These Terms and Conditions of Use govern Your use of ApprentiScope. Your use of ApprentiScope and payment of ApprentiScope fees constitutes your agreement to these Terms and Conditions of Use. If you do not agree with any of these Terms and Conditions of Use, then do not use ApprentiScope.
“You”, “Your” or “Customer” refers to your organization, any affiliated organizations, and any employees, contractors, interns, and apprentices that use ApprentiScope.
“Fees” means the money paid to use ApprentiScope.
“Documentation” means the printed or electronic instructions for use provided by ApprentiScope for the use of ApprentiScope Software.
“Error” means a material failure of the ApprentiScope Software to operate substantially in accordance with the Documentation.
“ApprentiScope Software” means the software application(s) that ApprentiScope licenses or otherwise makes available to You under these Terms and Conditions.
“Support Services” means remote electronic access to correct Errors reported by Users and provide answers to questions from Users related to the use and operation of the ApprentiScope Software.
“Update” means any update to the ApprentiScope Software that ApprentiScope commercially releases to its Customers generally during the term of these Terms and Conditions and is not an Upgrade.
“Upgrade” means any new version or major release of the ApprentiScope Software that adds functionality, features or other enhancements or improvements and is released to Customers upon the payment of additional fees.
“Users” means Customer’s employees, contractors or agents who are authorized to use the ApprentiScope Software and have been supplied user identifications and passwords by Customer or by ApprentiScope through Customer’s direction.
2. Use of ApprentiScope Software.
2.1 Provision of ApprentiScope Software.
ApprentiScope will make the ApprentiScope Software available to Customer and will take commercially reasonable steps consistent with industry standards to maintain the security of the ApprentiScope Software and access to its functions. ApprentiScope will use commercially reasonable efforts to make the ApprentiScope Software generally available 24 hours a day, seven days a week, excluding: (a) any regularly scheduled or planned downtime; (b) downtime caused by circumstances beyond ApprentiScope’s reasonable control, including for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, internet service provider failure or delay; or (c) issues due to Customer’s breach of its obligations under these Terms and Conditions or violation of any applicable law.
2.2 Support Services.
ApprentiScope will provide Support Services to Customer and its Users in accordance with their Support Service Policy. ApprentiScope will take commercially reasonable steps to ensure Customer and its Users have access to all functions set forth in applicable specifications. Support Services do not include on-site support. Notwithstanding anything in these Terms and Conditions to the contrary, in no event will ApprentiScope have any support or other obligation for errors resulting from (a) misuse, accident or neglect by Customer or Customer’s Users, (b) the unavailability of, or latencies attributable to, Customer’s network(s), the Internet or other telecommunications infrastructure, or (c) use of the ApprentiScope Software in a manner not specified in the Documentation.
2.3 Updates and Upgrades.
ApprentiScope will make available to Customer any Update to the ApprentiScope Software when ApprentiScope makes such Update generally available to other Customers during the term this agreement is in effect. Upgrades may be available for an additional cost.
3. Customer Responsibilities.
3.1 Customer Access and User IDs.
Customer will ensure that only Users use the ApprentiScope Software, and they do so in accordance with the terms of these Terms and Conditions. Each User will be assigned a unique User identification name and password for access to and use of the ApprentiScope Software (“User ID”). User IDs may not be shared or used by more than one User. Customer may terminate User IDs at any time and assign a new User ID within Customer’s total number of licensed Users. Customer is responsible for the security and confidentiality of User IDs, including any lost, misappropriated or misused User ID information. In addition, Customer is responsible for all activities (whether lawful or unlawful) that occur through any User ID. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data input through any Customer User ID; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the ApprentiScope Software, and promptly notify ApprentiScope of any unauthorized access or use; and (c) comply with all applicable local, state, provincial and federal laws regarding the use of the ApprentiScope Software, including, without limitation, any applicable laws relating to data protection, privacy, and security. Customer acknowledges and agrees that any breach of these Terms and Conditions by anyone using a User ID attributed to Customer shall be a breach of these Terms and Conditions by Customer.
3.2 Usage Restrictions.
Customer shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the ApprentiScope Software available to any third party, other than as contemplated by these Terms and Conditions; (b) send to ApprentiScope or cause to be sent to ApprentiScope or store on any computer that is used to access the ApprentiScope Software any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates any third party rights including privacy rights; (c) send to ApprentiScope (or cause to be sent to ApprentiScope) or store on any computer or mobile device that is used to access the ApprentiScope Software material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the ApprentiScope Software or the data contained therein; (e) attempt to gain unauthorized access to the ApprentiScope Software or its related networks; or (f) conceal or remove any title, trademark, copyright, proprietary or restricted rights notice contained in the ApprentiScope Software. Customer shall not (i) download, reproduce, copy, alter, adapt, modify, improve, enhance, translate, or create derivative works based on the ApprentiScope Software or any other ApprentiScope Technology (as defined below); or (ii) disassemble, reverse engineer, decompile, or otherwise attempt to reveal the code, trade secrets or know-how underlying the ApprentiScope Software or any other ApprentiScope Technology for any reason, or access the ApprentiScope Software for any purpose other than as authorized by these Terms and Conditions including: (A) building a competitive product or service, (B) building a product or service using features, functions or graphics similar to the ApprentiScope Software, or (C) copy any features, functions or graphics of the ApprentiScope Software.
4. Fees and Payment.
4.1 Customer agrees to pay all Fees when due.
4.2 Suspension of Service.
If Customer’s Fees are overdue, in addition to any of its other rights or remedies, ApprentiScope reserves the right to suspend Customer’s access to the ApprentiScope Software and the provision of Support Services until such Fees are paid in full.
Unless otherwise stated, ApprentiScope’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes related to Customer’s access to and/or use of the ApprentiScope Software, or arising out of or in connection with these Terms and Conditions. If ApprentiScope has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be charged to and paid by Customer.
5. Proprietary Rights.
5.1 Reservation of Rights.
Customer acknowledges that in providing the ApprentiScope Software, ApprentiScope uses (a) the ApprentiScope name, the ApprentiScope logo, the ApprentiScope domain name, the product and service names associated with the ApprentiScope Software, and other trademarks and service marks; (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “ApprentiScope Technology”) and that ApprentiScope owns or licenses patent rights, trademark rights, copyrights and other intellectual property rights forming part of or used in connection with the ApprentiScope Technology (collectively, “ApprentiScope IP Rights”). Other than as expressly set forth in these Terms and Conditions, ApprentiScope does not grant or otherwise convey any license or other right in or to the ApprentiScope Technology or ApprentiScope IP Rights to Customer. ApprentiScope expressly reserves all rights to the ApprentiScope Technology and ApprentiScope IP Rights not expressly granted under these Terms and Conditions. There are no implied licenses under these Terms and Conditions.
5.2 License to Use Feedback.
Customer hereby grants to ApprentiScope a worldwide, perpetual, irrevocable, royalty-free, fully-paid up license to use and incorporate into the ApprentiScope Software, ApprentiScope Technology and ApprentiScope IP Rights any suggestion, enhancement request, recommendation, form design, correction or other feedback provided by Customer or Users.
6.1 Definition of Confidential Information.
“Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood by Receiving Party to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of these Terms and Conditions, any Customer data, ApprentiScope data, the ApprentiScope Software, ApprentiScope Technology, business and marketing plans, technology and technical information, product designs, business and analytical processes, and pricing models. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party. The burden of proving these exceptions to the confidentiality and use provisions of these Terms and Conditions resides with the Receiving Party.
6.2 Protection and Non-Disclosure.
Receiving Party agrees to protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that Receiving Party protects the confidentiality of its own proprietary and confidential information, but in no event shall Receiving Party exercise less than reasonable care in protecting Disclosing Party’s Confidential Information. Receiving Party shall: (a) not disclose or use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of these Terms and Conditions; (b) unless otherwise permitted by Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to those of Receiving Party’s employees, contractors and agents who need access for purposes consistent with these Terms and Conditions and who are subject to confidentiality obligations with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
6.3 Compelled Disclosure.
If Receiving Party is compelled by law to disclose any portion of Disclosing Party’s Confidential Information, it shall provide Disclosing Party with prompt prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party contests the disclosure.
If Receiving Party discloses or uses (or threatens to disclose or use) any of Disclosing Party’s Confidential Information in breach of this Section 6, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of a bond or other assurance, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6.5 Customer List.
ApprentiScope will have the right to include Customer on ApprentiScope’s list of Customers for inclusion on ApprentiScope’s website, sales collateral and other marketing materials.
6.6 Intellectual Property.
Customer will retain ownership of all Customer-owned intellectual property irrespective of its placement on ApprentiScope.
6.7 Data Privacy.
7. No Warranties; Disclaimers.
ACCESS TO AND USE OF THE APPRENTISCOPE SOFTWARE IS PROVIDED “AS IS” AND “WHEN AVAILABLE” WITHOUT ANY WARRANTIES WHATSOEVER. APPRENTISCOPE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. APPRENTISCOPE DOES NOT WARRANT THAT (A) THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE OR THAT APPRENTISCOPE WILL CORRECT ALL ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH NON-APPRENTISCOPE APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR APPROVED BY APPRENTISCOPE, OR (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT APPRENTISCOPE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. APPRENTISCOPE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THOSE PROBLEMS.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF APPRENTISCOPE (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY MEMBER TO APPRENTISCOPE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPRENTISCOPE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS OR THE LIKE) ARISING UNDER THIS AGREEMENT, OR RELATED TO THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF APPRENTISCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APPRENTISCOPE AND YOU.
9. Term & Termination.
9.1 Term of Agreement.
The term of Your access to the ApprentiScope Software continues so long as You continue to pay the applicable fees.
9.2 Mutual Termination Right.
Either party may terminate Your access to the ApprentiScope Software for cause if (a) the other party breaches these Terms and Conditions and the breach is not cured within 30 days after receipt of written notice of the breach, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. ApprentiScope may terminate these Terms and Conditions immediately if Customer violates a confidentiality or license limitation provision.
9.3 Effect of Termination.
a) In no event will termination relieve Customer of its obligation to pay any fees due to ApprentiScope for the period prior to the effective date of termination.
b) Upon termination of these Terms and Conditions, all access rights granted by ApprentiScope will immediately terminate, and ApprentiScope will promptly cease providing the ApprentiScope Software.
9.4 Surviving Provisions.
The following provisions shall survive the termination of these Terms and Conditions for any reason and shall remain in effect after any such termination: Sections 1, 5 (to the extent any fees remain payable), 6, 7, 8, 9, and 10.
10. General Provisions.
10.1 Relationship of the Parties.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing herein shall cause either party to be deemed an advisor or fiduciary of the other party. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.
10.2 No Benefit to Others.
Except as expressly stated in these Terms and Conditions, the representations, warranties, covenants, and agreements contained in these Terms and Conditions are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
All notices under these Terms and Conditions shall be in writing and shall be delivered to ApprentiScope at 370 Shelburne Road, Suite 4, Burlington, VT 05401 or to You at the notice that you provide to ApprentiScope or by electronic mail to the address for either party on file with the other and shall be effective if no bounce back message is sent.
10.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under these Terms and Conditions 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.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law or otherwise void, the provision shall be modified by the court and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign these Terms and Conditions together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under these Terms and Conditions in breach of this section shall be void and of no effect and shall entitle the non-assigning party to terminate these Terms and Conditions for the cause. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
10.7 Governing Law.
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Vermont, without regard to its conflicts of law provisions.
10.8 Except for proceedings seeking only equitable relief, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party may bring claims against the other only in its individual capacity and not as a class member in any representative action. Claims shall be heard by a single arbitrator. The place of arbitration shall be Burlington, Vermont. Each party will, upon the written request of the other party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in-person hearings and the arbitrator shall order the use of virtual or electronic hearing venues whenever possible. Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. The Arbitrator shall agree to these limits prior to accepting an appointment. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator may determine how the costs and expenses of the arbitration shall be allocated between the parties, but they shall not award attorneys' fees. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such an event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
The state and federal courts located in Chittenden County, Vermont shall have jurisdiction to adjudicate any dispute arising out of or relating to these Terms and Conditions. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non convenes or otherwise.
10.10 Export Control Laws.
You agree to comply with all United States and foreign import and/or export control laws or regulations applicable to the use of the ApprentiScope Software.
10.11 Force Majeure.
Except for obligations to make payment, neither party shall be liable for any failure to perform or delay in performing any obligation under these Terms and Conditions if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, component or materials shortage or any other cause beyond the reasonable control of such party.
10.12 Entire Agreement.
This Agreement constitutes the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of these Terms and Conditions. No modification, amendment, or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by both parties.