s expense, against any Claims made or brought against aPriori by a third party alleging that Customer Data infringes, misappropriates, or otherwise violates such third party’s Intellectual Property Rights. Further, Customer will indemnify aPriori for all liability, damage, or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) that result from any such Claims. Promptly upon receiving notice of a Claim, aPriori will: (a) give written notice of the Claim to Customer (although a delay of notice will not relieve Customer of its obligations under this section except to the extent that Customer is prejudiced by such delay); (b) give Customer sole control of the defense and settlement of the Claim (although Customer may not settle any Claim unless it unconditionally releases aPriori of all liability); and (c) provide to Customer, at Customer’s cost, all reasonable cooperation, information assistance.

8.3 Exclusive Remedy. This section 8 sets forth the parties’ sole liability and exclusive remedies regarding third party Claims of infringement.

9. Limitation of Liability.

9.1 Limitation of Liability. EXCEPT AS PROVIDED BELOW IN SECTION 9.3, IN NO EVENT SHALL EITHER PARTY'S OR ITS AFFILIATES’ OR LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID TO APRIORI UNDER THE APPLICABLE ORDERING DOCUMENT FOR SERVICE AND/OR PROFESSIONAL SERVICES PROVIDED BY APRIORI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. CUSTOMER’S OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT) ARE NOT LIMITED BY THIS SECTION 9.1.

9.2 Exclusion of Consequential and Related Damages. EXCEPT AS PROVIDED BELOW IN SECTION 9.3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES OR LICENSORS FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Exceptions and Super Cap. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTIONS 9.1. AND 9.2 DO NOT APPLY TO (I) CUSTOMER’S BREACH OF SECTION 5.3, (II) EITHER PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (III) LOSSES PAYABLE PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, (IV) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR (V) APRIORI’S LIABILITY FOR A BREACH OF PERSONAL DATA UNDER THE DATA PROCESSING ADDENDUM. NOTWITHSTANDING THE FOREGOING, AGGREGATE LIABILITY RESULTING FROM EITHER PARTY’S BREACH OF SECTION 6 AND/OR APRIORI’S LIABILITY FOR A PERSONAL DATA BREACH IS SUBJECT TO A SUPER CAP EQUAL TO THE LESSER OF (A) TWO TIMES (2X) THE AMOUNTS CUSTOMER PAID TO APRIORI FOR THE SERVICES AND PROFESSIONAL SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT OUT OF WHICH THE LIABILITY AROSE, 0R (B) $2,000,000 US DOLLARS.

10. Term and Termination.

10.1 Term. These Terms commence on the Effective Date and remain in effect until all Subscriptions granted and Ordering Documents executed in accordance with these Terms have expired or been terminated.

10.2 Term of Subscriptions. Subscriptions commence on the start date specified in the relevant Ordering Document(s) and continue for the Subscription Term specified therein.

10.3 Termination for Cause. A party may terminate these Terms or an Ordering Document for cause if the other party is in material breach of these Terms and fails to cure such breach within thirty (30) days of receipt of written notice of such material breach from the non-breaching party.

10.4 Termination Based on Financial Condition. Either party may terminate these Terms by delivering written notice to the other party if the other party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is dismissed within sixty (60) days.

10.5 Termination and Payment. Upon termination or expiration of these Terms, Customer’s and its Subscribers’ right to access and use the Service immediately ceases and Customer and its Subscribers will immediately cease all use of the Service. Except as otherwise specified in these Terms, termination will not preclude a party from seeking any other remedies available under law or in equity. Termination will not relieve Customer of the obligation to pay all amounts due under all Ordering Documents. Notwithstanding the foregoing, if Customer terminates these Terms due to aPriori’s material uncured breach of its obligations hereunder, aPriori will refund to Customer any prepaid unused fees for the terminated portion(s) of these Terms and any applicable Ordering Document(s).

10.6 Customer Data Upon Termination or Expiration. Upon Customer’s written request received by aPriori within 30 days of expiration or termination of these Terms, aPriori will provide commercially reasonable, industry-standard assistance to Customer to facilitate the transfer of Customer Data to Customer or its designee. aPriori has no obligation to retain Customer Data for more than 30 days after expiration or termination of these Terms.

10.7 Surviving Provisions. The following provisions survive any termination or expiration of these Terms: Sections 1, 3, 4, 5.2 - 5.8, 6, 7.3, 8, 9, 10, 11.3, 11.4, and 12.

11. Professional Services.

11.1 Professional Services. aPriori will provide Professional Services if and as specified in the Ordering Document and/or Statement of Work in accordance with the terms and conditions of this Section 11.

11.2 Professional Services Warranty. aPriori warrants that Professional Services will conform in all material respects to the specifications set forth in the applicable Ordering Document and/or SOW. This warranty applies only if Customer reports the alleged deficiency to aPriori in writing within thirty (30) days of aPriori’s initial performance of the deficient Professional Services. For any breach of the above warranty, aPriori will provide no-cost remedial services necessary to enable the Professional Services to conform to the warranty or, if such remedial services are unsuccessful, refund amounts paid to aPriori for the deficient Professional Services. Customer will provide aPriori with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The foregoing are Customer’s sole and exclusive remedies for breach of the warranty set forth in this paragraph.

11.3 Work Product. As used in this Section 11.3, “Work Product” means any deliverables, programs, code, interfaces, modifications, derivative works, configurations, reports, analyses, or documentation developed or delivered by aPriori or its subcontractor(s) in the performance of Professional Services. aPriori will exclusively own all rights, title and interests (including all Intellectual Property Rights) in and to the Work Product, excluding any Customer Data and/or Customer Confidential Information that may be included in the Work Product. Subject to these Terms, and during the applicable Subscription Term, aPriori hereby grants to Customer a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 12.6 of these Terms) license to use the Work Product solely for Customer’s internal operations in connection with its authorized use of the applicable Service.

11.4 General Methodologies. aPriori will not be restricted from using general underlying methodologies or techniques learned or used while performing, or developed during the performance of, any Professional Services.

11.5 Staff Assignment. aPriori will have sole discretion in staffing the Professional Services and may assign the performance of any portion of the Professional Services to a subcontractor(s) working on aPriori’s behalf; provided that aPriori shall (i) be responsible for the performance of and all acts of the subcontractor(s), (ii) ensure all subcontractors have the expertise to perform the relevant Professional Services, (iii) ensure all such subcontractors are bound by confidentiality obligations no less protective than those in these Terms, and (iv) for performance of Professional Services onsite at Customer’s facilities, ensure such subcontractors abide by all Customer onsite policies and rules.

12. General Provisions.

12.1 Export Control. Neither party will export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with these Terms without first complying with all relevant export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business, and shall not cause the other party to violate the same.

12.2 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.3 Notices. Except as specified in Section 3.1, all notices required to be sent hereunder must be in writing and will be deemed to have been given upon (i) the date of delivery by a generally recognized commercial courier service (e.g., FedEx, UPS, USPS, DHL, etc.), or (ii) if sent by certified mail return receipt requested, on the date received, in each case addressed to the addresses set in the most recent Ordering Document, if to aPriori, to the attention of Legal Department, and, if to Customer, to the attention of the signatory of the most recent Ordering Document, or to such other address or individual as either party may specify from time to time by written notice to the other party.

12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.5 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in full force and effect.

12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety (including all Ordering Documents) without the consent of the other party to any successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Notwithstanding the foregoing, if a party is acquired by, acquires, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate these Terms upon written notice. Any attempt by a party to assign its rights or obligations under these Terms in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.7 Governing Law. These Terms and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to its conflicts of laws rules. All proceedings shall be conducted in English. Exclusive jurisdiction and venue for all proceedings shall be the state or federal courts in Boston, Massachusetts, and both parties submit to the personal jurisdiction of such courts. Each party hereby waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine, provided that either party may seek injunctive relief in any court of competent jurisdiction. Neither the United Nations Convention for the International Sale of Goods nor the Uniform Computer Information Transactions Act apply to this Agreement or any transactions hereunder. The prevailing party in any action under these Terms will be entitled to recover its costs and attorneys’ fees from the other party. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.

12.8 Force Majeure. Neither party shall be liable for any failure or delay in its performance under these Terms (except for a failure to pay fees) due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, epidemic, governmental act, or failure of the internet not resulting from the actions or inactions of the parties (collectively, a “Force Majeure Event”), provided that the delayed party: (i) gives the other party prompt notice of such Force Majeure Event, and (ii) uses commercially reasonable efforts to promptly correct such failure or delay in its performance.

12.9 Publicity. Press releases or other similar public communications by either party relating to these Terms, except communications required for compliance or regulatory purposes, must be approved in advance by the other party.

12.10 Federal Government End Use Provisions. aPriori provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in these Terms, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to these Terms specifically granting those rights.

12.11 Entire Agreement. These Terms, including all exhibits and addenda attached hereto or included by hyperlink, all Ordering Documents and, if applicable, the Data Processing Addendum, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements (including non-disclosure agreements), proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of these Terms, express or implied, except for the representations and warranties expressly set forth in these Terms. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by an authorized representative of the party against whom the modification, amendment or waiver is being asserted. To the extent of any conflict or inconsistency between the provisions in the main body of these Terms and any exhibit or addendum hereto, any document referenced herein by hyperlink, or any Ordering Document, the terms of such exhibit, addendum, Ordering Document, or linked document, will prevail. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary these Terms, and all such terms or conditions shall be null and void.

 

Exhibit A
Service Level Agreement

aPriori will provide at least 99% “Service Availability” for Customer’s in-production accounts during each calendar quarter (the “Measurement Period”). “Service Availability” means the uptime of the Service and is calculated as set forth in Table 1 below:

Table 1

Planned Service Availability	Available Time in Measurement Period minus Excluded Downtime
Actual Service Availability	Planned Service Availability minus Unplanned Downtime
Service Availability Level (%)	Actual Service Availability divided by the Planned Service Availability x 100
Unplanned Downtime Percentage	100 x (Unplanned Downtime divided by Planned Service Availability)

Definitions:

Excluded Downtime means: (a) Scheduled Maintenance (as defined below); (b) Emergency Maintenance (as defined below); (c) a Force Majeure Event; or (d) network intrusions or denial of service attacks. Service Availability does not apply to sandbox, proofs of concept, or evaluation accounts.

Unplanned Downtime means a period of time measured in minutes (except for Excluded Downtime as defined above) during which the aPriori Service is unresponsive, resulting in Subscribers being denied access or experiencing unavailable access.

Scheduled Maintenance means a single maintenance event scheduled in advance by aPriori. aPriori typically performs Scheduled Maintenance during non-business hours Eastern Time but reserves the right to perform additional or different Scheduled Maintenance as warranted.

Emergency Maintenance means a maintenance event that aPriori reasonably determines to be necessary to cure or prevent a condition that might result in downtime. aPriori will schedule the Emergency Maintenance as soon as practicable under the circumstances, with the goal of limiting disruption while minimizing risk. aPriori will post a notice of the upcoming Emergency Maintenance on the login page and take all commercially reasonable steps in accordance with customary industry practice to limit the duration of the Emergency Maintenance.

Notices. aPriori will use commercially reasonable efforts to notify Customer at least twenty-four (24) hours prior to any Scheduled Maintenance to minimize the effect of such maintenance on the aPriori Service and as soon as practicable for any Emergency Maintenance or any known and verified Unplanned Downtime.

Remedies. aPriori’s entire liability and Customer’s exclusive remedy for any breach of the Service Availability shall be a credit for the Measurement Period during which such breach of obligation occurred, which shall be equal to the Service fees for Measurement Period multiplied by the Unplanned Downtime Percentage. Credits will be applied against future fees due under these Terms. No credit will apply if Customer fails to make a written request for a credit under this provision within ten (10) business days of the Unplanned Downtime. Requests for Credits must be made and logged via email to the aPriori Support Center at https://support.apriori.com/.

 

Exhibit B
Support Services

Subject to the Terms and the Ordering Document entered into by the parties, the following terms and conditions govern the provision of aPriori’s Support Services to Customer. aPriori will address Incidents which may arise from Customer’s use of the Service in accordance with the terms and conditions forth below.

1. DEFINITIONS: Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the in the Terms or Ordering Document. Other capitalized terms used herein shall have the respective meanings set forth below:

“Alternative Solution” means a solution or correction to an Incident that enables the Service to function substantially in accordance with the User Guides.

“Authorized Contacts” means the named Customer Subscribers, employees or authorized agents who: (i) have sufficient technical expertise, training and/or experience with the Service to perform the Customer’s obligations under these Support terms; (ii) are responsible for all communications with aPriori regarding these Support terms, including case submission and Incident reports; and (iii) who are authorized by Customer to request and receive Support Services on behalf of Customer.

“Incident” means a reproducible failure of the Service to substantially conform to the functions and/or specifications of the User Guides.

“Response Time” means the targeted time period within which aPriori will contact Customer to acknowledge receipt of an Incident report and assign an appropriately skilled support resource, commencing from the time that aPriori receives all required information as specified in Section 5 below. Response Times are measured during Standard Support Hours.

“Support Services” or “Support” means technical support for the Service made available to Customer as part of the Service fee. Customer acknowledges that aPriori may designate or consult third parties, including its third party software providers or distributors, OEMs, or VARs to provide any of the Support, provided aPriori remains responsible to Customer for the performance of all Support.

“Standard Support Hours” means Monday through Friday, 4:00 am to 6:00 pm Eastern Time, excluding aPriori holidays.

2. SUPPORT TERM: Support commences on the Effective Date specified in the applicable Ordering Document and continues for the term specified in the Ordering Document.

3. SUPPORT CHANNELS: aPriori will provide reasonable support for issue determination and resolution during Standard Support Hours for issues involving the aPriori Service.

4. SUPPORT WEB SITE: aPriori maintains the aPriori Support Center at https://support.apriori.com/. Support requests can be submitted through a Support Form on this site. Use of the aPriori Support Center shall be subject to the terms posted at such web site.

5. INCIDENT RESOLUTION: aPriori will make commercially reasonable efforts to correct reproducible Incidents in the Service as provided by aPriori in accordance with the following:

5.1 Acknowledgement -- Consists of an acknowledgement to Customer, as to the receipt of the problem as reported and a confirmation of the problem severity. aPriori will begin the process of problem determination and resolution at this point.

5.2 Status Updates -- Consists of regular communications concerning the status of the problem determination and resolution.

5.3 Resolution -- Consists of providing, as determined by aPriori, one of the following to Customer: an existing correction, a new correction, a viable detour or Alternative Solution, or a plan on how the problem will be corrected.

5.4 Closure -- Consists of providing, as determined by aPriori, a final correction or Alternative Solution of the Incident including as applicable, revised User Guides.

5.5 Severity Re-classification -- If Customer determines that a previously reported and in progress Incident’s severity needs to be re-classified or escalated, Customer must comment accordingly on the existing ticket.

6. CUSTOMER RESPONSIBILITIES: aPriori’s provision of Support to Customer is subject to and conditioned upon the following: (a) aPriori having access to Customer’s systems as necessary to provide the Support; (b) Customer providing aPriori with all reasonably necessary assistance, Customer Data, and information; (c) Customer appointing a reasonable number of Authorized Contacts and providing appropriate contact information for all such Authorized Contacts; (d) Customer utilizing aPriori’s knowledge base whenever practicable for self-help research of known solutions, (e) Customer utilizing aPriori incident reporting portal to log all incident cases, and (g) Customer properly training its personnel in the use and application of the Service.

7. SEVERITY LEVELS AND RESPONSE TIME GOALS

Severity	Description	Response Time Target	Resolution
Mission Critical – Severity 1	An Incident during which the Service is completely unavailable such that Customer is unable to use the Service for production purposes. Severity 1 applies only to systems in production and cannot be assigned to systems in a Beta or test deployment phase.	4 business hours during Standard Support Hours	Constant engagement by development team until issue is resolved to level required for resumed production use. Case resolved expeditiously with a Service update or Alternative Solution.
Critical – Severity 2	An Incident during which one or more critical functions of the Service are unavailable with no Alternative Solution. Customer's implementation or production use of the Service is not completely disabled; however, there is a serious impact on Customer's ability to use the Service in accordance with the relevant User Guides.	1 business day during Standard Support Hours	Constant engagement by development team until issue diagnosed. Case resolved with Service update or Alternative Solution.
Standard Non-Critical Severity 3	An Incident during which: (a) important Service features are unavailable but an Alternative Solution is available, or (b) less significant Service features are unavailable with no reasonable Alternative Solution.	1 business week during Standard Support Hours	Engagement as necessary by development team to understand and diagnose issue. Case resolved in a regularly scheduled Service update, subsequent Service update, or via available Alternative Solution.
Minor issue Severity 4	An Incident that has a minimal impact on business operations or basic functionality of the Service.	As required for understanding.	Engagement as necessary by development team to understand and diagnose the issue. Incident resolved as part of a future regularly scheduled update or in a subsequent version.
Enhancement	Request for extension of current functionality or new functionality.	As required for understanding.	Response by aPriori Product Management team as necessary to understand the enhancement request. Issue considered as part of normal product planning for future releases.

EXCLUSIONS: aPriori is not obligated to provide Support Services in connection with any modifications, enhancements or extensions of the Service not provided by aPriori as part of a generally available standard Service update or new release. Furthermore, aPriori is not obligated to correct any Incident caused by any use of the Service not authorized by the Terms.