TERMS OF SERVICE
This software subscription agreement is made up of these Terms of Service (including Annexes and Appendices hereto, “Terms“) together with any Order Form(s) and Data Processing Agreement available at https://adapty.io/data-processing-agreement/ (collectively, “Agreement“) and is made between Customer (“Customer” or “you“) and Adapty Tech Inc., 2093 Philadelphia Pike #9181 Claymont, DE 19703, or other legal entity identified on the Order Form (“Adapty“) (each a “Party“, together, the “Parties“) and governs Customer’s use of the Software set out in the Order Form.
YOU INDICATE YOUR ASSENT TO THESE TERMS BY ANY OF THE FOLLOWING: CLICKING THE RESPECTIVE BUTTON OR CHECKBOX AT THE TIME YOU REGISTER AN ACCOUNT, BY CREATING AN ACCOUNT, OR BY ACCESSING OR USING ADAPTY SOFTWARE IN THE FREE PLAN OFFERED BY ADAPTY.
If you enter into these Terms on behalf of a company, you represent that you have the authority to bind such entity. If you do not have such authority, or if you do not unconditionally agree to these Terms, you have no right to use the Software.
1.1. “API” means any application programming interface made available by Adapty to Customer in connection with the Agreement.
1.2. “Authorized Users” means the Customer and their respective employees, contractors, or consultants registered in adapty.io with their contact e-mails that are used for communication with Adapty services.
1.3. “Customer Content” means any data, applications, files, information, or materials input into the Software by or on behalf of the Customer.
1.4. “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.5. “Order Form” means the: (i) signed order form between the Parties, or (ii) the applicable online registration form or click-through agreement referencing these Terms.
1.6. “Software” means the software applications set out in the Order Form provided by Adapty including upgrades thereto and any related content, APIs, software development kits, documentation, and software tools provided by Adapty.
2. LICENSE GRANT & RESTRICTIONS
2.1. Adapty grants to Customer a non-sublicensable, non-transferable, non-exclusive, non-assignable right to access and use the Software in accordance with the Agreement, and solely for Customer’s internal business purposes. Customer will not be provided with and shall have no right to any software code, and Adapty reserves the right to suspend Customer’s access to the Software for scheduled or emergency maintenance. The Customer is responsible for Authorized Users’ use of the Software in accordance with the Agreement.
2.2. Customer shall not and shall not allow its Authorized Users to (a) provide access to the Software to any third party (except Authorized Users) or otherwise permit a third party (except Authorized Users) to use or benefit from the Software, (b) copy, modify, or reverse engineer the Software or otherwise attempt to discover any source code or underlying technical information, (c) use the Software in breach of any applicable laws, regulations, embargoes, restrictive measures; (d) access, store, or transmit any viruses, spam, or duplicative messages, or any material that is unlawful or harmful, (e) use the Software: (i) to try to gain unauthorized access to or disrupt any service, device, data, account or network, (ii) send or store any content that is unlawful, abusive, or obscene or (iii) to send, store, or use any content in a manner which infringes Intellectual Property Rights.
2.3. Customer is responsible for (i) all activity occurring under Customer’s account(s); (ii) Customer Content and shall hold Adapty and its affiliates harmless and indemnify them for all claims, losses, damages, liabilities, costs (including legal fees) and expenses arising out of or relating to Customer Content.
2.4. Adapty retains all rights, title, and interest (including, but not limited, to intellectual property rights) in and to the Adapty Software and all improvements, enhancements, or modifications thereto, and anything developed and delivered under this Agreement.
2.5. The rights granted under this Agreement apply only to the Customer entity that enters into the applicable Order Form. The Customer may not extend its rights under any Order Form to its affiliates unless otherwise agreed in the Order Form.
2.6. Customer may from time to time provide Adapty suggestions or comments for enhancements or improvements, new features or functionality, or other feedback (“Feedback”) regarding the Software. Adapty will have full discretion to determine whether to proceed with the development of any requested enhancements, new features, or functionality. Adapty will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
2.7. Notwithstanding anything to the contrary, Adapty shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer Content and data derived therefrom), and Adapty will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software, and (ii) disclose such data solely in aggregate or other de-identified forms.
2.8. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
3. FEES AND PAYMENT
3.1. Fees will be invoiced according to the then-current pricing available at https://adapty.io/pricing at the moment of the agreement or as specified in the separate Order Form if signed between the Parties. If Customer’s use of the Software exceeds the usage limitations or otherwise requires the payment of additional fees as per the then-current pricing or any separate Order Form, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
3.2. All payment obligations are noncancelable, and all amounts paid are non-refundable.
3.3. All Fees are billed monthly (unless otherwise agreed in the separate Order Form) starting from 1) the date of the first payment or 2) the Initial Term Start Date specified in the separate Order Form, whichever is earlier(“Payment Due Date”). All payments shall be made in the currency indicated in the Order Form in full and cleared funds without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law) on or within ten (10) business days after the Payment Due Date. The Customer shall provide Adapty with complete and accurate billing and contact information.
3.4. If payment has not been made under clause 3.3. above, then without limiting any other right or remedy available to Adapty, Adapty reserves the right to charge a late fee of 1.5% of the invoice amount per day (“Late Fee”) and/or immediately suspend the Customer’s access to the Software and the API. Prior to charging Late Fee, Adapty may but is not obliged to contact the Customer regarding the delinquency and verify receipt of the applicable invoice.
3.5. All sums payable under the Agreement are exclusive of value-added tax (VAT) or any other direct, transactional, or local sales taxes, for which Customer shall be responsible.
3.6. If Customer believes that Adapty has billed Customer incorrectly, Customer must contact Adapty no later than five (5) days after receipt of invoice in order to receive an adjustment. Inquiries should be directed to Adapty’s contact email set forth in the applicable Order Form or on the website.
3.7. Adapty reserves the right to change the Fees or applicable charges and to institute new charges and Fees with prior notice to the existing Customer. Updated Fees shall be applicable to the existing Customer after the renewal of the current Term.
4.1. In order to use the Software, the Customer must register for an account. To create an account, the Customer will be required to provide certain information and the Customer will establish a username and a password. The Customer agrees to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. Adapty reserves the right to suspend or terminate Customer’s account if any information provided during the registration process or thereafter proves to be inaccurate, not up-to-date, or incomplete. The Customer is responsible for maintaining the security of the Equipment, its account, and passwords. Customer agrees not to disclose its password to any third party and to take sole responsibility for any activities or actions under its account, whether or not Customer has authorized such activities or actions. The Customer will immediately notify Adapty of any unauthorized use of its account.
5. LIMITED WARRANTY AND DISCLAIMERS
5.1. CUSTOMER AGREES THAT ADAPTY HAS MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO CUSTOMER REGARDING THE SOFTWARE OR RESULTS FROM USING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO THE CUSTOMER ‘AS IS’ WITHOUT WARRANTY OF ANY KIND. ADAPTY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION ADAPTY DOES NOT WARRANT: (a) THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (b) THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS; (c) THAT ANY INFORMATION PROVIDED THROUGH THE SOFTWARE IS ACCURATE OR COMPLETE; (d) THAT THE SOFTWARE WILL ALWAYS BE AVAILABLE, UPDATED OR UPHELD BY ADAPTY.
5.2. Adapty is not responsible for any delays, delivery failures, or other loss or damage resulting from the transfer of data over communications networks and facilities that are not owned or directly controlled by Adapty. The Customer acknowledges that the Software may be subject to problems inherent in the use of such communications facilities.
5.3. In the event of any loss or damage to Customer Content, Customer’s sole and exclusive remedy shall be for Adapty to use reasonable commercial endeavors to restore the lost or damaged Customer Content from the latest backup.
6.1. Subject to clause 6.2., Adapty, at its sole expense, agrees to defend Customer against any third party claim that the Software directly infringes a third party’s Intellectual Property Right (an “Infringement Claim”), and indemnify Customer from the resulting direct costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (a) Customer promptly notifies Adapty in writing of the Infringement Claim; (b) Adapty has sole control of the defense and all related settlement negotiations; (c) Customer provides Adapty with the information, assistance and authority to enable Adapty to perform its obligations under this Section 6; and (d) Customer makes no admission of liability and does not compromise the ability of Adapty to defend the claim. The Customer may not settle or compromise any Infringement Claim without the prior written consent of Adapty.
6.2. Adapty shall have no liability or obligations for an Infringement Claim pursuant to this Section 6 to the extent that it results from: (a) modifications to the Software made by a party other than Adapty; (b) the combination, operation or use of the Software with non-Adapty products; (c) Customer’s use of the Software; or (d) use of third party software, technology or any derivatives or other adaptations thereof not embedded by Adapty into the Software. This Section 6 sets out Customer’s sole and exclusive remedies and Adapty’s entire liability with respect to claims subject to indemnification under this Section, including claims for infringement or violation of third-party Intellectual Property Rights by the Software.
6.3. The Customer agrees to indemnify, hold harmless and defend Adapty, at the Customer’s expense, from any and all third-party claims, actions, proceedings, and suits brought against Adapty or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys’ fees and other litigation expenses) incurred by Adapty or any of its officers, directors, employees, agents or affiliates, arising out of, or relating to (i) the Customer’s breach of license use limitations under clause 2.2.; (ii) the Customer’s breach of sanctions and export controls provision under clause 12.11, (iii) the Customer’s use of the Software in violation of applicable laws, rules or regulations; or (iv) Customer Content.
7. LIMITATION OF LIABILITY AND DAMAGES
7.1. SUBJECT TO CLAUSES 7.2, 7.3, AND 7.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY, OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO OR ARISING OUT OF THE AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND PAYABLE TO ADAPTY (WHETHER OR NOT INVOICED) UNDER THE AGREEMENT IN THE YEAR PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
7.2. SUBJECT TO SECTIONS 7.3 AND 7.4, NEITHER PARTY WILL BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (B) LOSS OF REVENUES; (C) LOSS OF PROFITS; (D) LOSS OR INACCURACY OF DATA.
7.3. THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 7 SHALL NOT APPLY TO BREACHES OF LICENSE RESTRICTIONS SET OUT IN SECTION 2, INDEMNIFICATION OBLIGATIONS IN SECTION 6, CONFIDENTIALITY OBLIGATIONS IN SECTION 8, AND CUSTOMER’S PAYMENT OBLIGATIONS.
7.4. NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
7.5. IF ANY CLAIM ARISES BY REASON OF A LIABILITY THAT IS FUTURE, CONTINGENT, AND/OR UNQUANTIFIABLE, NEITHER PARTY SHALL NOT BE UNDER ANY OBLIGATION TO MAKE ANY PAYMENT FOR SUCH CLAIM UNTIL SUCH TIME AS THAT LIABILITY BECOMES AN ACTUAL LIABILITY OR IS CAPABLE OF BEING QUANTIFIED. NEITHER PARTY SHALL NOT BE ENTITLED TO REIMBURSEMENT OR RESTITUTION MORE THAN ONCE IN RESPECT OF ANY PARTICULAR LOSS OR DAMAGE SUFFERED IN RESPECT OF THE SAME CLAIM.
8. CONFIDENTIALITY AND PROPRIETARY INFORMATION
8.1. A Party (the “Receiving Party”) may receive Confidential Information of the other Party (the “Disclosing Party”) and the Receiving Party shall keep all such Confidential Information confidential and protect it by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion.
8.2. The Receiving Party shall not use the Confidential Information for its own purposes other than as provided in the Agreement nor disclose Confidential Information to any person other than such Party’s Authorized Users, or Adapty’s subprocessors, who have a need to know that Confidential Information provided that the Receiving Party remains responsible for the confidentiality of the information.
8.3. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations under and in accordance with the Agreement.
8.4. In the Agreement, “Confidential Information” means business information of a confidential or proprietary nature (including trade secrets and information of commercial value), including without limitation, pricing, software, source code and underlying technical or business information, which relates to the Disclosing Party that is disclosed or provided to Receiving Party by or on behalf of Disclosing Party pursuant to the Agreement; provided, however, that Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is input into the Software or (v) is independently developed by the Receiving Party.
8.5. This Section shall apply during the Term of this Agreement, and for three (3) years after the Agreement’s termination or expiry.
9. EFFECTIVE DATE AND TERM
9.1. The Agreement shall become effective on the date the Customer signs the Order Form which references the Agreement (the “Effective Date”) and shall continue for a period of one (1) month, or any other period of time specified in the separate Order Form (“Initial Term”). Each Order Form shall automatically renew for the same term (each, a “Renewal Term”, together with the Initial Term, the “Term”) on Adapty’s then-current terms and conditions unless either party provides notice (via email shall suffice) of its intent not to renew at least thirty (30) days in advance before the end of the Initial Term or current Renewal Term. The number of prolongations is unlimited.
10. TERMINATION AND SUSPENSION
10.1. Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Agreement that has not been cured (if curable) within three (3) business days of the effective date of such written notice requiring the remedy of such breach or either Party (a) announces cessation of its entire business or becomes insolvent; (b) elects to dissolve and wind-up its business; (c) makes a general assignment for the benefit of creditors; or (d) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property.
10.2. Adapty may terminate or suspend Customer’s access to the Software, without prior notice or liability, at any time and for any reason, including if (a) Customer’s account is past due, or (b) Customer’s use of the Software breaches Section 2 or harms, unduly burdens or impairs performance of the Software without prejudice to Adapty’s other remedies in respect of the applicable breach.
10.3. Upon termination of the Agreement, the rights granted under Section 2 will terminate and Customer shall promptly destroy all Adapty’s Confidential Information and Adapty will remove access to the Software.
10.4. If this Agreement is terminated by Customer with no fault of Adapty or due to a material breach by Customer, then Customer shall pay in full all outstanding Fees payable through the remainder of the Term of each outstanding Order Form or if Customer has prepaid any Fees, then those Fees are nonrefundable. If this Agreement is terminated by Adapty with no fault of the Customer or due to a material breach by Adapty, then Adapty shall refund Customer on a pro-rata basis any prepaid Fees.
10.5. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry. Adapty shall be under no liability in respect of any claim and any such claim shall be wholly barred and unenforceable unless notice of a such claim shall have been served upon Adapty by within no later than the first anniversary of the Agreement termination, provided that the liability of the Company against which any claim specified in such notice shall have been made shall absolutely determine and cease (if such claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of the claim shall not have been commenced by being both properly issued and validly served on the Company within 6 months after giving of such notice.
11. GOVERNING LAW AND JURISDICTION
11.1. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
11.2. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The International Expedited Procedures of the International Centre for Dispute Resolution shall apply regardless of the amount in dispute. The place of arbitration shall be Dover, Delaware, USA, however, the Parties agree that in case an oral hearing is necessary, it shall be conducted via video, audio, or other electronic means. The language of the arbitration shall be English. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
12.1. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Software, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written relating to that subject matter. To the extent there is any conflict or inconsistency between the Terms and any Order Form signed by both Parties, the Order Form shall prevail to the extent of any such conflict or inconsistency.
12.2. Modifications. Adapty may change these Terms from time to time at its discretion. The date on which the Agreement was last modified will be updated at the bottom of these Terms. Adapty will provide Customer with reasonable notice prior to material amendments or modifications taking effect, either by emailing the email address or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Software after the effective date of the revised Terms, such access and use will constitute Customer’s acceptance of the revised Terms beginning at the next renewal period or, if Customer enters into a new Order Form with Adapty, as of the date of execution of such Order.
12.3. Use of Customer’s logo in marketing. By using the Software, Customer gives Adapty the right to use Customer’s company name and logo, including registered as a trademark, in any of Adapty’s marketing materials and on the website, and agrees to participate in a case study that may be published on Adapty’s website and/or in any marketing materials.
12.4. Waiver. Any waiver of any provision of the Agreement must be in writing and will not be deemed a waiver of any other provision.
12.5. Third-party rights. The Agreement does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Agreement, their successors, and permitted assignees shall have any right to enforce any of the terms of the Agreement, except where expressly provided otherwise.
12.6. Assignment. The Customer may not assign the Agreement without Adapty’s prior written consent. Adapty may freely assign its rights under the Agreement. These Terms are binding upon, and inure to the benefit of the parties and their respective successors and assigns.
12.7. Severability. Each provision of the Agreement shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable, or invalid by a court, the other provisions of the Agreement shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that the Agreement shall otherwise remain in effect.
12.8. Notice. Either Party will deliver all notices, approvals, or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement, via e-mail (in each case to the email address stated in the Order Form). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Adapty may also deliver all notices by posting to the website or Customer’s account.
12.9. Force majeure. A delay by either Party in performing its obligations will not be a breach of the Agreement if caused by an event beyond the reasonable control of such Party. The affected Party will notify the other Party of such an event and resume performance as soon as possible.
12.10. Independent contractors. Nothing in the Agreement is intended to create a joint venture, partnership, agency, or employment relationship between the Parties.
12.11. Sanctions and export controls. Customer must not access, use, import, or export the Software: (i) in or relating to any country or territory that is the subject or target of comprehensive trade or economic sanctions imposed by the U.S. government (currently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, and the Donetsk People’s Republic or Luhansk People’s Republic); (ii) for the benefit or on behalf of any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State (including OFAC’s List of Specially Designated Nationals and Blocked Persons), or any person owned 50 percent or more by such person; or (iii) otherwise in violation of any U.S. sanction, embargo, prohibition or restriction.
Last update: March 15, 2023.