Professional Services Agreement
Last Updated on September 14, 2018.
This Appspace Professional Services Agreement (this “Agreement”) is between you (“you” or “Customer”), and Appspace GmbH, a company registered under the laws of Switzerland and having a registered office located at c/o Intertrust Services (Schweiz) AG, Zweigniederlassung Zürich, Limmatquai 72, 8001 Zürich, Switzerland (“Appspace” or “we”); provided, however, that Appspace, Inc., Appspace (Malaysia) Sdn Bhd, Appspace Solutions Limited, and Appspace Technologies FZ-LLC may also provide products or services under this Agreement. For End Users in the U.S. or Canada, this Agreement is between you and Appspace, Inc., a corporation formed under the laws of the state of Delaware, with offices located at 5005 LBJ Freeway, Suite 1100, Dallas, Texas 75244, USA. If you are agreeing to this 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 Agreement and represent and warrant that you have all necessary authority to do so.
This Agreement sets forth the terms under which Appspace will provide you with certain professional services described on order forms, including online order flows or statements of work (“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 Agreement governs Customer’s initial purchase of Services as well as any future purchases made by Customer that reference this Agreement. This Agreement also includes any Appspace policies or documents attached to or referenced in this Agreement, as well as any Order Forms entered into by the parties hereto.
This Agreement is separate from the agreement that Appspace has with its end users at https://www.appspace.com/legal/user-agreement (as may be modified by Appspace from time to time, the “Appspace End User Agreement”) regarding the use of Appspace’s products (the “Products”).
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement 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 an accepted Order Form, Appspace agrees to use diligent efforts to render the Services. If an accepted Order Form specifies a delivery date(s) for provision of the Services, Appspace will use diligent efforts to render the services by such specified date. Order Forms will be deemed issued and accepted by Appspace only if signed or otherwise acknowledged as accepted by Appspace. 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 your use of the applicable Products in accordance with the Appspace End User Agreement. The parties will agree upon the Deliverables and will set forth any and all specific or custom requirements and deliverables in the Order Form(s). The details of the method and manner for performance of the Services by Appspace shall be under its own control, with the Customer being interested only in the results thereof. Customer agrees to (a) respond promptly to any reasonable requests from Appspace for instructions, information or approvals required by Appspace to provide the Services, (b) cooperate with Appspace in its performance of the Services and (c) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Appspace’s provision of the Services.
2. Customer Materials. Customer agrees to provide Appspace with reasonable access to Customer materials, personnel, equipment, or facilities (including Customer’s instances of the Products) to the extent such access is reasonably requested by Appspace or 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 access is provided. Customer grants Appspace a limited right to use any Customer materials or information 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, except that Appspace owns and will retain ownership (including all intellectual property rights) 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 (as defined herein)), unless otherwise specifically set forth in an accepted 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 any ideas, concepts, know-how, or techniques contained therein (collectively “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 (as defined herein), and nothing in this Agreement, including Section 9 (Confidential Information), limits Appspace’s right to independently use, develop, evaluate, or market products or services, 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 Agreement, and, even if listed in an Order Form, no Appspace Technology (including any Product or any Product updates, upgrades, patches, and bug fixes) shall be considered a Deliverable under this 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 Agreement. Fees for the Services are separate from any fees paid for Products, and Customer’s payment obligations under this 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 accepted 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 applicable amounts at the times set forth on the applicable accepted Order Form. Although most of the 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 accordance with the terms 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 of this Agreement, 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. Customer also agrees to reimburse Appspace for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 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 applicable Order Form, whether owed directly to Appspace or an authorized Appspace reseller, then, notwithstanding any language to the contrary in this Agreement or any other agreement which you may have with Appspace, Appspace will have the right to terminate this Agreement, disable all Products, and/or cease providing the Services with no liability to you, including any liability for loss of content or for lack of backup.
6. Term and Termination. This Agreement takes effect on the Effective Date (as defined herein) and, unless earlier terminated in accordance with this Section 6, remains in effect until expiration or termination of all Subscription Terms or completion of all projects in accordance with the outstanding Order Forms. Customer agrees to pay Appspace for all Services that are provided prior to the expiration or earlier termination of this Agreement. The “Effective Date” of this 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 Agreement. Either party may terminate this Agreement or any Order Form if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after receipt of 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 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 Agreement. Unless termination occurs as a result of a breach by Customer, 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 (Services and Deliverables) and 9 (Confidential Information) of this Agreement, respectively.
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 THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY.
8.1. Waiver of Certain Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NONE OF APPSPACE, ITS AFFILIATES OR ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, 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, ITS AFFILIATES’ AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO APPSPACE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.
9. Confidential Information; Data Protection.
9.1. Confidentiality. 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 Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s obligations set forth in this Section 9 shall not apply to information which: (a) was rightfully in the possession of or known to the Receiving Party 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 the Receiving Party who had no access to such Confidential Information. Notwithstanding the forgoing, the Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law, or court order (if and as allowed by such regulation, law, or court order and only to the minimum extent required to comply with such regulation, law or court order and with advance notice to the Disclosing Party). Appspace may disclose Customer’s Confidential Information to Appspace’s affiliates, agents, employees and contractors who need to know such Confidential Information for purposes of providing the Services.
9.2. Data Protection.
9.2.1. Each party will comply with all applicable requirements of the Data Protection Legislation. This Section 9.2.1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. For purposes of this Section 9.2, “Data Protection Legislation” means the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any implementing laws, regulations and secondary legislation, as amended or updated from time to time.
9.2.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Appspace is the data processor (where “Data Controller” and “Data Processor” have the meanings set forth in the Data Protection Legislation).
9.2.3. Without prejudice to the generality of Section 9.2.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Appspace for the duration and purposes of this Agreement.
9.2.4. Without prejudice to the generality of Section 9.2.1, Appspace shall, in relation to any Personal Data processed in connection with the performance by Appspace of its obligations under this Agreement:
(A) process that Personal Data only on the written instructions of the Customer unless Appspace or any of its affiliates is required by the laws of any member of the European Union or by the laws of the European Union applicable to Appspace or its affiliates (collectively, “Applicable Laws”) to process Personal Data. Where Appspace or any of its affiliates is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Appspace shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Appspace or its affiliates from so notifying the Customer;
(B) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Customer, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
(C) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(D) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Appspace has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Appspace complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Appspace complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(E) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(F) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(G) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
(H) maintain complete and accurate records and information to demonstrate its compliance with this Section 9.2.
9.2.5. The Customer consents to Appspace appointing a third-party processor of Personal Data under this Agreement. If Appspace determines to use a third-party processor of Personal Data under this Agreement, Appspace will enter into a written agreement substantially on that third party’s standard terms of business. As between the Customer and Appspace, Appspace shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section 9.2.5.
9.2.6. Appspace may, at any time on not less than 30 days’ notice to the Customer, revise this Section 9.2 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
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 Agreement, the parties to this 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 sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the Arbitration Association of America (“AAA”). The parties shall seek to mutually appoint a neutral and impartial arbitrator. If the parties cannot agree on a single, neutral and impartial arbitrator, then there shall be three (3) neutral and impartial arbitrators: one selected by each party, and a third selected in accordance with the AAA rules. 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 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 Agreement shall prevent either party from seeking injunctive relief (without the requirement to post a bond or other security) 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 Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this 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 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 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.
12. Subcontractors. Appspace may use the services of subcontractors for performance of the Services under this Agreement, provided that Appspace remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement and (b) for the overall performance of the Services as required under this Agreement.
13. Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Appspace (which consent will not be unreasonably withheld), and any assignee of Customer shall agree to be bound by the terms and conditions contained in this Agreement. Appspace may assign its rights and obligations under this Agreement in whole or in part without consent of Customer. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
14. General. This Agreement and the applicable Order Forms constitute the entire agreement between you and Appspace relating to the Services and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this Agreement. If any provision of this 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 Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. As used in this Agreement, “including” (and its variants) means “including, without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, power or privilege of such party under this Agreement, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise of any right, power or privilege under this Agreement at law or equity. The parties are independent contractors. This 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 one 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 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.