Apto Platform Agreement
Last updated February 23, 2023.
These terms and conditions ("Terms") relate to the Sandbox environment for the Apto Card issuing platform (the "Apto Platform") made available to developers for testing purposes and are a legally binding contract between you, the legal entity listed in your Apto account application ("you" or "your") and Apto Payments, Inc., a Delaware corporation, on behalf of itself and its Affiliates ("Apto" or "we").
PLEASE TAKE THE TIME TO READ THIS DOCUMENT CAREFULLY BEFORE YOU ACCESS OR USE ANY OF THE APTO MATERIALS AND THE APTO PLATFORM AS IT FORMS A LEGALLY BINDING CONTRACT BETWEEN YOU AND APTO.
BY APPLYING FOR AN ACCOUNT, AND ACCESSING OR USING THE APTO PLATFORM AND APTO MATERIALS YOU CONFIRM THAT YOU ACCEPT THESE TERMS, AGREE TO COMPLY WITH THEM AND BE BOUND BY THEM, AND AFFIRM THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE COMPANY NAMED IN YOUR ACCOUNT APPLICATION ("COMPANY"). IF YOU DO NOT AGREE TO THESE TERMS, APTO IS NOT WILLING TO GRANT YOU ANY RIGHT TO USE OR ACCESS THE APTO MATERIALS OR THE APTO PLATFORM. IN SUCH EVENT, YOU MAY NOT CREATE AN ACCOUNT, OR ACCESS OR USE THE APTO MATERIALS OR ANY OTHER SOFTWARE OR MATERIALS RELATING TO THE APTO PLATFORM.
SECTION 10.7 ALSO INCLUDES YOUR AGREEMENT TO RESOLVE DISPUTES BETWEEN YOU AND APTO THROUGH BINDING ARBITRATION, AND A WAIVER OF YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN ANY CONSOLIDATED OR CLASS ACTIONS AGAINST US. PLEASE READ IT CAREFULLY AND ONLY CONSENT TO THE TERMS OF THIS AGREEMENT IF YOU UNDERSTAND AND AGREE TO THE ARBITRATION PROVISION.
- Unless the context otherwise requires the following words and phrases have the following meanings:
- "Administrator" means the person specified by the Company to manage the Company’s use of and access to the Apto Materials and the Apto Platform, and who is authorized to act on the Company’s behalf;
- "Affiliate" means a company which, directly or indirectly, controls, is controlled by or is under common control of a party. The term "control" means the possession, directly, or indirectly, of the majority of the outstanding stock entitled to vote for the election of directors or persons performing a similar function;
- "Apto Materials" means the Developer Tools, specifications, files, guides, supporting materials, website, guides, technical specifications and all other proprietary materials that Apto makes available to you that relate to the Apto Platform (including any subsequent amendments and updates to, or new versions of, such materials that Apto makes available to you);
- "Apto Green Package Agreement" means an agreement entered into between you and Apto whereby Apto grants you the rights to use the Apto Platform to design, distribute, and manage Cards to your customers or personnel;
- "Card" means a virtual consumer or commercial credit, debit, or prepaid card or PAN (primary account number), issued by Apto, for testing purposes only; and which may be used by you to conduct test transactions;
- "Dashboard" means the web interface through which you may access the Developer Tools and test Cards;
- "Developer Account" means the account by which you access the Apto Platform and Apto Materials, and test and configure Cards;
- "Developer Tools" means the Apto application programming interfaces, software development kits, webhooks, the Apto Dashboard, and the Apto software libraries that may be accessed through the Apto Platform;
- "Feedback" means all feedback, suggestions, ideas, or enhancement requests you submit to Apto regarding the Apto Platform and the Apto Materials, and these Terms;
- "Intellectual Property Rights" means registered or unregistered trademarks, service marks, trade names, business names, design rights, database rights and any application for registration of any such rights; know-how, confidential information, trade secrets, franchise interests, license interests, patent rights, copyright interests in respect of software, systems content, utility models inventions and related rights; property rights, interest in any services, software, or hardware and all other similar property and proprietary rights;
- "Issuers" means the Apto financial institution partners on whose behalf Apto issues Cards through the Apto Platform.
- "Payment Network" means Visa, Mastercard, or any other card network or electronic payment network utilized by a financial institution to issue Cards.
- Unless the context otherwise requires the following words and phrases have the following meanings:
- LICENSE GRANT AND RESTRICTIONS.
- Subject to and expressly conditional on compliance by you with these Terms, Apto will grant to you, from the date that we approve your Developer Account application and grant you access to the Apto Platform (such license grant being at Apto's sole discretion), a non-exclusive, non-transferable, non-sublicensable, limited and revocable license to use the Apto Materials and the Apto Platform to permit you to create Cards for internal testing purposes, and to interact and experiment with the Developer Tools.
- You understand that the Cards you create are not active and cannot be used to make purchases, and that you are not permitted to create, issue, sell, offer to sell, distribute, deploy, supply or otherwise commercialize any Cards in any manner unless and until you and Apto have entered into a valid and binding Apto Green Package Agreement.
- Except as expressly set forth in these Terms, the licenses granted to you in these Terms do not include the right to, and you must not: (a) modify any portion of the Apto Materials; (b) use the Apto Materials to develop or test any unauthorized replacement or alternative to the Apto Platform or other services; (c) sublicense, provide access to, or disclose to any third party any portion of the Apto Materials; (d) modify, reverse engineer, deconstruct, decrypt or disassemble the Apto Materials (in whole or in part); or (e) remove, alter, or cover any copyright or other proprietary rights notices in the Apto Materials or the Apto Platform.
- Apto may use any Feedback about the Apto Platform or the Apto Materials freely and without restriction.
- Except where specifically notified by Apto, Apto will not compensate or credit you for Feedback provided to Apto. If Apto makes any new features and functionality to you through the Apto Platform by invitation, you will agree to provide Feedback for such access.
- YOUR OBLIGATIONS.
- You must specify at least one Administrator to manage your Developer Account through the Apto Platform. You are responsible for securing your Developer Account credentials, and for any actions or failure to act on the part of an Administrator.
- You will use the Apto Materials and the Apto Platform made available to you solely: (a) to test the Apto Platform’s Card creation and configuration tools; and (b) in compliance with the terms and conditions set forth in these Terms and all applicable statutes, laws, regulations, Payment Network rules and reputable business practices.
- You will not state or suggest that Apto or its Affiliates are endorsing, sponsoring or affiliated with any of your products or services.
- Without the prior written consent of Apto, which Apto may provide in its sole discretion, you will not change, obscure or remove any copyright or other notice or legend on or within any Apto Materials.
- You agree that, as between the parties, Apto retains all Intellectual Property Rights and other rights in and to the Apto Materials; and all data, methodologies and concepts embodied in the Apto Materials; and Apto will own all rights in any corrections, fixes, enhancements, updates, improvements, inventions, designs, or other modifications to the Apto Materials; and all data, methodologies and concepts expressed in the Apto Materials and related documents and all derivatives of the foregoing.
- You agree to transfer ownership of any corrections, fixes, enhancements, updates, improvements, inventions, designs, or other modifications to the Apto Materials, all data, methodologies and concepts and related documentation embodied in the Apto Materials made by you or your personnel to Apto in accordance with Section 4.1.
- All other rights not expressly granted to you in these Terms are reserved to Apto. You will not use or exploit the Apto Materials; any of the data, information, methodologies or concepts embodied in the Apto Materials or any related materials in any manner not expressly authorized by these Terms, regardless of whether any of same are protected by patent, copyright or trade secret or other law. There are no implied rights or rights by estoppel and you will not directly or indirectly question or contest Apto’s rights to, or the validity or value of, the Apto Materials, data, methodologies and concepts embodied in the Apto Materials, and any intellectual property rights encompassing or protecting any of the foregoing.
- NO WARRANTY AND LIMITATION OF LIABILITY
- APTO DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO, AND REGARDING YOUR USE OF THE ACCOUNT, THE APTO MATERIALS AND THE APTO PLATFORM; INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, VALUE, ACCURACY, COMPLETENESS, RELIABILITY, SECURITY, SUITABILITY, COMPATIBILITY WITH ALL SYSTEMS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY OR PROMISE RELATED TO THE APTO MATERIALS AND THE APTO PLATFORM. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, YOUR ACCOUNT, THE APTO MATERIALS AND THE APTO PLATFORM ARE PROVIDED HEREUNDER ON AN "AS IS" BASIS AND YOU USE THEM ENTIRELY AT YOUR OWN RISK.
- IN NO EVENT WILL APTO OR ITS AFFILIATES BE LIABLE UNDER THESE TERMS TO YOU, YOUR CUSTOMERS, AFFILIATES OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES OR THE FOLLOWING LOSSES WHETHER DIRECT CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL: LOSS OF PROFITS, LOSS OF INVESTMENTS OR LOSS OF SALES OR LOSS CONNECTED TO BUSINESS INTERRUPTION OR LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF ANTICIPATED SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE THE APTO MATERIALS, THE APTO PLATFORM, OR ANY OF APTO’S INTELLECTUAL PROPERTY WHETHER OR NOT FORESEEABLE, EVEN IF APTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR DAMAGES. UNDER NO CIRCUMSTANCES WILL APTO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIM ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TERMS, ACCESS TO OR USE OF YOUR ACCOUNT, THE APTO MATERIALS, OR THE APTO PLATFORM.
You agree to indemnify, defend and hold Apto and its Affiliates, directors, officers, agents, employees, successor, assigns and software suppliers and licensors harmless from and against any and all liability, costs, damages, claims and actions arising as a result of: (i) your misuse of any Apto Materials or the Apto Platform; (ii) any breach by you of these Terms; or (iii) any act or omission by you or your third parties.
- TERM AND TERMINATION
- These Terms commence on the date that Apto accepts your Developer Account application and grants you access to the Apto Platform, and they will continue until terminated pursuant to the provisions of these Terms. The license described in Section 2 will only commence if Apto approves your Developer Account and makes the Apto Materials available to you, and such decision will be in Apto's sole discretion.
- Apto may, at any time, terminate these Terms and your Developer Account with no notice to you: (a) for legal or regulatory reasons or if Apto, acting reasonably, believes you did anything, or are likely to do anything, harmful to the reputation of Apto or its Affiliates; (b) if the Apto Materials or Apto Platform gives rise to any legal claim, lawsuit, action or other proceeding against Apto or any of its Affiliates or its or their respective officers, directors, employees, agents; (c) if you materially breach its provisions; or (d) without cause.
- You may terminate these Terms at any time without cause by closing your Developer Account through the Dashboard.
- On expiration or termination of these Terms: (a) without prejudice to Section 8.4, unless otherwise agreed in writing by Apto, you will promptly return to Apto or destroy all Apto Materials made available to you in connection with these Terms, regardless of form; (b) all licenses granted under these Terms will immediately terminate; and (c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive (including without limitation Sections 1, 2.3, and 3 to 10) or implicitly surviving termination, will not be affected or limited.
- Notwithstanding anything to the contrary in these Terms, in the event that these Terms are terminated by Apto for cause pursuant to Section 7.2, Apto will be entitled to take any action it considers reasonable in the circumstances.
- CONFIDENTIAL INFORMATION
- You will maintain in strict confidence (and in any event to a standard of confidentiality no lower than that which you apply to your own confidential information) the Confidential Information (as defined below) and will not, without the prior written consent of Apto or as expressly permitted under these Terms, disclose, produce, publish, permit access to, furnish or reveal any of the Confidential Information to any third party except as required by law or any regulatory authority (and except as disclosed to any regulatory authority in connection with any regulatory application or request for approval) and in those circumstances you will give Apto prompt written notice of such potential disclosure before it occurs so that Apto will have sufficient opportunity to prevent such disclosure through appropriate legal means or otherwise protect its Confidential Information.
- You will not use the Confidential Information for any purpose other than the purpose for which it is expressly made available under these Terms and you will not disclose such Confidential Information to any third party except to such of your personnel who need to know such Confidential Information for the purposes of performing your obligations, or exercising your rights, under these Terms, provided that: (i) you notify any such personnel of your duty of confidentiality under these Terms before disclosure; (ii) your employees are bound by corresponding confidentiality obligations that are no less stringent than those of these Terms during and after the term of their employment; and (iii) you remain responsible and liable for their compliance with the corresponding confidentiality obligations.
- You will, if requested by Apto, take any steps as Apto may reasonably request to enforce any duty of confidence owed to you by any personnel insofar as that enforcement appears to Apto to be necessary for the protection of the confidentiality of the Confidential Information.
- On expiration or termination for any reason of these Terms, if requested by Apto, you will return to Apto, or destroy any and all documents and materials in your possession or control which contain or reflect any Confidential Information, erase any Confidential Information which you have stored in electronic form, and certify to Apto, upon its request, that such Confidential Information has been returned, destroyed, or erased. Prior to disposing of any media or apparatus that contains or may contain Confidential Information, you will ensure, using industry best practices, that all Confidential Information contained in or on such media or in or on such apparatus has been completely deleted or otherwise destroyed and if requested by Apto, certify the destruction of the same.
- You acknowledge and agree that any breach of this Section 8 by you could be highly detrimental to the interests of Apto or its Affiliates and that adequate damages for such breach may be impossible to ascertain, and you agree that Apto will be entitled (without proof of special damage or posting of any bond) to specific performance, injunctive relief, or any other remedy or relief at law or in equity, in respect of any threatened or actual breach of this Section 8.
- For the purpose of these Terms, "Confidential Information" means the Apto Materials, the Apto Platform and any and all information, materials, algorithms, software and technology contained in or relating to the Apto Materials or derivative works based on the Apto Materials, in each case that is disclosed to, developed by or acquired or received by you or your personnel (whether orally, in writing or in any other form) except for any such information that: (a) has entered the public domain other than by breach of these Terms or of other confidentiality obligations; or (b) was in your possession without obligation to maintain its confidentiality prior to its disclosure to you by Apto or acquisition by you from Apto as proved by documentary evidence. All derivative works based on, and all implementations and uses of the Apto Materials or of derivative works based on the Apto Materials, constitute Confidential Information under these Terms.
These Terms do not entitle you to use any name, trademark or other branding associated with Apto, any of Apto’s Affiliates, Issuers, Payment Networks, or other financial services partners, any Payment Network or any other third party in relation to the Apto Materials, the Apto Platform or these Terms without the prior written consent of Apto.
- OTHER TERMS.
- Assignment. You may not, without the prior written approval of Apto, assign or otherwise transfer your interest in these Terms, any rights or obligations granted under these Terms whether voluntarily, by operation of law, by change of control or otherwise, provided that you may, with the written consent of Apto, which may be withheld in Apto’s sole discretion, make such an assignment or transfer of the whole of your rights and obligations under these Terms to an Affiliate.
- Third Parties; Independent Contractors. These Terms do not benefit or create any right or cause of action in or on behalf of any person or entity other than Company and Apto. Nothing contained in these Terms will be construed as creating or constituting a partnership, joint venture or agency between Apto and you. Each party will be deemed an independent contractor with respect to the other party in fulfillment of their respective obligations.
- Notices. All notices required by, or relating to these Terms, will be sent to you in writing by email at the email address you provided in your application, or through your Developer Account.
- Electronic Communications. You agree that submitting your application for a Developer Account and indicating consent to these Terms constitutes your electronic signature. You also agree that your electronic consent has and will have the same legal effect as a physical signature. You consent to us providing notices and Developer Account information to you electronically, and understand that this consent has the same legal effect as would a physical signature.
- Amendments and Waivers. Apto may amend these Terms at any time by notifying you of such amendments and posting the revised version of these Terms to https://www.aptopayments.com/legal and/or to the Apto developer portal. Your continued use of the Apto Materials and the Apto Platform following any such changes to the Terms will be deemed to constitute your acceptance of those changes. If you do not accept such changes, your only recourse is to terminate these Terms as described in Section 7. No waiver of any breach of any provision of these Terms will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
- Severability. If any provision of these Terms, or the application of any such provision to any person or circumstance, is invalid or unenforceable, the remainder of these Terms, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, will not be affected by such invalidity or unenforceability, and the parties expressly authorize any court of competent jurisdiction to modify any such provision in order that such provision will be enforced by such court to the fullest extent permitted by applicable law.
- No Jury Trials; Arbitration. The parties waive any right to a jury trial. Any dispute not resolved by the parties by mutual consultation will be determined by arbitration in San Francisco, California before a single arbitrator. The arbitration will be administered by JAMS. For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims less than or equal to $250,000, the JAMS Streamlined Arbitration Rules in effect at the time the arbitration is commenced will apply. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules. To the extent permitted by applicable law, all arbitration proceedings will be subject to Section 8.
- Entire Agreement. The parties agree that these Terms are the complete and exclusive statement of the agreement between the parties with respect to its subject matter, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties regarding the subject matter of these Terms.
- Governing Law and Venue. Any dispute, controversy or claim resulting from a party’s rights and obligations under these Terms, whether in contract, tort, equity or otherwise, will be governed by, construed, interpreted, and enforced in accordance with the laws of the state of California; and will be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California.
- Force Majeure. Neither party will be liable for delay or failure to perform, in whole or in part, any of its duties under these Terms due to factors beyond its control, including lack or failure of raw materials, strike, lockout or other labor disturbance, sabotage, terrorism, health emergency, acts of war or other armed conflict, acts of God, earthquake, storm, fire, electrical supply or telecommunications failure; except that this Section 10.10 will not limit the right of any party to these Terms to make any claim against third parties for any damages suffered due to any such event.
- Technical Support. Apto is not obligated to provide any technical or other support to you.