2. Product Terms
2.1. Subscription Services License Rights. Subject to the terms and conditions of this Agreement, Appspace grants Customer a worldwide, non-exclusive, non-sublicensable and non-transferable license to access and use the Subscription Services for its internal business purposes during the License Term (as defined below) specified in the applicable Order and in accordance with this Agreement.
2.2. Number of Instances of Product. Unless otherwise specified in the Order, for each license of the Product that Customer purchases, Customer may install one production instance of the Product on systems owned or operated by Customer (or Customer’s third party service providers, provided that Customer remains responsible for compliance with the terms and conditions of this Agreement).
2.3. Use of Products.
Customer at its own cost and expense, unless otherwise set forth in an applicable Order, shall at all times be solely responsible for obtaining and maintaining all required operating system software, hardware, equipment, accessories, network connectivity and any other system elements necessary to meet the minimum system requirements for setup, maintenance, and use of the Products, as described in any Documentation, including without limitation the Appspace Knowledge Center
and Beezy Software Prerequisites
which may be updated by Appspace from time to time in its sole discretion, and as otherwise set forth in this Agreement. Customer acknowledges that Products may not operate in accordance with specifications if such minimum system requirements are not met. Appspace shall not be responsible for any adverse consequence or loss whatsoever due to Customer’s failure to adhere to such minimum system requirements.
2.4. New Releases. Customer acknowledges that Appspace may make updates and enhances to the Products from time to time. Such enhancements may include New Releases that Customer may use when provided by Appspace during a valid License Term in the same way that Customer uses Products. New Releases will be and are included in the definition of Products in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Products that Appspace makes generally commercially available. Customer should always use and upgrade to the most current version of the Products.
2.5. No-Charge Products. Appspace may offer certain Products to Customer at no charge, including free accounts, trial use, and access to pre-release, beta or limited release products (collectively, “No-Charge Products”). Customer’s use of No-Charge Products is subject to any additional terms that Appspace specify and is only permitted for the period designated by Appspace. Customer understands that No-Charge Products are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Customer may not use No-Charge Products for competitive analysis. Appspace may terminate Customer’s right to use No-Charge Products at any time and for any reason in Appspace’s sole discretion, without liability to Customer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPSPACE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OBLIGATIONS OR LIABILITIES WITH RESPECT TO ANY NO-CHARGE PRODUCT, INCLUDING ANY SUPPORT AND MAINTENANCE SERVICES, WARRANTY, AND INDEMNITY OBLIGATIONS, OR, THAT THE NO-CHARGE PRODUCTS WILL BECOME GENERALLY AVAILABLE.
2.6. Removals and Suspensions. Appspace may (a) remove Customer Data from the Products, or (b) suspend Customer’s access to the Products based on (i) Customer’s violation of this Agreement, (ii) in response to a valid Digital Millennium Copyright Act takedown request, (iii) Customer’s use of the Products represents an imminent threat to Appspace’s network, or (iv) the security or proper function of the Products may be compromised due to hacking, denial of service attacks or other activities of a similar nature. To the extent reasonably practicable given the nature of the issue giving rise to the suspension, Appspace will promptly: (1) notify Customer of such suspension in writing, and (2) reinstate the suspended Products after the issue is abated. Customer will continue to be charged for the Products during any suspension period. Appspace has no liability to Customer for removing or deleting Customer Data from or suspending Customer access to any Products as described in this Section 2.6 (Removals and Suspension).
3. Ownership and Responsibilities
3.1. Appspace Ownership. Except for the limited licenses granted herein, Appspace and its licensors have and retain all right, title and interest including all intellectual property rights, in and to the Products (including any API, Usage Data (defined below) and all No-Charge Products). No rights are granted to Customer other than as expressly set forth in this Agreement.
3.2. Licensed Users and Devices. Only the specific number of licensed users or devices for which Customer has paid the required fees and that Customer designates through the applicable Product (“Users” and/or “Devices”) may access and use the Product. Some Products may allow Customer to assign a different type of license to Users and Devices, in which case pricing and functionality may vary according to the type. Users and Devices may be Customer’s, or Customer’s Affiliates’, employees, representatives, consultants, contractors, agents, or other third parties who are acting for Customer’s, or Customer’s Affiliates’, benefit or on Customer’s, or Customer’s Affiliates’, behalf. Customer may increase the number of Users and Devices permitted to access Customer’s instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, Customer must pay the then-currently applicable fee for the increased number. Customer shall be responsible for compliance with this Agreement for all Users and Devices.
3.3. Authorized Users. All usernames and passwords to each User’s or Device’s account must be kept confidential and not shared with unauthorized persons. Customer is responsible for any and all actions taken using Customer’s accounts, usernames and passwords, and Customer agrees to immediately notify Appspace of any unauthorized use of which Customer becomes aware.
3.4. Customer Data. “Customer Data” means any data, content, code, video, images or other materials of any type that Customer uploads, submits or otherwise transmits to or through the Products. Customer will retain all right, title and interest in and to Customer Data in the form provided to Appspace. Subject to the terms of this Agreement, Customer grants to Appspace a non-exclusive, worldwide, irrevocable, royalty-free right (a) to collect, use, copy, store, transmit, modify and create derivative works of Customer Data, in each case solely to the extent necessary to provide the applicable Product to Customer, and (b) to share Customer Data or interact with other people, to distribute and publicly perform and display Customer Data as Customer directs or enables through the Products. Appspace may also access Customer’s account, Customer Data or Customer’s instance in order to respond to Customer support requests.
3.5. Customer Responsibilities. Customer must ensure that Customer’s use of the Products and all Customer Data is at all times compliant with Appspace’s AUP and all applicable local, state, federal and international laws, rules and regulations (“Law”), including as described, and where applicable, in Section 4.2 (Data Protection). This includes Customer acknowledging it will not submit to, store within, or transmit through the Products: (a) any personally identifiable information, except as necessary for the establishment and use of Customer’s Appspace account in accordance with this Agreement; (b) any personal health information as defined under the Health Insurance Portability and Accountability Act of 1996 or any similar federal or state Law; or (c) any other information subject to regulation or protection under specific Laws such as the Gramm-Leach-Bliley Act, Payment Card Industry’s Data Security Standards, or related rules or regulations (collectively “Sensitive Data”). Customer also acknowledges that Appspace is not acting as Customer’s Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Products are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Appspace shall have no liability under this Agreement for any Sensitive Data. Other than its security obligations under Section 4.1 (Security) and data protection obligations under Section 4.2 (Data Protection), as applicable, Appspace assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for the consequences of using, disclosing, storing or transmitting it.
3.6. Customer Restrictions. Except as otherwise expressly permitted in this Agreement, Customer will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service Customer provides to a third party, (d) interfere with any mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit Customer’s use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public application programming interfaces to any Products, except as permitted by Law, (f) attempt to probe, scan, penetrate or test the vulnerability of any Products or to circumvent or disable any Appspace security or authentication measures, (g) remove or obscure any proprietary or other notices contained in any Product, or (h) use the Products in violation of the AUP.
3.7. Feedback. From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Appspace, including sharing Customer’s Add-Ons (defined below) or in the course of using the Products or receiving Services (collectively “Feedback”). Appspace will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to freely use any Feedback, in any manner, without any obligation, payment, or restriction.
3.8. Usage Data. Appspace may collect, analyze and compile internal data based on Customer’s use of the Products, which shall be aggregated and anonymized (“Usage Data”). Usage Data is for purposes of improving and enhancing the Products, security, diagnostic and/or corrective analytics. Appspace owns all Usage Data and may use such data to the extent permitted under Law and provided such Usage Data does not identify Customer or include Customer’s Confidential Information.
3.9. Customer Add-Ons. From time to time, Appspace may, upon written request, allow Customer to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). Customer may distribute Customer’s Add-Ons to third parties, but only as permitted and agreed in writing by Appspace prior to such distribution.
3.10. Conditions to Development of Add-Ons. Notwithstanding anything in this Agreement to the contrary, Appspace has no support, warranty, indemnification or other obligation or liability to Customer or to any third party with respect to Customer’s Add-Ons or their combination, interaction or use with the Products. Customer shall indemnify, defend and hold Appspace harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Appspace by a third party relating to Customer’s Add-Ons (including any representations or warranties Customer makes about Customer’s Add-Ons) or Customer’s breach of this Section 3.10 (Customer Development of Add-Ons).
4. Appspace Security and Privacy Responsibility
4.1. Security. Appspace implements industry standard security procedures to help protect Customer Data from security attacks. Customer understands that use of the Products necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Appspace, and Appspace is not responsible for any of Customer Data lost, altered, intercepted or stored across such networks. Appspace cannot guarantee, represent or warrant that Appspace’s security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat Appspace’s security measures or those of Appspace’s third party service providers.
4.2. Data Protection. Except as otherwise set forth in Section 3.5 (Customer Responsibilities), Customer represents and warrants that no Sensitive Data, will be provided to Appspace under this Agreement on behalf of Customer. In the event of a change, Customer will notify Appspace in writing without undue delay, any anticipated change affecting the above confirmation. The Parties will then, prior to Appspace processing such Sensitive Data, agree to enter into a data processing agreement in accordance with Law, which shall amend this Agreement as is reasonably required to reflect their obligations and risks under Law and for Appspace to provide the Products in a manner that allows to Customer and Appspace to comply with their respective obligations under Law.
4.3. License Certifications and Audits. At Appspace’s reasonable request, Customer agrees to provide a signed certification that Customer is using all Products pursuant to the terms of this Agreement, including compliance with the number of Users and Devices. Customer agrees to allow Appspace, or Appspace’s authorized agent, to audit Customer’s use of the Products, no more than once every twelve (12) months. Appspace will provide Customer with at least ten (10) days’ advance notice prior to the audit, and the audit will be conducted during normal business hours. Appspace will bear all out-of-pocket costs that Appspace incurs for the audit, unless the audit reveals that Customer has exceeded the number of Users and Devices. Customer will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Customer’s own cost. If Customer exceeds the purchased number of Users and Devices, Appspace may invoice Customer for any past or ongoing excessive use, or additional users added, and Customer will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Appspace at Law or equity or under this Agreement. To the extent Appspace is obligated to do so, Appspace may share audit results with certain of Appspace’s third party licensors or assign the audit rights specified in this Section 4.3 (License Certifications and Audits) to such licensors.
5.1. Support and Maintenance Services.
Appspace will provide the support and maintenance services (“Support and Maintenance Services”
) for Products described in the Appspace Support Definitions located at https://www.appspace.com/legal/definitions
(the “Appspace Support Definitions”
). Support and Maintenance Services are subject to the terms of the Appspace Support Definitions and will be provided at the support level and during the support term specified in Customer the Order. The Appspace Support Definitions incorporates Appspace Service Level Agreement located at https://www.appspace.com/legal/sla
). Appspace shall provide Customer with the service level credits set forth in the SLA as Customer’s sole and exclusive remedy for Appspace’s failure to meet the service availability requirements set forth therein. The Appspace Support Definitions may be modified by Appspace from time to time to reflect process improvements or changing practices for Customer’s benefit. Appspace supports and provides fixes, patches or any other modifications to major versions of the Products for one year after the first major iteration of that version was released (as an example, Appspace supports version 5.2.2 for one year after version 5.2.3 was released). In the event of any conflict of terms between the Appspace Support Definitions and this Agreement, the terms within the Appspace Support Definitions shall control.
5.2. Professional Services.
Appspace will provide professional services and training services (“Professional Services”
) purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and any accompanying service descriptions or datasheets, if applicable. Appspace will retain all right, title, interest and ownership (including all intellectual property rights) in and to any materials, deliverables, modifications, derivative works or developments provided by Appspace to Customer as part of the Professional Services (“Deliverables”
). Any Deliverables provided to Customer may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, Customer will reimburse Appspace for reasonable travel and lodging expenses as incurred. All Professional Services are subject to the terms and conditions of the Appspace Professional Services Agreement
. In the event of any conflict of terms between the Professional Services Agreement and this Agreement, the terms within the Professional Services Agreement shall control.
6. Orders, Payment and Delivery
6.1. Orders from Appspace. An Order will specify Customer’s authorized subscription use for each Product and may include quantities of Users and Devices, provided, all such included quantities cannot be decreased on the applicable Order. Orders can also include any storage, overage or capacity limits and in the event Customer exceeds the stated limits, Appspace may charge the Customer in the form of excess overage fees.
6.2. Orders through a Reseller. This Agreement applies whether Customer purchases the Products directly from Appspace or through any Appspace authorized reseller or distributor (“Reseller”). If Customer purchases through a Reseller, Customer’s use of the Products shall be as stated in the Order placed by Reseller for Customer, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Appspace’s behalf, and Appspace is not bound by any obligations to Customer other than what Appspace specifies in this Agreement.
6.3. Delivery. Appspace will deliver applicable Products login instructions to the email address(es) specified in an Order when Appspace has received payment of all applicable fees. All deliveries will be electronic, and installation is the responsibility of the Customer. Appspace shall have no further delivery obligations after delivery of the license unless stated otherwise.
6.4. Payment. Customer agrees to pay all fees to Appspace in accordance with the terms of each Order. Other than as expressly set forth in Section 10.2 (IP Indemnification by Appspace), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, Customer acknowledges that Customer is not relying on future availability of any Products beyond the current License Term or any New Releases. If Customer adds Users and Devices during Customer’s License Term, Appspace will charge Customer for the increased number of Users and Devices pursuant to the then-currently applicable rates in Customer’s current billing cycle. If Customer pays by credit card, Customer agrees that Appspace may bill Customer’s credit card or invoice Customer for renewals, additional Users and Devices, and unpaid fees, as applicable. If Customer purchases any Products through an Order with a Reseller, Customer owes payment to the Reseller as agreed between Customer and the Reseller, but Customer acknowledges that Appspace may terminate Customer’s rights to use Products if Appspace does not receive Appspace’s corresponding payment from the Reseller, with at least five (5) business day’s prior notice to Customer. In the event the Reseller fails to pay Appspace, Customer agrees to use best efforts to have Appspace paid either by Reseller or Customer.
Upon termination, any unpaid payments for performed Services will be accelerated and become immediately due and payable. In addition to any other remedies that Appspace may have at Law or equity, any late payments will 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 will reimburse Appspace for all reasonable costs incurred in collecting any late payments or interest, including attorney’s fees and collection agency fees. In addition to any other rights or remedies that Appspace may have at Law or in equity, Customer acknowledges that if payment is not made within thirty (30) days of the date of the Order, whether owed directly to Appspace or directly to a Reseller, then, notwithstanding any language to the contrary in this Agreement (including Section 15.8 (Dispute Resolution), or any other agreement which Customer may have with Appspace, Appspace will have the right to terminate or disable all Products with no liability to Customer, including any liability for loss of content or for lack of backup.
6.5. Taxes. This Section 6.5 (Taxes) will not apply if Customer placed Customer’s Order through a Reseller. Customer will be responsible for all related bank charges, taxes, withholdings, duties and levies in connection with the Products charges (excluding taxes based on the net income of Appspace). Customer’s payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Appspace, Customer must pay to Appspace the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, Customer may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, Customer will have the right to provide to Appspace any such exemption information, and Appspace will use reasonable efforts to provide such invoicing documents as may enable Customer to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
7. Term and Termination
7.1. Agreement Term. This Agreement is in effect for as long as Customer has a valid Order (the “Term”), unless sooner terminated as permitted in this Agreement.
7.2. License Terms and Renewals. Products are provided for a set term specified in an applicable Order. The term of each Product license (the “License Term”) will end upon any termination of this Agreement or the applicable Order, regardless of being identified as “perpetual” or if no expiration date is specified. Except as otherwise specified, License Terms will automatically renew for periods equal to the initial term period stated on such Order, unless either Party provides the other with thirty (30) days’ written notice prior to the end of the relevant License Term. Unless expressly provided for, Product renewals will be at Appspace’s then current-list price. If Customer upgrades Products prior to the License Term renewal date, then Customer’s payment due for the upgraded Products will be prorated and credited based on Customer’s remaining License Term and the date on Customer’s upgraded invoice will become Customer’s new renewal date.
7.3. Termination for Breach. Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach.
7.4. Termination for Insolvency. Either Party may terminate this Agreement if the other Party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
7.5. Refund or Payment upon Termination. If this Agreement is terminated by Appspace in accordance with Section 7.3 (Termination for Breach) above, Customer will pay any unpaid fees covering the remainder of the term of all Orders to the extent permitted by Law.
7.6. Effects of Termination. Upon any termination of an applicable Order, Customer will no longer have any right to use or access any Products, or any information or materials that Appspace makes available to Customer under such Order. Upon any termination of this Agreement, Appspace may delete any Customer Data while having no obligation to continue storing such data. The following provisions will survive any termination or expiration of this Agreement: 2.5 (No-Charge Products) (disclaimers and use restrictions only), 3.1 (Appspace Ownership), 3.6 (Customer Restrictions), 3.7 (Feedback), 3.10 (Conditions to Development of Add-Ons), 4.3 (License Certifications and Audits), 6.4 (Payment), 6.5 (Taxes), 7 (Term and Termination), 8.4 (Warranties; Disclaimer), 9 (Confidentiality), 10.1 (Customer Indemnification), 11 (Limitation of Liability), 2.1 (Third Party Materials), 13 (Export Restrictions), and 15 (General).
8.1. Mutual Warranty. Each Party represents and warrants it has the legal power and authority to enter in this Agreement.
8.2. Appspace Warranty. Appspace warrants that during the valid License Term the Products will function materially in accordance with the related Documentation and, if applicable, ensure the availability in accordance with the SLA.
8.3. Customer Warranty. Customer represents and warrants that: (a) Customer has the necessary and appropriate rights, releases and permissions to provide Customer Data to Appspace and permits Appspace to use and process Customer Data in accordance with this Agreement, and (b) Customer Data does not and will not infringe or misappropriate any third party right, including any intellectual property rights, privacy rights or violate any Laws.
8.4. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 8.2 (APPSPACE WARRANTY), All PRODUCTS ARE PROVIDED “AS-IS,” AND “AS AVAILABLE,” AND APPSPACE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. APPSPACE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF APPSPACE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPSPACE DOES NOT REPRESENT THAT: (A) THE PRODUCTS WILL BE ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (D) THE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS UPON DELIVERY TO CUSTOMER; (E) ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; OR THAT (F) ALL ERRORS IN THE PRODUCTS WILL BE CORRECTED.
9. Confidentiality. Except as otherwise set forth in this Agreement, each Party agrees that all confidential or proprietary business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing Party (“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 which should be reasonably understood by Receiving Party as the confidential or proprietary information of Disclosing Party or its Affiliates. Any Products and any performance information relating to the Products 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 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. The Receiving Party may also disclose Confidential Information if so required pursuant to a Law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice, if and as permitted by Law, to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy; and therefore, that upon any such disclosure or threatened disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief (without posting a bond or other security) in addition to whatever other remedies the Disclosing Party might have at Law. For the avoidance of doubt, this Section 9 (Confidentiality) shall not operate as a separate warranty with respect to the operation of any Product. The obligations set forth in this Section 9 (Confidentiality) will terminate three (3) years after the expiration or earlier termination of the Term (as defined below).
10.1. Customer Indemnification. Customer will defend, indemnify and hold harmless Appspace from and against any loss, cost, liability or damage, including reasonable attorneys’ fees, for which Appspace becomes liable arising from or relating to: (i) any claim brought by a third party alleging that Customer Data, or Customer’s use of the Subscription Services in violation of this Agreement infringes or misappropriates the intellectual property rights of a third party or violates Law; or (ii) any claim brought that use of the Products by Customer or Customer’s Affiliates in breach of this Agreement.
10.2. IP Indemnification by Appspace. Appspace will defend Customer against any claim brought against Customer by a third party alleging that a Product, when used as authorized under this Agreement, infringes a valid patent or registered copyright of such third party (a “Claim”), and Appspace will indemnify Customer and hold Customer harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed-to settlement by Appspace (including reasonable attorneys’ fees) arising out of a Claim. If Customer’s use of a Product is (or in Appspace’s opinion is likely to be) enjoined, if required by settlement, or if Appspace determines such actions are reasonably necessary to avoid material liability, Appspace may, at Appspace’s option and in Appspace’s reasonable discretion: (i) procure a license for Customer’s continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate Customer’s right to continue using the Product and issue a pro rata refund for any prepaid amounts for the Subscription Services not provided. Appspace’s indemnification obligations above under Section 10.2 (IP Indemnification by Appspace) do not apply: (1) if the Customer has not been charged by or paid any fees to Appspace in the 12 month period immediately preceding the Claim; (2) if the Product is modified or combined to a non-Appspace product by any party other than Appspace and without Appspace’s written approval, but solely to the extent the alleged infringement is caused by such modification; (3) to unauthorized use of Products; (4) to any Claim arising as a result of (y) Customer Data (or circumstances covered by Customer’s indemnification obligations in Section 10.1 (Customer Indemnification)) or (z) any Third-Party Materials contained with the Products; (5) to any unsupported release of the Product; or (6) if Customer settles or make any admissions with respect to a Claim without Appspace’s prior written consent. THIS SECTION 10.2 (IP INDEMNIFICATION BY APPSPACE) STATES APPSPACE’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY APPSPACE UNDER THIS AGREEMENT.
10.3. Indemnification Procedures. The indemnification obligations in this Section 10 (Indemnification) are subject to the indemnified Party receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for the indemnifying Party to respond without prejudice); (b) giving the indemnifying Party the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided any such settlement unconditionally releases the indemnified Party of all liability; and (c) all reasonable necessary cooperation by the indemnifying Party, at the indemnifying Party’s expense.
11. Limitation of Liability.
11.1. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY 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.
11.2. Damages Cap. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS OR SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, APPSPACE’S AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE TWENTY U.S. DOLLARS ($20 USD). THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (A) AMOUNTS OWED BY CUSTOMER UNDER ANY ORDERS, OR (B) CUSTOMER’S BREACH OF SECTIONS 3.5 (CUSTOMER RESPONSIBILITIES) AND 3.6 (CUSTOMER RESTRICTIONS).
11.3. Failure of Essential Purpose. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 11 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
12. Third Party Materials and Code.
12.1. Third Party Materials. Appspace or third parties may from time-to-time display, include, or make available to Customer third-party products or services, including RSS feeds, weather widgets, add-ons and plugins as well as implementation, customization, training, and other consulting services for use with the Products (collectively, “Third Party Materials”). If Customer procures any of these Third Party Materials, Customer will do so under a separate agreement (and exchange of data) solely between Customer and the applicable third-party vendor. Representations made regarding Third Party Materials will be governed by the policies and representations made by these third-parties. Appspace does not warrant non-Appspace products or services, whether or not they are designated by Appspace as “verified” or otherwise, and Appspace disclaims all liability for such Third Party Materials. If Customer installs or enables any Third Party Materials or services for use with Products, Customer acknowledges that Appspace may allow the vendors of those products and services to access Customer Data as required for the interoperation and support of such add-ons with the Products. Appspace shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third party add-on vendors.
12.2. Third Party Code.
The Products include code and libraries licensed to Appspace by third parties, including open source software. See Appspace’s Third Party Code
for additional information regarding Appspace’s use of third party code.
13. Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and Customer agrees to comply with all applicable export and import Laws and regulations in Customer’s use of the Products. Customer shall not (and shall not allow any third-party to) use, remove or export from the United States or allow the export or re-export of any part of the Products in a U.S.-embargoed country or region or in violation of any U.S. export Laws. Customer represents and warrant that (i) Customer is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Customer Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
14. Commercial Item Software. The Products are commercial computer software. If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited
15.2. Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform its obligation under this Agreement (except for a failure to pay fees) if the cause of delay or failure is due to unforeseen events which are beyond the reasonable control of such Party, including, without limitation, a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. The affected Party shall promptly notify the other Party and make reasonable efforts to mitigate the effects of such event.
15.3. Independent Contractors. The Parties are independent contractors and 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.
15.4. Assignment. Customer may not assign this Agreement without Appspace’s prior written consent. Appspace may assign any of Appspace’s rights and obligations under this Agreement (in whole or in part) without Customer’s consent.
15.5. Waiver. No failure or delay by the injured Party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at Law or equity.
15.6. Invalidity and Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, other provisions shall continue in full force and effect.
15.7. Amendment. This Agreement may not be modified or amended by Customer without Appspace’s written agreement (which may be withheld in Appspace’s complete discretion without any requirement to provide any explanation). Appspace may update or amend this Agreement from time to time. In which case, the new Agreement will supersede any prior versions. Customer’s continued use of the Products following the effective date of any such amendment may be relied upon by Appspace as Customer’s consent to any such amendment.
15.8. Dispute Resolution. In a claim arising out of, or controversy surrounding this Agreement, the Parties will consult and in good faith negotiate with each other to reach a satisfactory solution to both Parties. Consultations and negotiations will be confidential and treated as a compromise. If the Parties are unable to reach a settlement within ninety (90) days, either Party may pursue relief as available under Section 15.9 (Governing Law; Venue).
15.9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in New Castle County, Delaware, USA.
15.10. Injunctive Relief. Nothing in this Agreement shall prevent either Party from seeking injunctive relief with respect to violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
15.11. 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.
15.12. Headings. Heading to sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
15.13. Entire Agreement. This Agreement, including any Orders between Appspace and Customer, constitutes the entire agreement between Customer and Appspace relating to the Products and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order or other terms and conditions issued by Customer shall be of no force or effect, even if the terms are accepted by the Parties. Each party agrees that use of pre-printed forms, including but not limited to email, purchase orders, acknowledgements or invoices, is for convenience only and all pre-printed terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect.