These Apprentice Terms of Service govern Customer’s use of the Software and Devices. Capitalized terms have the definitions set forth below.
Customer accepts and agrees to the terms of these Terms of Service by (1) clicking a box indicating acceptance, (2) executing an order form or statement of work (“SOW”) that references this Agreement, or (3) using the Software. If the individual accepting these Terms of Service is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these Terms of Service, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting these Terms of Service does not have such authority, or does not agree with the terms and conditions, such individual must not accept these Terms of Service and may not use the Software.
These Terms of Service were last updated on August 4, 2022. They are effective between Customer and Apprentice as of the date of Customer's acceptance (the “Effective Date”).
1.1 “Affiliate” means any entity Controlled by, Controlling, or under common Control with a party to the Agreement. As used in this definition, “Control” means either the direct or indirect control of more than 50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election or appointment of the corresponding managing authority).
1.2 “Agreement” means these Apprentice Terms of Service and any exhibits, schedules, amendments, addenda, or appendices hereto and documents incorporated herein and any order forms or SOWs referencing these Apprentice Terms of Service.
1.3 “Confidential Information” has the meaning set forth at Section 6.
1.4 “Customer Data” means any and all information entered or uploaded to the Software by or on behalf of Customer or an Affiliate.
1.5 “Devices” means the devices provided by Apprentice in connection with Users’ use of the Software. Devices may include Apple devices, Realwear devices, hardware, and other devices as identified in an order form.
1.6 “Documentation” means the documentation, user manuals, help files, videos, and other materials that describe the features, functions and operation of the Devices and Software.
1.7 “Force Majeure Event” has the meaning set forth in Section 18.
1.8 “Software” means Apprentice’s software-as-a-service application identified in an order form.
1.9 “Users” means employees or contractors of Customer who are authorized to access the Software using a user identifier and password provided to Customer by Apprentice or set up by Customer.
2. Term and Termination
2.1 Term of Agreement and Renewal. The initial term of the Agreement shall be for a period of one year from the Effective Date (the “Initial Term”). At the expiration of the Initial Term or any Renewal Term, the Agreement will automatically renew for subsequent one year periods (each a “Renewal Term”) unless one party provides the other party with written notice of its intent to amend or not renew the Agreement at least 90 days prior to the end of the then-current term. The Agreement will automatically terminate upon the expiration of all order forms and SOWs entered into pursuant to the Agreement.
2.2 Term of Order Forms and SOWs. The subscription term of each order form or term of each SOW will be as set forth in the order form or SOW, as applicable. Except for order forms related to Pilot Subscriptions, order forms automatically renew for additional one year periods with the same fees and payment terms as the expiring order form, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the subscription term specified in such order form. If the Agreement expires, order forms and SOWs that were effective prior to the expiration of the Agreement will continue to be governed by the terms and conditions of the Agreement and the Agreement shall be deemed extended, for the purposes of such order forms or SOWs only, through expiration of the then-current subscription term of any such order forms or then-current term of any such SOWs.
2.3 Right to Terminate. Either party may terminate the Agreement in the event that the other party has materially breached the Agreement and such breach has not been cured (or, if the breach is not capable of being cured, discontinued with appropriate changes to ensure that it is not repeated) within 30 days of written notice of breach from the other party. Either party may terminate the Agreement immediately if the other party terminates or suspends its business as a result of bankruptcy, insolvency or similar event.
3. Software Usage Rights
3.1 General Rights. Subject to Customer’s compliance with the terms and conditions contained in the Agreement, Apprentice grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software and Documentation during the applicable subscription term for Customer’s internal business purposes. The Software shall be made available to Customer as a service. Apprentice will host and retain physical control over the Software and make the Software available through the Internet for access, use and operation by Customer through a web-browser. Each order form will set forth any additional usage limitations for the Software (e.g., user limits, geographic limits), and Customer is restricted to usage consistent with such usage limitations. Customer agrees to submit to reasonable audit of its compliance with any usage limits upon reasonable notice by Apprentice not more than once per calendar year.
3.2 General Restrictions. Customer shall not, and shall not permit any of its Users or any third parties to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Software or Devices, or otherwise use, exploit, make available or encumber any of the Software or Devices to or for the benefit of any third party; (b) use or demonstrate the Software or Devices in any way that is in competition with Apprentice; (c) reverse engineer, disassemble or decompile the Software or Devices, or attempt to derive the source code or underlying ideas or algorithms of any part of the Software or Devices; (d) remove any notice of proprietary rights from the Software or Devices; (e) copy, modify, translate or otherwise create derivative works of any part of the Software or Devices; (f) use the Software or Devices in a manner that interferes or attempt to interfere with the proper working of the Software or Devices, or any activities conducted in connection with the Software or Devices, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Software or Devices; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Software in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Software or Devices; (h) use the Software or Devices in a manner which interferes with or disrupts their integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Software or Devices in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (j) use the Software or Devices to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) copyrighted materials to which Customer does not have sufficient rights; or (iii) other materials prohibited by applicable international, federal, state, or local laws and regulations; or (k) use the Software or Devices for any purpose other than Customer’s internal business purposes. Any breach of the Agreement by a User shall be deemed to be a breach by Customer, and Customer is liable for such breaches.
3.3 Customer Obligations. Customer shall use commercially reasonable efforts to safeguard User’s access credentials and prevent unauthorized access to, or use of, the Software and Devices, and notify Apprentice promptly of any unauthorized use of any access credentials, any other known or suspected breach of security, or any such unauthorized use of the Software and Devices known to Customer. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any User to access the Software and Devices from the Internet. Customer is required to accept a minimum of two new Software releases per year, with the year starting on the Customer’s go-live date for the relevant Software application.
Exhibit A contains terms applicable to the Devices.
5. Pilot / Proof of Concept
If Customer receives a subscription to the Software and a lease to Devices as part of a pilot or proof of concept (a “Pilot Subscription”), then the subscription term for the Software and the lease for the Devices subject to the Pilot Subscription is the period granted by Apprentice in the order form for the Pilot Subscription (the “Pilot Period”). Pilot Subscriptions are permitted solely for Customer’s use to determine whether to purchase a subscription to Apprentice’s commercially available software and may have limited functionality and features. Customer’s right to access and use the Pilot Subscription will terminate at the end of the Pilot Period unless Customer elects to purchase the same software-as-a-service application and lease the Devices under a separate order form with Apprentice. Notwithstanding anything to the contrary in the Agreement, Apprentice makes no warranty regarding the Pilot Subscription which is provided “as is” and “as available”. Further, any Customer Data in the Software will be permanently lost at the end of the Pilot Period.
6. Confidential Information
Each party agrees: (i) that it will use reasonable efforts (which shall be no less than the efforts used to protect its own confidential information of a similar nature) to prevent the disclosure of the other party’s Confidential Information to any person or entity, unless authorized by the other party; and (ii) that it will not use Confidential Information of the other party for any purpose other than as authorized by the Agreement or by the other party. Without restricting or otherwise limiting the exercise by a party of the rights and licenses expressly granted to it under this Agreement, Confidential Information may be disclosed to only such employees and agents of the receiving party on a need-to-know basis; provided in each case that such employees and agents are bound by a written agreement respecting such Confidential Information at least as protective as the terms of this section. As to Apprentice, the term “Confidential Information” includes information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person, the features and functions of the Software that are not available to the general public via the public internet (including screen shots of the same), future product plans, any Documentation or specifications provided to Customer, the commercial terms of the Agreement and any order form or SOW (but not the mere existence of the Agreement), audit, performance and security test results (whether performed by Apprentice or Customer), and any other proprietary, financial or business information supplied to Customer by Apprentice. As to Customer, the term “Confidential Information” includes information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person, login credentials for accessing the Software, Customer Data (including personally identifiable data), and any other proprietary, financial or business information supplied to Apprentice by Customer. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (i) is or becomes publicly known through no act or omission of the receiving party; (ii) is known to the receiving party prior to receipt from the disclosing party from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (iv) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, it shall not be a breach of the Agreement to disclose Confidential Information required to be disclosed pursuant to administrative or court order, government or regulatory investigation or requirement, or arbitration or litigation arising out of the Agreement; provided, however, that to the extent permissible, each party shall, in advance of any such disclosure promptly notify the other party in order to enable the other party reasonable time to seek a protective order with respect to the requested information or otherwise challenge or oppose the disclosure requirement.
Customer shall retain all right, title and interest to all Customer Data and Customer Confidential Information. Apprentice shall retain all right, title and interest in and to (i) the Software, the Documentation, all modifications and/or enhancements to the Software (regardless of the source of inspiration for any such enhancement or modification and regardless of whether Customer has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within the Software, (ii) Apprentice’s proprietary education or training content, and (iii) materials related to Apprentice’s professional services processes and methodologies. Notwithstanding any other term of the Agreement, Apprentice has the right to collect, use and analyze any deidentified information derived from Customer’s use of the Software and Devices (collectively, the “Deidentified Data”) for Apprentice’s lawful business purposes, including to improve and enhance the Software and Devices, and for other development, diagnostic, and corrective purposes in connection with the Software, Devices and any other Apprentice offerings. Apprentice may disclose Deidentified Data solely in aggregate form in connection with its business. Apprentice reserves to itself all rights that are not expressly granted pursuant to the Agreement.
8. DISCLAIMER OF WARRANTY
THE SOFTWARE AND DEVICES ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, APPRENTICE DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APPRENTICE DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
9.1 Infringement Indemnity. Apprentice will defend at its expense any claim, suit or proceeding (each a “Claim”) brought against Customer by a third party that Customer’s use of the Software or Devices as contemplated by the Agreement infringes any valid copyright, patent, trade secret, or any other intellectual property right of such third party, and Apprentice will pay all damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim. If the use of any Device or any portion of the Software by Customer has become, or in Apprentice’ opinion is likely to become, the subject of any claim of infringement, Apprentice may at its option and expense (a) procure for Customer the right to continue using such Device or portion of the Software as set forth hereunder; (b) replace or modify such Device or portion of the Software to make it non-infringing so long as it retains at least equivalent functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate the Agreement and provide a pro-rata refund of any amounts pre-paid from the date of termination through the end of the relevant subscription term. Apprentice will have no liability or obligation under this Section 9.1 with respect to any Claim to the extent caused by (w) use of the Software or Devices outside the scope of the Agreement; (x) compliance with or use of designs, data, instructions or specifications not provided by Apprentice; (y) modification of the Software or Devices by any person or entity other than Apprentice without Apprentice’s express written consent; or (z) the combination, operation or use of the Software or Devices with other applications, product(s), devices, equipment, hardware, software, data or services not provided by Apprentice. This section states the entire liability of Apprentice with respect to infringement of any third party’s patent, copyright, trade secret or other intellectual property right.
9.2 Indemnity Process. The indemnifying party will have the exclusive right to defend any indemnified claim (including the right to select and control the work of counsel) and make settlements thereof at its own discretion, except that the indemnifying party may not, without the indemnified party’s prior written approval, enter into any settlement of an indemnified claim that imposes a direct financial liability on the indemnified party or includes an admission of fault by the indemnified party. The indemnified party may not settle or compromise any indemnified claim, action or allegation, except with prior written consent of the indemnifying party. The indemnified party shall give such non-monetary assistance and information as the indemnifying party may reasonably require to settle or defend indemnified claims.
10. Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR ANY LOSS OF REVENUE, PROFITS, DATA OR DATA USE ARISING OUT OF THE AGREEMENT. APPRENTICE’S MAXIMUM LIABILITY IN CONNECTION WITH THE AGREEMENT, ON THE BASIS OF ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL BE LIMITED TO $25,000. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY (A) TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND (B) TO THE INDEMNITY OBLIGATIONS SET FORTH IN SECTIONS 9.1 AND 21.
11. Governing Law
The Agreement shall be interpreted and construed in accordance with the laws of the State of New Jersey, United States of America without regard to its conflict of laws provisions. Either party may seek emergency equitable relief at any time.
12. Export Control Laws
Each party shall comply with the export control laws of the United States which are applicable to the Software, and which may prohibit use of the Software in certain sanctioned or embargoed countries.
13. No Legal Advice
Apprentice shall not provide Customer with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Software, including those related to data privacy, or medical, pharmaceutical or health related data. Customer acknowledges that the Software may be used in ways that do and do not comply with such laws, rules or regulations and it is Customer’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. Customer acknowledges and agrees that not all features, functions and capabilities of the Software may be used in all jurisdictions, and Customer recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law. Customer is responsible for such Customer-specific use decisions and Apprentice disclaims all liability for such decisions.
14. Independent Contractors
Apprentice and Customer are independent contractors. Neither party has the authority to bind or make any commitment on behalf of the other party. None of either party’s employees are entitled to any employment rights or benefits of the other party.
15. Waiver, Entire Agreement and Amendments, Representations, Severability and Purchase Orders
The failure of either party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter. The Agreement encompasses the entire agreement between Customer and Apprentice with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. The Agreement may not be altered, amended or modified except by written instrument signed by the duly authorized representatives of both parties. Customer acknowledges and agrees that in entering into the Agreement it does not rely on any statement, representation (whether innocent or negligent) assurance or warranty (whether or not in writing) of Apprentice, or any other person (whether or not party to the Agreement) other than as expressly set out in the Agreement. Customer specifically agrees that it has not relied upon the future availability of any software, products, services, programs, modifications, enhancements or updates in entering into in the Agreement. If any provision, or portion thereof, of the Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect. The terms and conditions appearing on any purchase order issued by Customer for the Agreement, if any, shall not change, add to, or modify the terms or conditions of the Agreement and shall have no effect.
Customer may not transfer or assign the Agreement, including by merger or operation of law, without Apprentice’s prior written consent.
The provisions of the Agreement that are intended to survive termination or expiration of the Agreement in order to achieve the fundamental purposes of the Agreement shall so survive, including, without limitation, the provisions regarding confidentiality, disclaimer of warranties, limitation of liability, and return of Devices.
18. Force Majeure
Apprentice shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, flood, wind, storm, lightening, or similar act of God, or by embargo, acts of sabotage, terrorism, riot or civil unrest, internet outages, or mandatory compliance with any governmental act, regulation or request (each a “Force Majeure Event”).
All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth in the most recent order form and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
20. No Third-Party Beneficiaries
There are no third-party beneficiaries to the Agreement.
21. Customer’s Use of Third Party Licensed Data
To the extent Customer stores data in the Software that has been purchased or licensed from third parties, Customer is responsible for ensuring its use, processing, reporting against, combination, comingling and manipulation of such data is in compliance with its agreements with the data provider. To the extent permitted by law, Customer will, indemnify and hold Apprentice harmless against any claims by such third-party data providers arising from Customer’s use of such third-party data in the Software.
Exhibit A: Terms Applicable to the Devices
- Lease. Subject to the terms and conditions of the Agreement, Apprentice hereby leases to Customer, and Customer hereby leases from Apprentice, the Devices identified in the applicable order form for the subscription term. Devices are the property of Apprentice.
- Delivery. Shipping terms are FOB Origin, Apprentice’s place of business. Risk of loss of the Devices will pass from Apprentice to Customer when Apprentice makes the Devices available to a shipping carrier selected by Apprentice or Customer (with the consent of the other party). Delivery will be deemed made upon transfer of possession to the carrier. Apprentice will have no obligation to deliver the Devices until the applicable fees have been paid.
- Customer Obligations. Customer may use the Devices solely with the Software and in compliance with the Agreement and the Documentation. The Devices may only be used for Customer’s internal business purposes. Customer will only use the Devices in a careful and proper manner for which they are intended and described in the Documentation. Customer will, at Customer’s sole expense, keep and maintain the Devices clean and in good working order and repair during the subscription term in accordance with the Documentation. If any Device is lost, stolen, or damaged, Customer will pay Apprentice the replacement cost of such Device.
- Device Management.
(a)The IT administration and management of Devices will be conducted by Apprentice according to standards described in Apprentice’s Quality Management System (QMS) and Information Security Management System (ISMS).
(b) Devices will be replaced at no cost to Customer if (a) there is a catastrophic Device failure resulting in inability for Customer to use such Device or (b) Apprentice determines that the Device needs to be rotated, as communicated to Customer with reasonable advance notice. Devices will be replaced at Customer’s cost due to non-normal wear and tear, including, but not limited to, drops, environmental impact or any unplanned replacement request. Replacement Devices will be procured, configured and shipped ready for use by Customer.
(c) Notwithstanding the foregoing, future product versions and releases may require adjustment to Device management, Device make and model, and operator interface hardware by Apprentice without prior notice to Customer.
- Device Return. Customer will promptly return the Devices to Apprentice upon the first to occur of (i) Apprentice’s written request and (ii) upon any termination or expiration of the Agreement.