HARPS Terms of Service
Effective date: October 28, 2018
These HARPS Terms of Service (including the Terms of Sale as defined in section 1.0 and the binding arbitration clause and class action waiver in section 6.5 below; collectively the "Agreement") is by and between Aplix Corporation, a Japanese corporation ("Aplix") and the person or entity registering a HARPS account with Aplix and thereby agreeing to be bound by this Agreement ("Client"). Aplix develops and sells hardware IoT sensor modules and devices which upload the sensor values to the cloud server, develops and licenses related software, and manages a cloud-based network service, for purposes of enabling Internet-of-Things (IoT) communication and interaction between consumer and commercial products and a mobile device application and a web browser. Client wishes to purchase access to Aplix technology, products and services pursuant to this Agreement.
Aplix may agree to sell Aplix certain hardware products ("Products") to Client via Client's Aplix-accepted purchase orders ("Binding Orders") under the then-current Aplix Terms and Conditions of Product Sales that accompany Aplix's acceptance of Client's purchase order, or, if none, the terms set forth below in Schedule A ("Terms of Sale"), for the version and model of Products, and at the prices and delivery terms, specified in the Binding Order.
2.1 Aplix may provide to Client certain development, consulting, application hosting, SaaS, and professional services to facilitate the use of the Products ("Services"). As part of such Services, the Products are enabled to communicate with Aplix's standard Product-compatible mobile device application (the "App"), available on application platforms, such as Google Play, Apple iTunes App Store, Amazon, and/or other similar platforms, that Aplix in its sole discretion elects to support ("App Store(s)"). Aplix makes no warranties as to App Store acceptance and will have no liability for failure or delays of the application to be accepted, for withdrawal of acceptance, for lack of App Store accessibility for any reason, errors in transmission of payments or reporting, or for the acts and omissions of the owners or operators of any App Store or changes in any App Store policies. Client acknowledges and agrees that Aplix and its successors will be the sole and exclusive distributor of the App. At or after the end of the subscription term, availability of the App and all Services related to the App may automatically terminate without notice.
2.2 Client will provide to Aplix, and Client acknowledges that Aplix’s ability to successfully provide Services depends on, reasonable and necessary cooperation and assistance.
2.3 Client hereby grants to Aplix and its affiliates the right to copy, distribute, deploy, display, perform and modify "Client Property" (defined as any content, materials, information, software, web pages and other works that Client provides to Aplix or directs Aplix to use in furtherance of Aplix's provision of Services, or for incorporation into or for display with the App), in furtherance of Aplix's provision of Services and as necessary or desirable for Aplix's use with the App.
All payments required by this Agreement will be made in US dollars, are nonrefundable and are not subject to set-off, retention or counterclaim. Client shall pay to our standard Aplix fees. Current pricing information can be found at https://www.harps4.com/price or Client may contact Aplix via the inquiry form. Monthly charges are imposed, and Client’s card will be charged, at the moment usage hits or exceeds the level of hardware connected to the cloud server for which monthly subscription fees apply. By providing a billing account, Client represents and warrants that Client: (a) is authorized to use the billing account provided and that any payment information provided is true and accurate; and (b) authorizes Aplix to charge Client using such provided billing account. Aplix may bill Client at the same time for more than one prior billing periods for amounts that has not previously been processed. Client will not create multiple accounts or otherwise act in a manner intended to avoid incurring fees. All payments required by this Agreement are exclusive of taxes or similar charges and Client will be responsible for the payment of all such taxes (excluding only taxes based on Aplix's income). To the extent Client is required by local law to withhold or deduct taxes based upon Aplix's income from any payments owed hereunder, such payments will be increased (grossed up) in such amounts as would have been received by Aplix as if no such withholding or deduction was required.
4.0 TERM AND TERMINATION
4.1 A subscription will continue until terminated in accordance with this section 4.0 and will terminate at any time: (a) upon thirty days written notice by the non-terminating party in the event of a material breach by the party given notice, provided such party fails to cure the breach within such thirty day period; (b) at Aplix's option in the event that either party ceases to conduct its operations in the normal course of business, becomes insolvent, files for or becomes the subject of a bankruptcy petition, or is placed in receivership; or (c) at Aplix’s option in the event Client attempts to assign or transfer in whole or in part this Agreement in violation of this Agreement.
4.2 Either party may terminate Services or any subscription for convenience on thirty days written notice to the non-terminating party, provided that Client's right to terminate for convenience is conditioned on Client's compliance with the payment obligations of this Agreement. Aplix will provide Client with instructions on how to cancel the subscription. Client’s effective date of cancellation must be before the renewal date to avoid being billed for the renewal. Client is not entitled to any pro-rata or partial refunds for mid-cycle cancellations. For clarity, at the end of the Subscription Term, or upon termination of Services for any reason, Aplix will have no further obligations to host and maintain the App, and Client shall cease any use and promotion of the App.
5.0 LIMITATION OF LIABILITY
5.1 All "Results" (defined as those works, items and materials that Aplix delivers to Client or develops pursuant to the performance of Services, including the App and related web and App Store pages), Products and Services are provided as-is, as-available, and with all faults. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, TITLE OR NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE PRACTICE, ARE HEREBY DISCLAIMED. Aplix assumes no responsibility or liability under this Agreement or otherwise for defects, errors, deficiencies, or delays to the extent resulting from causes beyond Aplix’s reasonable control, including defects, errors or failures caused by the operating system, the network environment, end users, external viruses, third party applications, platforms, or data delivery services, or changes in any of the foregoing, and Client hereby releases and holds harmless Aplix from any such problems. For clarity, Client acknowledges that the radio signal emitted from the Products is an open signal that is capable of being received by any conforming device and application.
6.0 GENERAL TERMS
6.1 This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither party may act in a manner that expresses or implies a relationship other than that of independent contractor, nor bind the other party. Neither party's employees are eligible for the employee benefits or compensation offered by the other party. Client will have no right to control the means, manner or method by which Aplix performs Services. Aplix has sole discretion over assignment and replacement of Aplix personnel involved in provision of Services, and may subcontract Services. No exclusivity or exclusive rights are provided by Aplix under this Agreement. Notwithstanding any other provision of this Agreement, Aplix and its staff may freely utilize in perpetuity and without obligation to Client: (a) general knowledge, experience, skills and know-how acquired during the performance of Services; and (b) any feedback, benchmarks, requirements, recommendations, ideas, and error corrections provided by Client to Aplix relating to Aplix's products and services. Nothing in this Agreement constitutes an assignment or transfer of ownership of either party's intellectual property rights.
6.2 Client hereby authorizes Aplix to describe Client as a customer of Aplix products in Aplix presentations, web sites, advertisements and publicity. Nothing in this or any other agreement shall be construed to preclude Aplix from compliance with disclosure obligations imposed by the securities laws or regulations of any government or public stock exchange, and Client consents to disclosures as required by such laws or regulations. Notwithstanding any other provision of this Agreement, neither party is granted any interest, right, title or license to, or is to own or be the beneficiary of an assignment of, the other party's trademarks, service marks, domain names, trade names, designs, trade dress or other intellectual property rights, and will not: (a) challenge the ownership or use of same; (b) attempt to register same; or (c) incorporate same into such party's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. Aplix and/or its licensors retain ownership rights in, and as between the parties, Aplix is and will be the sole and exclusive owner of the Results and all intellectual property rights associated therewith.
6.3 Except as otherwise set forth in this Agreement, this Agreement may not be assigned or transferred, or its rights or obligations assigned or delegated, by either party, in whole or in part, without the prior written consent of the other party, and any purported delegation, transfer or assignment in violation of this section will be void; provided, however, that Aplix may assign this Agreement to an affiliated entity or in the event of a merger, acquisition or sale of business or assets, without the need for prior consent.
6.4 This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. The terms "includes" and "including" will not be construed to imply any limitation. Except as expressly noted, this Agreement confers no third party rights and creates no third party beneficiaries of any kind. This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, negotiations, understandings, representations and warranties, and prevails over any conflicting or additional terms of any quote, order or other communication between the parties relating to its subject matter. This Agreement may only be modified by a writing signed by both parties' authorized representatives. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any of the provisions of this Agreement are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, such provisions are waived, amended or reformed to the extent necessary for the Agreement to be otherwise enforceable in such jurisdiction.
6.5 This Agreement, the Subject Matter, and all related disputes will be governed by the procedural and substantive laws of California and controlling US law. The choice of law rules of any jurisdiction that would require the application of another state's laws, and the United Nations Convention on the International Sale of Goods, will not apply. A party prevailing in any litigation or arbitration related to the Subject Matter will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys' fees. Any dispute between the parties related to the Subject Matter that cannot be resolved informally will be referred to binding arbitration to JAMS (jamsadr.com) in San Francisco, California in accordance with the comprehensive and expedited rules of same in effect at the time of arbitration, as the sole and exclusive means of such dispute resolution. The arbitral proceedings will be conducted in the English language, and venue and all hearings will take place in San Francisco, California. The exisstence of any dispute between the parties, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, will be kept strictly confidential, except as required by law or for enforcement. All awards may if necessary be enforced by any court having jurisdiction, in the same manner as a judgment in such court. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Nothing herein will be deemed to preclude either party from pursuing provisional or injunctive relief at any time (thereby bypassing arbitration) in any court of competent jurisdiction (and the parties acknowledge that either party's right to do so is not arbitrable). Regardless of any statute of limitations to the contrary, any claim or cause of action brought by Client arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
Schedule A – Terms & Conditions of Product Sales
These Terms and Conditions of Product Sales, including the Warranty Statement as defined in paragraph (H) below (“Terms”) constitute a legally binding contract between Aplix Corporation, organized under the laws of Japan (“Aplix”), and a purchaser (“Purchaser”) of Aplix hardware modules (the “Product(s)”), as more particularly described and confirmed in a purchase order submitted by Purchaser from time to time to Aplix for Aplix's acceptance (in Aplix's sole discretion), and which will apply to and govern Purchaser’s individual orders of the Products (“Purchase Order(s)”). All Purchase Orders issued to Aplix by Purchaser will be governed by these Terms, notwithstanding any (preprinted or other) terms and conditions on Purchaser's Purchase Order. Any terms in Purchaser's documents or communications are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given.
A) Shipments are INCOTERMS (2010) FCA Aplix location, Purchaser's designated carrier, except as Aplix may otherwise agree in its Purchase Order acceptance. Purchaser bears risk of loss upon Aplix's delivery to carrier (regardless of whether Aplix assumes responsibility for shipment). If Purchaser requests Aplix to arrange for shipment, Purchaser will pay Aplix for all costs of shipment, insurance and associated expenses, and Aplix may utilize any reasonable shipping method available. Aplix may charge setup and/or handling fees for orders of less than a minimum unit threshold as set by Aplix. Purchaser will be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. Aplix may deliver Products in installments or partial shipments as Aplix elects and a delay or default in delivery of any installment will not relieve Purchaser of the obligation to accept and pay for other deliveries. Delivery dates are estimates. Title to the Products transfers to Purchaser upon payment in full.
B) Prior to using or distributing the Products or any systems or components that include the Products, Purchaser will thoroughly test the Products and such systems and components and the functionality of the Products as used in same. Purchaser will promptly inspect the Product upon its arrival at the place of delivery and will notify Aplix, within five business days, if Purchaser finds any nonconformity or defect in the Products. Upon the expiration of such five business day period with no written notice of rejection submitted to Aplix, Purchaser will be deemed to have accepted the Products. Purchaser acknowledges that this right of inspection satisfies inspection rights under applicable law.
C) No cancellation or rescheduling of Purchase Orders by Purchaser within thirty days of Aplix's estimated shipping date will be permitted. Any cancellation or rescheduling by Purchaser more than thirty, but less than ninety, days before Aplix's estimated shipping date may result in a charge to Purchaser, as determined by Aplix. Purchase Orders may be cancelled or rescheduled by Purchaser more than ninety days before Aplix's estimated shipping date without charge or penalty. Notwithstanding the foregoing, if a Purchase Order concerns or the order delivery is to include custom components (specially made for Purchaser), or components branded with Purchaser-designated brands, or specially-ordered or -made third party parts or components, the entire Purchase Order is non-cancelable and non-refundable immediately upon issuance. Aplix may cancel any accepted Purchase Order at any time if written notice of cancellation is given at least thirty days or more prior to the scheduled delivery date.
D) Purchaser and its affiliates, and its and their employees, officers, and agents, will not: (i) remove the shielding case for the Products; (ii) attempt to obtain the model name or number of components within the Products; (iii) use an antenna in conjunction with the Products other than as specified by Aplix; (iv) use an external amplifier in conjunction with the Products; (v) remove, suppress, replace or conceal labels associated with the Products or use or sell Products with altered or missing labels; or (vi) reverse engineer, decompile, breakdown, disassemble or otherwise attempt to derive the source code, data structures, interfaces, techniques, processes, algorithms, know-how or other information from the Products (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, Purchaser may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Products, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (vii) Reverse Engineering is strictly necessary to obtain such information; and (viii) Purchaser has first requested such information from Aplix and Aplix failed to make such information available under reasonable terms and conditions. Any information supplied to or obtained by Purchaser under this paragraph will not be disclosed to any third party.
E) For those Products that have secured certifications and/or regulatory approvals of standards-setting organizations (such as the Bluetooth SIG) and relevant governmental entities, such approvals and certifications apply only if the Products are used "AS IS" and without modification. The following activities are not covered by any such approvals/certifications, and Aplix assumes no responsibility or liability for any losses, claims, damages, or other ramifications arising from or related to such activities: (i) changes, revisions, or supplements to the switch and sensor other than those as set out in the user manual; (ii) modifications to wireless features, for example, by changing the external amplifier circuit; (iii) modifications or deletions of the circuit in whole or in part; (iv) use with antenna cables other than those designated by Aplix; (v) implementing any changes to the Product's frequency, voltage, power, or current; (vi) any other changes, extensions or alterations of the functionality (inputs and outputs) of the Products not approved by Aplix in writing in advance; and (vii) misrepresentations or inaccuracies as to Product source or branding.
F) If, at the time Aplix's performance hereunder, an export license is required for Aplix to lawfully export Products or technical data, then the issuance of the appropriate license to Aplix or its contractor will constitute a condition precedent to Aplix's obligations hereunder. Purchaser will comply with requirements of all applicable laws and regulations regarding the import and subsequent export of the Products, will be solely responsible to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, or software acquired from Aplix, and will not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, or software directly or indirectly to any person, firm, entity, or country prohibited by applicable laws or regulations. Any product export classification made by Aplix will be for Aplix's internal use only and will not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required.
G) Purchaser will ensure that (i) all use, distribution, and sale of the Products will be in full compliance with applicable laws and regulations in all jurisdictions where the Products are used, distributed or sold, including telecommunications laws and regulations and related certifications; (ii) that all products containing the Product will comply with the standards and specifications of the Bluetooth Special Interest Group (SIG); and (iii) Products as sold by or for Purchaser are fit for their intended purposes.
H) Aplix provides a limited warranty for its Products, available at https://www.aplix.co.jp/en/legal/warranty.php ("Warranty Statement"). Purchaser hereby acknowledges and agrees to the terms of the Warranty Statement and agrees to be bound thereby.(end of HARPS Terms of Service)