The affirmative act of clicking accept, using our products and/or Solution (the "Solution") and/or executing an Order with appNovi, Inc., together with its affiliates and subsidiaries, ("appNovi", "us", "our", or "we" ) or our authorized partner means you accept and agree to be bound by this Agreement as of that date (the "Effective Date"). If you are entering into this Agreement on behalf of another legal entity, you represent that you have the authority to bind such entity to these terms and conditions. If you do not have such authority or do not agree to these terms and conditions, DO NOT CLICK ACCEPT OR ACCESS THE SOLUTION.  You and any entity you have the authority to bind, "Customer."

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. Please carefully review Section 14.13 of this Agreement for more information.

1. The Solution.
We offer this Solution to you as an informational tool only. The design and function of the Solution and its contents, user interface, layout and presentation, and data relating to your use of the Solution, and other material contained in the Solution ("appNovi Content") are for informational purposes only.  The Solution may be operated by appNovi, an affiliate, or by one or more third parties under agreement(s) with appNovi.  

2. License to the Solution.
During the Term and subject to Customer's compliance with this Agreement, the Documentation, and all applicable laws and regulations, appNovi hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Solution, appNovi Content, and Documentation solely for Customer's internal business purposes, and solely as described in this Agreement. Customer will, and will ensure that its Authorized Users will, comply with the terms and conditions contained herein. If the Solution includes software to be installed in Customer's desktop environment, Customer is hereby granted a non-exclusive, limited, and non-transferable license to use such software for the purpose of using the Solution. Such license will terminate upon the expiration or termination of the Solution Term. 

3. Customer Obligations. 
  3.1 Access. Each Authorized User of Customer will be given a unique identifier (an "Access Code") to be used to access the Solution. Customer is responsible for maintaining (including the confidentiality of) the Access Codes and will be solely liable for all activities that occur under such Access Codes or arising from Customer's instruction in connection with the disclosure of the Access Codes. Customer is responsible for: a) its own network, infrastructure, and systems; installation, testing, security, and operations of facilities, telecommunications, and internet and mobile apps, equipment, and software necessary for Customer's use and access of the Solution; b) ensuring that only Authorized Users access the Customer's account; c) promptly notifying appNovi by email to [notice@appnovi.com] of any known or suspected unauthorized use(s) of Customer's account; and d) maintaining the confidentiality of your username and password and remaining fully responsible for all activities that occur under Customer's username and password. Customer understands and agrees that the Solution will automatically log Customer out of its account after a period of inactivity. 
  3.2 Information Security. Customer represents and warrants that it has implemented and maintains an information security program which shall include appropriate administrative, technical and physical safeguards reasonably designed to: (i) ensure the security and confidentiality of the Solution; (ii) protect against any anticipated threats or hazards to the security or integrity of the Solution; (iii) protect against unauthorized access to or use of appNovi Confidential Information; and (iv) ensures disposal of appNovi Confidential Information in a secure manner.  

4. Customer Prohibitions. 
Customer agrees that when accessing the Solution Customer will not: a) delete, modify, hack, or attempt to change or alter any of the appNovi Content or information or features; b) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Solution, servers, or networks connected to the Solution or take any other action that interferes with any other person's use of Solution; c) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information from the Solution for any reason; d) copy, modify, create derivative works, reverse engineer, decompile, disassemble, tamper with, or otherwise attempt to learn the source code, structure, or ideas upon which the Service are based; e) introduce into the Solution any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to disable, erase, or otherwise harm the Solution or appNovi Content, or perform any such actions; f) introduce into the Solution any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; g) use any appNovi Content made available through the Solution in any manner that misappropriates any trade secret or  infringes any copyright, trademark, patent,  rights of publicity, or other proprietary right of any party; h) access or attempt to access any other person's information or content; i) decrypt, transfer, frame, display, or translate any part of the Solution; j) connect to or access any appNovi computer system or network without authorization; or k) use the information in the Solution to create or sell a similar service or similar information.

5. Customer's Data. 
Any change or update made to a Customer's account, including text, images, messages, files and/or other materials Customer uploads, runs through, posts, transmits through, or links to or from the Solution (collectively, "Customer Data") is Customer's sole responsibility. appNovi does not have access to any Customer Data and does not review the Customer Data for its accuracy, applicability, appropriateness or ownership. Customer represents and warrants that it has all rights necessary to provide any and all Customer Data under this Agreement and that the Solution may manipulate such Customer Data as necessary to perform the services.  Customer shall use the Solution in compliance with all applicable laws, statutes, ordinances and regulations.  
CUSTOMER AGREES THAT IT WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OR ANY ACTIVITIES ASSOCIATED WITH ANY CUSTOMER DATA. THE RESULTS OF ANY ACTIONS CUSTOMER TAKES BASED ON CUSTOMER DATA OR OTHER CONTENT IN THE SOLUTION ARE SOLELY CUSTOMER'S RESPONSIBILITY. Under no circumstances will appNovi be liable in any way for Customer Data or for any loss or damage of any kind incurred as a result of the use of any of Customer Data made available on the Solution. Customer is responsible for ensuring Customer Data and other information is properly backed up so Customer will have access to it in the event of loss, corruption, or cessation of the Solution.  
Upon the expiration or termination of this Agreement, appNovi will have no further obligation to provide the Solution and Customer will have no further rights to use or access the Solution. appNovi does not have access to Customer Data and thus does not export Customer Data or other data during Customer's use of the Solution, or provide Customer Data or other data to Customer upon termination or expiration of this Agreement. 

6. appNovi's Intellectual Property.  
"appNovi", the appNovi logos, and other marks used on the Solution or by appNovi are trademarks of appNovi or its suppliers, and no license to use the same is granted under this Agreement. As between Customer and appNovi, appNovi and its suppliers own all worldwide right, title, and interest in the Solution, appNovi Content and Ideas (defined below) and Customer owns all right, title, and interest in Customer Data. 
appNovi reserves the right to track, monitor, and use de-identified, aggregated information from Customer's use of the Solution (but which does NOT include Customer Confidential Information ("Usage Data").
Customer acknowledges and agrees that it may be providing certain feedback, statements, suggestions, and ideas ("Ideas") to appNovi, directly or through a third party, in connection with use of the Solution, which appNovi may use in future modifications to the Solution, multimedia works, and/or advertising and promotional materials relating thereto. Customer hereby assigns to appNovi any and all right, title, and interest in any Ideas, including but not limited to any copyright, patent right, moral right, and all other intellectual property rights. Customer acknowledges and agrees that submission of Ideas to appNovi, either orally or in writing, will not in any way establish a confidential relationship with appNovi, nor will it place appNovi in the position of receiving a disclosure in trust. 

7. Confidentiality 
Each party agrees (i) not use the other party's Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees, consultants, agents and professional advisers who have a bonafide need to know the specific information in question in connection, but only to the extent necessary for such party's performance of obligations or exercise of rights or under this Agreement and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. 
If a party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the other party, and, to the extent within its control, permit the other party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the other party in seeking to obtain such protection. 
Further, this Section shall not apply to information which the receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the receiving party who had no access to such information. 

8. Indemnification.
  8.1 appNovi. appNovi will hold harmless, indemnify, and defend Customer and its affiliates and their respective officers, directors, agents, and employees (collectively, "Customer Parties") from and against any and all claims (including any and all liabilities, damages, losses, costs, expenses, and reasonable attorneys' fees arising therefrom) to the extent arising out of any action or proceeding brought by a third party against Customer (i) alleging that Solution provided under this Agreement infringe an intellectual property right of a third party; or (ii) arising from appNovi's gross negligence or willful misconduct. Notwithstanding the foregoing, in no event shall appNovi have any obligations or liability under this Section arising from: (i) use of any Solution in a manner not anticipated by this Agreement or in combination with materials not furnished by appNovi; or (ii) any content, information or data provided by Customer or other third parties. 
  If the Solution is or is likely to become subject to a claim of infringement or misappropriation, then appNovi will, at its sole option and expense, either: (i) obtain for the Customer the right to continue using the Solution; (ii) replace or modify the Solution to be non-infringing and substantially equivalent to the infringing Solution; or (iii) if options (i) and (ii) above cannot be accomplished despite the reasonable efforts of appNovi, then appNovi may terminate Customer's rights to use the infringing Solution and will refund pro-rata any prepaid fees for the infringing portion of the Solution. THE RIGHTS GRANTED TO CUSTOMER UNDER THIS SECTION 8.1 SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT BY THE SOLUTION OF ANY PATENT, COPYRIGHT, OR OTHER PROPRIETARY RIGHT.
  8.2 Customer. Customer will hold harmless, indemnify, and defend appNovi and its parent, subsidiaries, and affiliates and their respective owners, representatives, officers, directors, agents, and employees (collectively, "appNovi Parties") from and against any and all claims to the extent arising out of any action or proceeding brought by a third party against any one or more of the appNovi Parties (i) alleging injury, damage, or loss resulting from Customer's use of the Solution, (other than a claim for which appNovi is obligated to indemnify Customer Parties under Section 8.1 above); (ii) alleging that Customer Data infringes an intellectual property right of a third party; or (iii) related to any act of gross negligence or willful misconduct by Customer or any of its Authorized Users.   
  8.3 Indemnification Procedures. The indemnified party will provide prompt written notice to the indemnifying party of any claim for which the indemnified party will seek indemnification under this Agreement, and will provide reasonable assistance to the indemnifying party upon the indemnifying party's reasonable request. The indemnifying party consents to venue in and jurisdiction of any court in which a lawsuit is filed against the indemnified party asserting one or more claims that the indemnifying party is obligated to defend under this Agreement. The indemnifying party will have the right to defend and compromise such claim at the indemnifying party's expense for the benefit of the indemnified party; provided, however, the indemnifying party will not have the right to obligate the indemnified party in any respect in connection with any such compromise without the written consent of the indemnified party. Notwithstanding the foregoing, if the indemnifying party fails to assume its obligation to defend, the indemnified party may do so to protect its interests and the indemnifying party will reimburse all costs incurred by the indemnified party in connection with such defense.

9. Warranty
appNovi warrants to Customer: a) that for a period of thirty (30) days following the initial delivery of any Solution to Customer the Solution will conform, in all material respects, with the applicable Documentation; b) to the knowledge of appNovi and except as disclosed in Documentation, at the time of initial delivery of the Solution to Customer, the Solution contains no logic bombs or other codes or instructions that may be used by appNovi to access, modify, delete or disable Customer's computer systems or those of other parties accessing Customer's computer systems; and c) it has used commercially reasonable means to protect against harmful code. Customer's sole and exclusive remedy and appNovi's sole and exclusive liability for a breach of the foregoing warranties shall be, at appNovi's option, either (i) a pro rata refund of the purchase price of the Solution or (ii) commercially reasonable efforts by appNovi to conform to the warranty.
The above Solution warranty does not apply if the Solution, product or any other equipment upon which the Solution is authorized to be used (i) has been altered, except by appNovi or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with Documentation, (iii) has been subjected to abnormal physical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for beta, evaluation, testing or demonstration purposes; (v) was not obtained directly from appNovi or an authorized appNovi reseller; or (vi) has been provided to Customer expressly on a "NO WARRANTY" basis.

10. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER APPNOVI NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER APPNOVI OR ITS SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (i) ANY PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST DATA OR LOST PROFITS; OR (ii) FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SOLUTION; OR (iii) FOR ANY CLAIMS BASED ON ANY ERROR, DEFECT, OR NONCONFORMITY IN THE PRODUCTS OR SERVICE, FOR ANY AMOUNT IN EXCESS OF THE PRICE PAID TO APPNOVI FOR SUCH DEFECTIVE PRODUCT(S) OR SERVICE; OR (iv) FOR ALL OTHER CLAIMS NOT RELATED TO AN ERROR, DEFECT, OR NONCONFORMITY IN THE PRODUCTS, ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNT PAID TO APPNOVI HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

11. Fees & Payment
  11.1 Fees. Customer will pay appNovi the monthly recurring fees and non-recurring fees for the Solution (the "Fees") that were agreed to by the parties in an Order. Customer represents and warrants that the billing and contact information provided to appNovi is complete and accurate, and appNovi shall have no responsibility for any invoices that are not received due to inaccurate or missing information provided by Customer. 
  11.2 Invoicing. appNovi will invoice to Customer the Fees prior to the beginning of each month. Customer will pay all amounts within thirty (30) days of receipt of invoice. All Fees are non-refundable and non-cancellable. Any invoiced amounts not paid when due will accrue interest at the lower of 1.5 percent (1.5%) per month for each month (or fraction thereof) that payment is not received by appNovi, or the maximum percentage allowed by applicable law. In the event that payment that is properly owed under this Agreement is not made when due, Customer will be in material default under the terms of this Agreement and appNovi may invoke any or all available remedies, including the right to suspend its performance under this Agreement. Customer will reimburse appNovi for all costs and expenses incurred by appNovi arising from Customer's collection of amounts due under this Agreement, including, without limitation, reasonable attorneys' fees.
  11.3 Taxes. Fees under this Agreement are exclusive of any applicable value-added, sales, use excise, property or any other similar tax or fees (other than taxes based on appNovi's income, net worth, personnel costs, or property taxes on the Solution). Customer is responsible for payment of any all such taxes required by law. 

12. Term & Termination.
  12.1 Term. appNovi will provide Solution to Customer for the duration of the subscription that you chose to purchase when signing up for the Solution (the "Initial Term"). Following the expiration of the Initial Term, and unless set forth in the Order, which will control in the event of conflict, the term will automatically renew and extend for additional consecutive periods (each a "Renewal Term"), which will be the same length as the Initial Term, unless the Customer selects a different subscription option in advance of the expiration of the Initial Term. The Initial Term and any Renewal Term together, the "Term." 
  12.2 Termination. This Agreement or an Order may be terminated: (i) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty days of such filing; or (ii) by either party if the other party materially breaches this Agreement or the Order and fails to cure such breach to such party's reasonable satisfaction within thirty (30) days following receipt of written notice thereof. If Customer fails to timely pay any invoice for Fees, appNovi will have the right, in addition to any other remedies it may have under this Agreement or at law, to suspend its access to the Solution without any liability to Customer for any damages suffered by Customer arising from or related to such suspension.
  12.3 Effect of Termination. Customer's license to use the Solution shall terminate upon the expiration of the applicable Solution Term. Upon any termination of this Agreement or an Order by appNovi, all applicable licenses are revoked and Customer shall immediately cease use of the applicable Solution and certify in writing to appNovi within thirty (30) days that Customer has destroyed or returned to appNovi such Solution and all copies thereof. Termination of this Agreement or a license granted hereunder shall not relieve Customer of its obligation to pay all fees that have accrued, have been paid, or have become payable by Customer hereunder. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive such termination.

13. Disclaimers.
THE SOLUTION AND THE APPNOVI CONTENT (COLLECTIVELY, THE "SYSTEM") ARE PROVIDED "AS IS". WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SYSTEM; (II) ANY ADVICE YOU GLEAN FROM THE SYSTEM; OR (III) ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE THROUGH THE SYSTEM. WE DO NOT PROMISE THAT THE SYSTEM WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT.

14. Miscellaneous.
  14.1 Revisions to Agreement. We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Solution. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING.  Any changes to this Agreement will not apply retroactively to events that occurred prior to such changes.
  14.2 Partial Invalidity; No Exclusive Remedy. If any provision of the Agreement should for any reason be held invalid, unenforceable, or contrary to public policy, the remainder of the Agreement will remain in full force and effect notwithstanding any such event. No specific remedy set forth herein precludes any other remedy in this Agreement or available at law or equity.
  14.3 Assignment. Customer will not transfer or assign this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of appNovi. Any assignment or transfer, or attempt thereof, without such prior written consent will be void and have no effect. All terms and conditions contained herein will inure to the benefit of, and be binding upon, any successor and any permitted assignees of the parties.
  14.4 Merger of Terms, Modification, Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein. The terms of this Agreement will exclusively control with respect to the subject matter hereof.  The waiver by either party of any default or breach will not constitute a waiver for any other subsequent default or breach.
  14.5 Independent Contractors. The parties are independent contractors. This Agreement does not designate either party as the agent, employee, legal representative, partner, or joint venture of the other party for any purpose whatsoever and neither will have the right, power, or authority to create any obligation or responsibility on behalf of the other. Each party will be fully liable for the acts and omissions of their employees, subcontractors, agents hereunder.
  14.6 Further Assurances.  From time to time on and after the Effective Date and without further consideration, the parties to this Agreement will each deliver or cause to be delivered to any other party, at such times and places as will reasonably be requested, such additional instruments as any of the others may reasonably request for the purpose of carrying out the terms of this Agreement.  
  14.7 Survival. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination or expiration of the term of this Agreement, including, but not limited to Sections 4-10 and 14, will survive such termination or expiration of the term of this Agreement for any reason and will be fully enforceable thereafter.
  14.8 Injunctive Relief. Customer acknowledges that appNovi's Solution and the intellectual property contained therein are valuable commercial products, the development of which involved the expenditure of substantial time and money.  Any violation of Customer's obligations surrounding them shall be deemed a material breach of the Agreement, for which appNovi may not have adequate remedy in money or damages, and appNovi shall be entitled to injunctive or other equitable relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
  14.9 Force Majeure.  Except for Customer's obligation to pay Fees, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, pandemic, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
  14.10 Master Agreement. In the event of any conflict between this Agreement and a Master Services Agreement between Customer and appNovi, the terms and conditions of the Master Services Agreement shall control. 
  14.11 Choice of Law. The interpretation of this Agreement and the resolution of any disputes relating to this Agreement will be governed by the laws of the State of Delaware without regard to any conflicts of laws provisions. 
  14.12 Agreement to Arbitrate. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement) or provision of the Solution shall be resolved by final and binding arbitration to be held in the English language in the State of Delaware, pursuant to the rules of the American Arbitration Association.  The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part, of this Agreement is void or voidable.  Further, if you are located outside of the United States, we retain the right to bring proceedings against you for breach of this Agreement in your country of residence or any other appropriate country. 

14.13 Definitions.
  "Authorized User means a Customer and/or its employees, contractors, consultants, agents, and vendors, provided, such third parties have been authorized by the Customer to access and use the Solution through Customer's account.
  "Confidential Information" means any and all information related to a party's business (including software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information and proprietary information of third parties provided to the other party in confidence) that is labeled or identified as "confidential" or "proprietary"; and if disclosed orally or otherwise in intangible form, is confirmed as such in writing within thirty (30) days of such disclosure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary. Without limiting the foregoing, the Solution, appNovi Content and Documentation shall be deemed the "Confidential Information" of appNovi, and Customer Data shall be deemed the "Confidential Information" of Customer.
  "Documentation" means manuals and other documentation for the Solution furnished to the Customer by appNovi.  
  "Order" means any purchase order or similar document for ordering the Solution.