Last Updated on May 20, 2016.
This Appspace Professional Services Agreement (this “PS Agreement”) is between you (“you” or “Customer”), and Appspace GmbH; provided, however, that Appspace Inc., Appspace Sdn Bhd, Appspace Solutions Limited and Appspace FZ-LLC may also provide products or services under this Agreement (“Appspace” or “we”). If you are agreeing to this PS Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this PS Agreement and represent and warrant that you have all necessary authority to do so.
This PS Agreement sets forth the terms under which Appspace will provide you with certain professional services described on order forms, including online order flows or statement of works (“Order Forms” and such services, “Services”). Services may be provided on a subscription basis for a set term (the “Subscription Term”) or may be provided on a one-time or customized basis as designated in the Order Forms. This PS Agreement governs Customer’s initial purchase of Services as well as any future purchases made by Customer that reference this PS Agreement. The PS Agreement also includes any Appspace policies or documents attached to or referenced in this document, as well as any Order Forms entered into by the Parties.
This PS Agreement is separate from the agreement that Appspace has with its end users at End User Agreement (as may be modified by Appspace from time to time, “Appspace End User Agreement”) regarding the use of Appspace Products (the “Products”).
This PS Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your order or by signing an Order Form.
1. Services and Deliverables.
During the applicable Subscription Term or as set forth on the Order Form, Appspace agrees to use diligent efforts to render the Services by the delivery date(s) specified on the applicable Order Form, if any. Subject to Section 4 (Appspace Products) below, any reports, recommendations or other deliverables provided by Appspace to you as part of the Services are “Deliverables”. Appspace grants you a perpetual, worldwide, royalty-free, non-exclusive license to use the Deliverables internally in connection with the applicable Products. The parties will agree upon the Deliverables and will set forth any and all specific or custom requirements and deliverables in the Order Form.
2. Customer Materials.
Customer agrees to provide Appspace with reasonable access to Customer materials, personnel, equipment or facilities (including without limitation Customer’s instances of the Products) to the extent such access is necessary for the performance of Services. To the extent that Customer does not timely provide the foregoing access required for Appspace to perform the Services or deliver the Deliverables, Appspace shall be excused from performance until such items are provided. Customer grants Appspace a limited right to use any Customer materials provided to Appspace (the “Customer Materials”) in connection with the Services, solely for the purpose of performing the Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer Materials (subject to Appspace’s ownership of any underlying Products, service descriptions, documentation, and underlying technology (“Appspace Technology”)).
3. Ownership of Deliverables; Feedback.
Appspace owns and will retain ownership (including all intellectual property rights) in and to the Deliverables and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any Feedback), unless as otherwise specifically set forth in the Order Form. If Customer provides any feedback, comments, suggestions, ideas, description of processes, or other information to Appspace about or in connection with the Products, Deliverables or Services, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then Customer grants Appspace a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to Customer or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed Customer’s Confidential Information, and nothing in this PS Agreement, including without limitation Section 9 (Confidential Information), limits Appspace’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
4. Appspace Products.
For the avoidance of doubt, the rights to and delivery and use of any Appspace Technology (including any Product) is governed by the terms of the Appspace End User Agreement and not the terms of this PS Agreement, and, even if listed in an Order Form, no Appspace Technology (including any Product updates, upgrades, patches and bug fixes) shall be considered a Deliverable under this PS Agreement. Customer acknowledges that the Services are being purchased separately from any Product licenses or subscriptions and that no such license or subscription is being provided or offered under this PS Agreement. Fees for the Services are separate from any fees paid for Products, and Customer’s payment obligations under this PS Agreement are not contingent on the purchase or use of any Product.
5. Subscription Term; Payment.
5.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term for Services will automatically renew for additional successive Subscription Terms of the same length at Appspace’s then-current rates, unless either party gives the other written notice of non-renewal at least thirty (30) days prior to expiration of the then-current Subscription Term.
5.2. Payment. Customer will pay Appspace the amounts and at the times set forth on the applicable Order Form. Although most of Appspace’s Professional Services may be performed remotely or virtually, Customer agrees to reimburse Appspace for pre-approved travel, lodging and meal expenses incurred in the course of performing the Services at any location other than Appspace’s site, unless otherwise specified on the Order Form (including any data sheet incorporated by reference into the Order Form). Appspace will invoice Customer for expenses incurred and at Customer’s request and expense, Appspace will provide copies of receipts for which charges are incurred. All payments are non-refundable and all payment obligations non-cancellable unless otherwise specified on an Order Form. Payments shall be made in U.S. dollars (unless otherwise agreed in writing by the parties) within thirty (30) days from the date of Appspace’s invoice. Customer will be responsible for all related bank charges, taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Appspace). Upon termination, all payments for Services or support and maintenance services already provided shall be accelerated and become immediately due and payable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. In addition to any other rights or remedies that Appspace may have at law or in equity, you acknowledge that if payment is not made within one hundred twenty (“120”) days of the date of the Order, whether owed directly to Appspace or to a Reseller, then notwithstanding any language to the contrary in this Agreement or any other agreement which you may have with Appspace, then Appspace will have the right to terminate or disable all Products and Professional Services with no liability to you, including but not limited to, no liability for loss of Content or for lack of backup.
For payments made directly to Appspace, you may pay by (i) check delivered to Appspace GmbH, c/o Appspace, Inc., Occidental Tower, Suite 1100, 5005 LBJ Freeway, Dallas, TX 75244; (ii) credit card credit card by contacting email@example.com, or (iii) wire transfer to Appspace’s account number, which will be provided upon contacting firstname.lastname@example.org.
6. Term and Termination.
This PS Agreement takes effect on the Effective Date and, unless earlier terminated in accordance with this Section 6, remains in effect until expiration or termination of all Subscription Terms or completion of the project in accordance with the Order Form. Customer agrees to pay Appspace for any Services that have previously been provided. The “Effective Date” of this PS Agreement is the date that is the earlier of (a) Customer’s initial receipt of Services or (b) the effective date of the first Order Form referencing this PS Agreement. Either party may terminate this PS Agreement or any Order Form if the other party: (i) fails to cure any material breach of this PS Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Sections 3 (Ownership of Deliverables; Feedback), 4 (Appspace Products), 5.2 (Payment) (but only with respect to orders placed during the term of this PS Agreement), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Confidential Information), 10 (Dispute Resolution; Governing Law), 13 (Assignment) and 14 (General) will survive any termination or expiration of this PS Agreement. Unless termination is for Customer’s breach, Customer’s right under Section 1 (Services and Deliverables) to use Deliverables shall survive so long as Customer has a valid right under the Appspace End User Agreement to use the applicable Product and provided that Customer remains in compliance with the applicable use restrictions and confidentiality obligations in Sections 1 and 9 in this PS Agreement.
7. Warranty Disclaimer.
ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND APPSPACE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY.
8.1. Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER APPSPACE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, APPSPACE’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS PS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO APPSPACE UNDER THIS PS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.
9. Confidential Information.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, and business, technical and financial information it obtains from the disclosing party (as “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Deliverables and any software, documentation or technical information provided by Appspace (or its agents) shall be deemed Confidential Information of Appspace without any marking or further designation. Except as expressly authorized in this PS Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (if and as allowed by law, and only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
10. Dispute Resolution; Governing Law.
10.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this PS Agreement, the parties to this PS Agreement shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this PS Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two party-selected arbitrators. Arbitration will take place in one of the following cities as mutually agreed between the parties: Sydney (Australia), Zürich (Switzerland) or Dallas, Texas (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in Dallas, Texas (USA). All negotiations and arbitration proceedings pursuant to this Section 10.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English and the parties will bear their own costs for the arbitration.
10.2. Governing Law; Jurisdiction. This PS Agreement will be governed by and construed in accordance with the applicable laws of the State of Texas, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 10.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Dallas County, Dallas, Texas, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in the state and Federal courts in Dallas County, Dallas, Texas, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Appspace may bring a claim for equitable relief in any court with proper jurisdiction.
10.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 10, nothing in this PS Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
10.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this PS Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this PS Agreement regardless of when or where adopted.
11. Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this PS Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
Appspace may use the services of subcontractors for performance of Services under this PS Agreement, provided that Appspace remains responsible for (a) compliance of any such subcontractor with the terms of this PS Agreement and (b) for the overall performance of the Services as required under this PS Agreement.
Customer may not assign this PS Agreement without the prior written consent of Appspace (which consent will not be unreasonably withheld), provided that the assignee agrees to be bound by the terms and conditions contained in this PS Agreement. Appspace may assign its rights and obligations under this PS Agreement in whole or in part without consent of Customer. Any permitted assignee shall be bound by the terms and conditions of this PS Agreement.
This PS Agreement is the entire agreement between you and Appspace relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this PS Agreement. If any provision of this PS Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. No supplement, modification, or amendment of this PS Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this PS Agreement. As used in this PS Agreement, “including” (and its variants) means “including without limitation” (and its variants). If either party to this PS Agreement breaches any provision of this PS Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this PS Agreement. No failure or delay by the injured party to this PS Agreement in exercising any right, power or privilege under this PS Agreement shall operate as a waiver of this PS Agreement, nor shall any single or partial exercise of this PS Agreement preclude any other or further exercise of, or the exercise of any right, power or privilege under this PS Agreement at law or equity. The parties are independent contractors. This PS Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. Any notice, report, approval or consent required or permitted under this PS Agreement will be in writing to the address specified on the Order Form or such other address as may be given in writing by either party to the other.