Apiboost Software Terms & Conditions
Apiboost General Terms and Conditions
Last Modified: February 13, 2024
On Premises and Cloud Marketplace Software
These General Terms and Conditions (these “Terms”) govern your access and use of Achieve Software as defined below. “We”, “our” and “Achieve” means Achieve Internet, Inc., or the entity providing Software (and thus the entity or entities with all rights and obligations with respect to those Software) under the applicable Order. “You” and “your” means the client, customer or subscriber agreeing to and accepting these Terms.
1. Definitions. The following capitalized terms will have the following meanings whenever used in these Terms.
1.1. “Affiliate” means, in the case of us, Achieve Internet, Inc., and any entity that, from time to time is directly or indirectly controlled by Achieve Internet, Inc. In the case of you, “Affiliate” means any entity that from time to time is directly or indirectly controlling, controlled by, or under common control of you. “Control” means the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
1.2. “Agreement” means each Order, any applicable incorporated documents and these Terms.
1.3. “Beta Software” means pre-release and beta software or features within generally available Software.
1.4. “Confidential Information” refers to any nonpublic, sensitive information, including but not limited to any business, financial or technical information, in any form, whether oral or written, which the receiving party should reasonably consider a trade secret or otherwise confidential, and which is disclosed by a party in the course of the Agreement.
1.5. “Your Data” means all information, data and other content, in any form or medium, that is submitted, posted or otherwise transmitted through the Software by you or on your behalf. Your Data does not include payment records, credit cards or other information you use to pay Achieve, or other information and records related to your account, including without limitation identifying information related to your staff involved in payment or other management of such account.
1.6. “Documentation” means any written, printed, or otherwise recorded or stored material available through the Software or provided by us online or otherwise regarding the capabilities, operation and use of the Software, including any technical specifications, manuals, guides, release notes, training and support materials and other instructions.
1.7. “Free Trials” means Software or features that are designated as “Beta Software-no charge” or “Free Trial” on any Order, or otherwise offered by Achieve to you in writing temporarily or for the duration of the then current subscription term at no charge.
1.8. “Intellectual Property” or “IP Rights” means any and all copyrights, trademarks, patent rights (including patent applications, divisions, continuations, continuations-in-part, reissues, renewals, extensions and the like), whether registered or unregistered and trade secrets, whether under common, statutory, or federal law, and further including, without limitation, all proprietary, moral, and database rights associated with the technology, inventions, know-how, show-how, designs, formulae, processes, techniques, ideas, artwork, software, works of authorship, and any suggestions, enhancement requests, feedback, recommendations or other similar information relating to the Software and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and any and all related Documentation.
1.9. “Order” means an order form, order confirmation, statement of work, invoice, e-commerce confirmation, services agreement, or similar agreement issued or executed by us that lists or describes the Software to be supplied by us.
1.10. “Privacy/Security Law” means privacy and security laws governing Achieve’s handling of Your Data (if any).
1.11. “Software” means the Apiboost software product described in the Order and all updates, revisions, improvements and modifications of the foregoing and any work product developed as part of any support services provided.
1.12. “User” means any individual who uses the Software on your behalf or through your account or passwords, whether authorized or not.
2. The Software.
2.1. License & Delivery.
(a) License Grant. Subject to and conditioned on your payment of Fees and compliance with the terms and conditions of the Agreement, we grant you a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.5) license during the subscription term to: (i) use the Software only for your own internal business purpose; and (ii) use and make a reasonable number of copies of the Documentation solely for your own internal business purposes in connection with your use of the Software. You may make one copy of the Software solely for backup, disaster recovery and testing purposes. Any such copy of the Software: (x) remains our exclusive property; (y) is subject to the terms and conditions of the Agreement: and (z) must include all copyright or other proprietary right notices contained in the original.
(b) Third-Party Suppliers. Notwithstanding any provisions to the contrary contained herein, our Software may include data and software from third-party suppliers, which may be indicated on an Order or otherwise presented to you for acceptance within the Software by website link or otherwise. Some third-party suppliers require us to pass additional terms through to you. Such additional terms may change from time to time, and new third-party suppliers may be added. To see the current third-party additional terms for our Software, please click the following URL: https://www.apiboost.com/legal/thridpartyterms. You agree to comply with all applicable third-party terms.
(c) Third-Party Supplemental Software. You may be required to license third-party software to operate some of our Software. In such cases, these Terms do not grant any rights to, and we assume no liability with respect to, such third-party software. Your use of such third-party software is subject to the terms and conditions of the license accompanying such third-party software. If you do not agree to abide by the applicable terms for such third-party software, you should not install or use such third-party software.
(d) Configuration Services. The license to the Software under these Terms does not automatically entitle you to services such as installation, implementation or training. Such professional services are available only as specified in an applicable Order and may be subject to additional terms or a separate agreement.
(e) Delivery. We will deliver the Software and Documentation electronically, on tangible media or by other means, in our sole discretion. When you download our Software or Documentation, you are accepting it for use in accordance with the Agreement.
(f) Order. Your Order identifies the Software, quantities, fees, charges and other details of your subscription or order. The applicable Order may also refer to and incorporate documents which may apply to the Software. Each Order, any applicable incorporated documents and these Terms constitute the complete agreement and supersede any prior or contemporaneous discussions, agreements, representations or warranties regarding your subscription or order of the Software. If you are permitted to provide an Affiliate with access to the Software, you will ensure such Affiliate complies with all provisions of the Agreement that are applicable to you. If there is any conflict among any provisions of the Agreement, the descending order of precedence is: third-party license terms contained in Section 2.1(c) of these Terms; the applicable Order; and the remaining provisions of the Agreement.
2.2. Maintenance Releases. If provided for in the Order, updates to the Software (bug fixes, patches, maintenance releases) will be provided to you if and when Achieve makes such updates generally available to its licensees. All updates provided by Achieve to you are deemed Software. You are responsible for installing and deploying the updates to your infrastructure as soon as practicable after receipt. Updates do not include any major releases or modifications that have been made to the Software (“Upgrades”). Depending on your subscription level as set forth in the Order, access to Updates and Upgrades may not be included in the Software, and in such case, would only be provided if purchased under the terms of a new Order.
2.3. Software Revisions. Achieve may revise the Software features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Software materially reduces features or functionality provided to you pursuant to an outstanding Order, you may within 30 days of notice of the revision terminate such Order, without cause. The Software purchased pursuant to the Agreement is limited to the Software referenced in the applicable Order, and is separate from any other product or service provided by Achieve. Payment obligations for the Software is not contingent on the purchase or use of any of Achieve’s other products or services. Achieve makes no warranty regarding the delivery of any future functionality or features (including the availability of the Software beyond the then current subscription term).
2.4. Beta Software & Free Trials. If we provide Beta Software or Free Trials to you, your use of such Beta Software or Free Trials is subject to any additional terms that we specify and is only permitted during the period designated by us (or if not designated, during the then current subscription term) until terminated in accordance with these Terms. Except as otherwise set forth in this Section 2.4, these Terms (including but not limited to Section 5 Your Responsibilities and Restrictions) fully apply to Beta Software and Free Trials. We reserve the right to modify or terminate your right to access and use Beta Software and Free Trials at any time and for any reason in our sole discretion, without liability to you. You acknowledge and understand that any Beta Software are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software and features within generally available Software. We make no representations that Free Trials made available to you will be ever be made generally available. In some circumstances, we may charge a fee to provide access to Beta Software, but the Beta Software will still remain subject to this Section 2.4. All information regarding the characteristics, features and performance of any Free Trials or Beta Software constitutes our Confidential Information. TO THE MAXIMUM EXETENT PERMITTED BY APPLICABLE LAW, ACHIEVE DISCLAIMS ANY AND ALL OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE FREE TRIALS OR BETA SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY SUPPORT, MAINTENANCE, WARRANTY AND INDEMNITY OBLIGATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FREE TRIALS AND BETA SOFTWARE ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OR LIABILITY OF ACHIEVE.
3. CHARGES.
3.1. Payment & Taxes. You shall pay the fees set forth in each Order for the Software (the “Fee”) in US dollars without set off, counterclaim or deduction. Unless otherwise set forth in the applicable Order, our invoices are due within 30 days of issuance. We will not be required to refund the Fee under any circumstances. For late payment, if you are a non-government subscriber you shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law, plus all expenses of collection. Further, and in addition to other remedies available to us, if such failure to pay continues for 15 days or more, we may suspend your access to any portion or all of the Software until all past due amounts and any interest thereon are paid in full. Amounts payable to Achieve shall continue to accrue during any period of suspension. You must also pay applicable taxes and duties, other than taxes on our income, in addition to the price quoted, unless you provide valid proof that you are tax exempt within 30 days of the date of the Order. If applicable law requires withholding or deduction of sales taxes or any other tax or duty, you shall separately pay us the withheld or deducted amount, over and above Fees due. Any invoice dispute must be submitted within 15 days of the date of the invoice.
4. Your Data & Privacy.
4.1. Use of Your Data. We shall not: (a) access, process, or otherwise use Your Data other than as necessary to facilitate the Software; or (b) give Your Data access to any third-party, except our subcontractors that have a need for such access to facilitate the Software and are subject to a reasonable written agreement governing the use and security of Your Data. Further, we: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Your Data; and (d) shall comply with any applicable Privacy and Security Laws.
4.2. Risk of Exposure. You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, you assume such risks. Achieve offers no representation, warranty, or guarantee that Your Data will not be exposed or disclosed through errors or the actions of third parties.
4.3. Data Accuracy. We shall have no responsibility or liability for the accuracy of data uploaded to the Software by you, including without limitation Your Data and any other data uploaded by Users.
4.4. Excluded Data. You warrant that (a) you have not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to us or our computers or other media and, (b) to the best of your knowledge, Your Data does not and will not include Excluded Data. You shall inform us of any Excluded Data within Your Data promptly after discovery (without limiting our rights or remedies). You recognize and agree that: (c) the provisions of these Terms related to Your Data do not apply to Excluded Data; (d) we have no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (e) our systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. We are not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means protected health information pursuant to HIPPA and social security numbers. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects).
5. Your Responsibilities & Restrictions.
5.1. Acceptable Use. You shall not, and shall not permit any third-party to, use our Software or Documentation for any purposes beyond the scope of the license granted herein. Unless otherwise expressly permitted in the Agreement, you may not and you may not permit a third-party to:
(a) copy, modify or create derivative works of or improvements to the Software or Documentation in whole or in part;
(b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, display, store, merge or transfer or otherwise make available the Software or Documentation;
(c) decompile, decode, disassemble, reverse engineer, adapt, or otherwise attempt to derive or gain unauthorized access to the source code of the Software, in whole or in part;
(d) remove or fail to display any proprietary notices, translate the Software or Documentation, in whole or in part, or as a component of any other product, service or material; or
(e) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software;
(f) provide Software passwords or other log-in information to any third-party;
(g) share non-public Software features or content with any third-party;
(h) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, to copy any ideas, features, functions or graphics of the Software, or to otherwise use the Software Achieve’s disadvantage;
(i) bypass, breach, circumvent or disable any security features or functionality associated with the Software; or
(j) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
We have no obligation to monitor any content uploaded to the Software. In the event that we suspect any breach of the requirements of this Section 5.1, including without limitation by Users, we may suspend your access to the Software without advanced notice, in addition to such other remedies as we may have. Nothing in the Agreement requires that we take any action against you or any User or other third-party for violating this Section 5.1, these Terms or the Agreement, but we are free to take any such action we see fit.
5.2. Unauthorized Access. You shall take reasonable steps to prevent unauthorized access to the Software, including without limitation by ensuring that passwords and other log-in information are kept confidential. You shall notify us immediately of any known or suspected unauthorized use of the Software or breach of security and shall use your best efforts to remedy identified security threats and vulnerabilities to your system. Each User must immediately change their username/password in the event that their login information has been acquired by or disclosed to an unauthorized person.
5.3. Compliance with Laws. In your use of the Software, you shall comply with all applicable laws, including without limitation Privacy and Security laws.
5.4. Users & Access. You are responsible and liable for: (a) proper use of our Software, in accordance with all Documentation, usage instructions and operating specifications, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of these Terms applicable to you; (b) any use of the Software through your account, whether authorized or unauthorized; and (c) the security and use of your passwords and your Users’ passwords and login credentials.
5.5. Your Control and Responsibility. You have and will retain sole responsibility for: (a) all of Your Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of you or any User in connection with the Software; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by You or through the use of third-party services; (d) changes you make to our Software or data; (e) implementing and maintain proper and adequate virus or malware protection and proper backup and recovery systems; (f) installing any updates provided, (g) your combination of our Software with any other products, services, data or other property. You represent, warrant, and covenant to us that You own or otherwise have and will have the necessary rights and consents in and relating to Your Data so that, as received by us and processed in accordance with these Terms, Your Data does not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third-party or violate any applicable law.
6. IP Rights & Feedback.
6.1. IP Rights. Together with our licensors, we reserve all rights not expressly granted to you under the Agreement. Without, limitation to the foregoing, Achieve and its licensors retain all right, title, and interest in and to the Documentation and Software, including without limitation all graphics, user interfaces, logos, and trademarks reproduced through the Software. Except for the limited rights and licenses granted herein, nothing in the Agreement grants by implication, waiver, estoppel, or otherwise to you or any third-party any IP Rights or other right or title in and to the Software, Documentation or any of the components of the foregoing. You acknowledge that as between the parties, all IP Rights in the Software and Documentation are owned by us, our Affiliates or third-party providers. You recognize that the Software, Documentation and their respective components are protected by copyright and other laws. You will not remove or conceal any property rights notices in the Software or Documentation and will include such notices on any copy you are permitted to make.
6.2. Your Data. Each party acknowledges that, as between the parties, you and your licensors own all right, title and interest, including all IP Rights in and to Your Data.
6.3. Feedback. Achieve has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that you, your clients, or other Users give Achieve, and nothing in these Terms or in the parties’ dealings arising out of or related to the Agreement will restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. You hereby assign to Achieve on your behalf, and on behalf of your employees, contractors and/or agents and Users, all right, title, and interest in, any ideas, know-how, concepts, techniques, or other IP Rights contained in the Feedback, for any purpose whatsoever, although Achieve is not required to use any Feedback. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of our products or services, including, but not limited to the Software and Documentation.)
7. Confidential Information.
7.1. Nondisclosure and Non-Use. Each Party agrees: (a) not to disclose Confidential Information of the disclosing party to any third-party, except to its Affiliates, employees, contractors, financial and legal advisors, who have a need to know the Confidential information for the receiving party to exercise its rights or perform its obligations hereunder and who are subject to confidentiality obligations no less restrictive than the terms and conditions of the Agreement; and (b) to protect the Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The receiving party shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information that comes to receiving party’s attention. Notwithstanding the foregoing, the receiving party may disclose the Confidential Information of the disclosing party as required by applicable law or by proper legal or governmental authority, and shall give the disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with the disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing party’s expense. These obligations of confidentiality do not apply to information which: (c) is in the receiving party’s possession prior to the time of disclosure; (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; (e) becomes known publicly, before or after disclosure, other than as a result of the receiving party’s improper action or inaction; (f) becomes known to the receiving party on a non-confidential basis through a third-party who is not subject to an obligation of confidentiality; or (g) is approved for release in writing by the disclosing party. You are on notice that the Confidential Information may include our valuable trade secrets. With respect to each item of Confidential Information, the obligations of Section 7 will terminate five (5) years from the date of first disclosure to receiving party; provided that such obligations related to Confidential Information constituting trade secrets will survive the expiration or termination of the Agreement for so long as such information remains subject to trade secret protection pursuant to applicable law.
8. Representations & Warranties.
8.1. Limited Warranty. During the warranty period set forth in the Order, we warrant that the Software will conform in all material respects to any Documentation that accompanies the Software when accessed and used in accordance with the Documentation. Your only remedy in the event that we breach this limited warranty shall be that we exercise commercially reasonable efforts to promptly correct any failure of the Software to perform according to the Documentation, provided that you provide us with prompt notice of the warranty claim within the warranty period and all information we reasonably request to resolve the failure, including sufficient information to enable us to recreate such failure. This warranty does not apply to problems caused by your failure to adhere to instructions or those caused by events beyond our control.
8.2. From You. You represent and warrant that you have accurately identified yourself and have not provided any inaccurate information about yourself to or through the Software or to Achieve.
8.3. Warranty Disclaimers. Except to the extent set forth in Section 8.1 above, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) ACHIEVE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (b) ACHIEVE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR RESULTS OF THE USE THEREOF WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF ANY THIRD PARTY, OR WILL PERFORM WITHOUT INTERRUPTION OR ERROR, OR BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES; AND (c) ACHIEVE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE.
9. Indemnification. You shall defend, indemnify, and hold us and our Associates (as defined below) harmless against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or alleging that Your Data, or any use of Your Data, including any processing of Your Data in accordance with the Agreement, infringes or misappropriates such third-party’s intellectual property rights or violates any law; and any claim based on your use or any User’s: (a) negligence or willful misconduct; (b) use of the Software or Documentation in a manner not authorized by the Agreement; (c) use of the Software in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; (d) modifications to the Software not made by us; or (e) use of any version other than the most current version of the Software or Documentation delivered to you. If you fail to assume the defense on time to avoid prejudicing the defense, we may defend the Indemnified Claim, without loss of rights pursuant to this Section 9. We will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that we or any of our Associates to admit wrongdoing or liability or subjects either of to any ongoing affirmative obligation. (“Associates” are our officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns).
10. Limitation Of Liability.
10.1. Dollar Cap. OUR CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO US BY YOU FOR THE SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM FOR DAMAGES PROVIDED HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.
10.2. Excluded Damages. IN NO EVENT WILL WE OR OUR THIRD-PARTY PROVIDERS BE LIABLE FOR ANY PENALTIES, INTEREST, TAXES OR OTHER AMOUNTS IMPOSED BY ANY GOVERNMENAL OR REGULATORY AUTHORITY. NEITHER PARTY IS LIABLE TO THE OTHER FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY TO THE BENEFIT OF OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD-PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. You acknowledge and agree that we have based our pricing on and entered into the Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Section 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Section 10, our liability will be limited to the maximum extent permissible. For the avoidance of doubt, our liability limits and other rights set forth in this Section 10 apply likewise to our Affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives. The limitations set forth in this Section 10 do not apply to your indemnification obligations in Section 9, or your obligation to pay the charges on the applicable Order and all use of the Software that exceeds the usage permissions and restrictions granted to you.
11. Term & Termination.
11.1. Term. The initial subscription term and any renewal terms for the Software are set forth in the Order.
11.2. Termination for Cause. Achieve may terminate the Order or the Agreement, effective on written notice to you: (a) if you fail to pay any amount when due hereunder, and such failure continues for 15 days, or (b) you breach any obligations under Section 5 or Section 7. Either party may terminate the Agreement for the other’s material breach of the Agreement by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Either party may terminate the Agreement, effective immediately upon written notice to the other party, if the other party: (c) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (d) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (e) makes or seeks to make a general assignment for the benefit of its creditors; or (f) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.3. Effects of Termination. Upon termination or expiration of the Agreement or the applicable Order, all licenses granted hereunder will immediately terminate and you shall cease all use of the Software and Documentation and delete, destroy, or return all copies of the Documentation in its possession or control. This Section and the following provisions will survive termination or expiration of the Agreement: (a) any obligation of you to pay fees incurred before termination; (b) Sections 6 (IP Rights & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of the Agreement that must survive to fulfill its essential purpose.
12. MISCELLANEOUS.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Consent to Electronic Communication. You hereby consent to receiving electronic communications from us via publication on our URL or within the Software. These electronic communications may include technical or operational notices, notices of third-party provider terms in Section 2.1(c) and other information concerning or related to the Software. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
12.3. Notices. Any notices to us must be in writing and sent to our corporate headquarters address [available at [URL]/set forth in the Order] and must be delivered either in person, or sent by certified or registered mail (return receipt requested and postage prepaid), by recognized overnight courier service, or by email (except for any notices of breach of the Agreement, which may not be sent by email). Notices sent to us are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us to your email contact points designated by you, and such notices will be deemed received 24 hours after they are sent. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Software including breach of the Agreement. However, we may give technical or operational notices or notices of third-party supplier terms via publication on the URL in Section 2.1(c) or within the Software. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
12.4. Force Majeure. No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor stoppages or slowdowns or other industrial disturbances, riots or other acts of civil disorder, embargoes, passage of law or other action taken by governmental or public authority, or other causes beyond the performing party’s reasonable control.
12.5. Assignment & Successors. You may not assign the Agreement or any of your rights or obligations hereunder without our express written consent, which consent will not be unreasonably withheld or delayed. We may delegate or transfer any obligation set forth in the Agreement, or assign any rights or remedies granted in the Agreement in whole or in part to: (a) an Affiliate; or (b) in connection with a reorganization, merger, acquisition, divestiture or similar business transaction. We may subcontract any obligation under this Agreement in our sole discretion. Any purported assignment or delegation in violation of this Section will be null and void ab initio. Except to the extent forbidden in this Section 12.5, the Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fill its intended purpose to the maximum permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
12.7. No Waiver. Neither party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
12.8. Choice of Law & Jurisdiction. Unless otherwise stated in the applicable Order, the Agreement will be governed and all claims arising out of or related to the Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Diego County, California. This Section 12.8 governs all claims arising out of or related to the Agreement, including without limitation tort claims.
12.9. Injunction. Each party acknowledges and agrees that a breach or threated breach by such party of any of its obligations under Sections 5 (Your Responsibilities & Restrictions), 6 (IP Rights & Feedback) or 7 (Confidential Information) (a) would cause the other party irreparable harm for which no adequate remedy exists at law; (b) in the event of such breach it would be difficult to determine the damages resulting from its breach; and (c) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that the non-breaching party prove actual damage or post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity and otherwise. This Section 12.9 does not limit either party’s right to injunctive relief for breaches not listed.
12.10. Technology Export. The Software may be subject to export control or export sanction laws and regulations, including but not limited to the US Export Administration Act and its associated regulations. You shall not, directly or indirectly: (a) permit any third-party to access or use the Software in violation of any law or regulation for any jurisdiction, including but not limited to the United States of America, the United Kingdom, the European Union and its Member States; or (b) export, re-export or release the Software to, or make the Software accessible from any jurisdiction or country to which export, re-export or release is prohibited by law, regulation or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. You warrant that neither you, nor any Affiliate to which you provide the Software, is affiliated with a specially designated or sanctioned entity under any applicable law and that, in any transaction relating to us, you will not involve sanctioned parties.
12.11. Entire Agreement. The Agreement, together with any documents incorporated herein by reference contains the entire agreement between us with respect to its subject matter and supersedes all prior agreements, understandings, representations, warranties, proposals and negotiations, both oral and written, in each case with respect to its subject matter, including but not limited to any terms or conditions appearing on a purchase order or other form used by you. Each party acknowledges that it has not relied upon any representations made by the other that are not set forth in the Agreement.
12.12. Amendment. You acknowledge and agree that we have the right to modify these Terms at any time by posting the updated Terms at https://apiboost.com/legal or within the Software, by providing notice to you through your account, through direct email communication or by using other similar means. Modified Terms will become effective thirty (30) days after such notice, provided that, if such amendment materially reduces your rights or protections, such amendment shall only be effective if in writing and signed by authorized representatives of both parties. By using the Software after the effective date, you agree to be bound by the most recent version of the Terms. You are responsible for reviewing and becoming familiar with such modifications.
12.13. Third-party Rights. Our third-party providers benefit from our rights and remedies under this Agreement. Except for our third-party providers, no other third parties have any rights or remedies under the Agreement