End User Agreement
Last Updated on September 14, 2018.
This Appspace End User Agreement (this “Agreement”) is entered into by and between you (“you” or “End User”) 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”); 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. Each of these entities, along with Appspace GmbH, is a wholly owned subsidiary, or affiliate, of Appspace Holdings, Inc., a Delaware corporation. If you are agreeing to this Agreement not as an individual, but on behalf of your company, then “you” or “End User” means your company and by entering into this Agreement, you are agreeing to bind, and representing that you have full authority to bind, your company to this Agreement. You and Appspace may be referred to individually as a “Party” and collectively as the “Parties.” Appspace may modify this Agreement from time to time, subject to the terms in Section 26 (Changes to this Agreement).
By clicking on the “I agree” (or similar button) that is presented to you at the time you receive your license key or access to Appspace products, or by using or accessing Appspace products or services, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not use any Appspace products or services.
2. Types of Appspace Products. This Agreement governs (a) Appspace’s commercially available downloadable software products (“Software”), (b) Appspace’s hosted or cloud-based solutions (“Subscription Services”), and (c) any related support or maintenance services provided by Appspace, including Support and Maintenance Services (as defined in Section 8 below) or Professional Services (as defined in Section 9 below). Software and Subscription Services, together with all related Appspace standard documentation (“Documentation”), are referred to herein as “Products”. The Products and their permitted use are further described in the Documentation. Section 6 (Software Terms) applies specifically to Software, and Section 7 (Subscription Services Terms) applies specifically to Subscription Services, but unless otherwise specified, other provisions of this Agreement apply to all Products.
3. Account Registration. You may need to register for an Appspace account in order to access or receive any Products. You can register for an Appspace account through our web site located at https://www.appspace.com/. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
4.1 Ordering Directly from Appspace. Appspace’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for each Product, which may include: (a) number and type of Appspace IDs (as defined below), (b) storage or capacity limits (for Subscription Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (collectively, as applicable, the “Scope of Use”). The term “Order” includes (x) an invoice or a statement of work for any Support and Maintenance Services (as defined in Section 8 below) or Professional Services (as defined in Section 9 below), as applicable, (y) any applicable Product renewal, Professional Services renewal, or Support and Maintenance Services renewal, or (z) purchases you make to increase or upgrade your Scope of Use.
4.2 Ordering through Reseller. This Agreement applies whether you purchase our Products directly from Appspace or through any Appspace authorized reseller or distributor (“Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, 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 we are not bound by any obligations to you other than what we specify in this Agreement.
5. Appspace IDs. Only the specific number of individuals or registered devices for whom (or which) you have paid the required fees and that you designate through the applicable Product (“Appspace IDs”) may access and use the Products. Some Products may allow you to designate different types of Appspace IDs, in which case pricing and functionality may vary according to the type of Appspace ID. Appspace ID users may be your, or your Affiliates’ (as defined below), employees, representatives, consultants, contractors, agents, or other third parties who are acting for your, or your Affiliates’, benefit or on your, or your Affiliates’, behalf. You may increase the number of Appspace IDs permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Appspace IDs. You are responsible for compliance with this Agreement by all Appspace ID users. All use of Products by you and your Appspace ID users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means, with respect to any entity, any other person or entity, which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with the specified entity, where “control”, with respect to any specified entity, means the power to direct the management or affairs of that entity, directly or indirectly, whether through the ownership of voting securities or other beneficial interest, by contract or otherwise.
6. Software Terms.
6.1 Your License Rights. Subject to the terms and conditions of this Agreement, Appspace grants you a worldwide, non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term (as defined below) in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The term of each Software license (“License Term”) will be specified in the applicable Order for such Software. Each License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in the applicable Order. The Software requires a license key in order to operate, which will be delivered as described in Section 10.2 (Delivery).
6.2 Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers, provided that you remain responsible for their compliance with the terms and conditions of this Agreement).
6.3 Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software. See Third Party Code for additional information regarding our use of third party code.
7. Subscription Services Terms.
7.1 Access to Subscription Services. Subject to the terms and conditions of this Agreement, Appspace grants you a worldwide, non-exclusive, non-sublicenseable and non-transferable right to access and use the Subscription Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If Appspace offers client software (e.g., a desktop or mobile application) for any Subscription Service, you may use such software solely with the Subscription Service, subject to the terms and conditions of this Agreement. You acknowledge that our Subscription Services are on-line, subscription-based products and that we may make changes to the Subscription Services from time to time.
7.2 Subscription Terms and Renewals. Subscription Services are provided on a subscription basis for a set term specified in the applicable Order for such Subscription Service (“Subscription Term”). Except as otherwise specified in the applicable Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates), unless you cancel your subscription by providing Appspace with the required notice of termination in accordance with this Agreement. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination. If you upgrade your Subscription Services prior to the renewal date of your Subscription Term, then your payment due for the upgraded Subscription Services will be prorated and credited based on your remaining Subscription Term and the date on your upgraded invoice will become your new renewal date for payment and termination purposes.
7.3 Credentials. You must ensure that all Appspace ID users keep their user IDs and passwords for the Subscription Services strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons or registered devices and may not be shared. You are responsible for any and all actions taken using your Appspace ID, accounts, user IDs and passwords, and you agree to immediately notify Appspace of any unauthorized use of which you become aware.
7.4 Your Data. “Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through the Subscription Services. You will retain all right, title and interest in and to Your Data in the form provided to Appspace. Subject to the terms of this Agreement, you grant to Appspace a non-exclusive, worldwide, royalty-free right (a) to collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Subscription Service to you and (b) to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Appspace IDs) direct or enable through the Subscription Services. Appspace may also access your account, Your Data or your instance in order to respond to your support requests.
7.5 Security; Data Protection.
7.5.1 Security. Appspace implements security procedures to help protect Your Data from security attacks. You, however, understand that use of the Subscription Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by Appspace, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee, represent or warrant that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
7.5.2 Data Protection.
188.8.131.52 Each Party will comply with all applicable requirements of the Data Protection Legislation. This Section 184.108.40.206 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 7.5.2, “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.
220.127.116.11 The Parties acknowledge that for the purposes of the Data Protection Legislation, End User 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).
18.104.22.168 Without prejudice to the generality of Section 22.214.171.124, End User 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.
126.96.36.199 Without prejudice to the generality of Section 188.8.131.52, 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 End User 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 End User of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Appspace or its Affiliates from so notifying End User;
(B) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by End User, 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 End User has been obtained and the following conditions are fulfilled:
(i) End User 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 End User with respect to the processing of the Personal Data;
(E) assist End User, at End User’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 End User without undue delay on becoming aware of a Personal Data breach;
(G) at the written direction of End User, delete or return Personal Data and copies thereof to End User 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 7.5.2.
184.108.40.206 End User 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 End User and Appspace, Appspace shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section 220.127.116.11.
18.104.22.168 Appspace may, at any time on not less than 30 days’ notice to End User, revise this Section 7.5.2 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).
7.6 Overage Limits. There may be overage limits, including storage or bandwidth limits, associated with the Products. These limits are described in the services descriptions on our website or in the Documentation for the Products. We may impose new, or may modify existing, storage or bandwidth limits for the Products at any time in our reasonable discretion, with or without notice to you.
7.7 Responsibility for Your Data.
7.7.1 General. You must ensure that your use of Subscription Services and all Your Data is at all times compliant with our AUP and all applicable local, state, federal and international laws and regulations (“Laws”), including as described in Section 7.5.2. You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all of Your Data to Appspace and to grant the rights granted to Appspace in this Agreement and (b) Your Data and its transfer to and use by Appspace as authorized by you under this Agreement does not violate any Laws (including those relating to export control and electronic communications and the Data Protection Legislation, as applicable) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized in this Agreement is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5.1 (Security) and data protection obligations under Section 7.5.2 (Data Protection), as applicable, Appspace assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
7.7.2 Sensitive Data. You will not submit to the Subscription Services (or use the Subscription Services to collect): (a) any personally identifiable information, except as necessary for the establishment of your Appspace account; (b) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state Laws, rules or regulations; or (c) any other information subject to regulation or protection under specific Laws such as the Gramm-Leach-Bliley Act or related rules or regulations (collectively, “Sensitive Data”). You also acknowledge that Appspace is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Subscription Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Appspace has no liability under this Agreement for Sensitive Data.
7.7.3 Indemnity for Your Data. You 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 any claim relating to Your Data, including any claim brought by a third party alleging that Your Data, or your use of the Subscription Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of Appspace at your expense.
7.8 Removals and Suspension. Appspace has no obligation to monitor any content uploaded to the Subscription Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement, our AUP, Applicable Laws or in response to a valid Digital Millennium Copyright Act takedown request then, we may (a) remove Your Data from the Subscription Services or (b) suspend your access to the Subscription Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Subscription Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Subscription Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Subscription Services as described in this Section 7.8 (Removals and Suspension).
7.9 Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
8. Support and Maintenance Services. Appspace will provide the support and maintenance services (“Support and Maintenance Services”) for the Products described in the Appspace Support Definitions located at https://www.appspace.com/legal/definitions (the “Appspace Support Definitions”) during the period for which you have paid the applicable fee. 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 your Order(s). The Appspace Support Definitions may be modified by Appspace from time to time to reflect process improvements or changing practices for your benefit. Support and Maintenance Services for Software includes access to New Releases (as defined below), if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available. You should always use and upgrade to the most current version of our Software. Appspace supports and provides bug fixes, patches or any other changes, enhancements or modifications to major versions of Software for one year after the first major iteration of that version was released (as an example, we support version 5.2.2 for one year after version 5.2.3 was released). Because Appspace does not support versions for more than one year after the last major version is released, you may be required to upgrade to a later or more current version of our Software in order for any issues to be addressed and resolved.
9. Professional Services. We 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 and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you 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.
10. Returns and Financial Terms.
10.1 Return Policy. As part of our commitment to end user satisfaction, it is our customary business practice to allow End Users to return a Product within 30 days of delivery (as set forth in Section 10.2 (Delivery) below) for any reason or no reason and to receive a refund of the amount paid for the returned Product. In the context of Software, a return means that we will disable the license key that allowed the Software to operate. In the context of Subscription Services, a return means that we will disable access to the Subscription Services. We will not accept returns after the 30-day return period. You understand that Appspace may change this practice in the future in accordance with Section 26 (Changes to this Agreement).
10.2 Delivery. We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Subscription Services) to the email addresses specified in your Order when we have received payment of all applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Appspace has no further delivery obligation with respect to the Software after delivery of the license keys.
10.3 Payment. You agree to pay all fees to Appspace in accordance with the terms of each Order. Other than as expressly set forth in Section 10.1 (Return Policy) and Section 20 (IP Indemnification by Appspace), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Appspace IDs during your License Term or Subscription Term, we will charge you for the increased number of Appspace IDs pursuant to the then-currently applicable rates in your next billing cycle. If you pay by credit card, you agree that we may bill your credit card or invoice you for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through an Order with a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller, with at least five (5) business day’s prior notice to you. In the event the Reseller fails to pay Appspace, you agree to use best efforts to have Appspace paid either by Reseller or you.
Upon termination, all payments for Professional Services or Support and Maintenance Services that have been provided 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. 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 ninety (90) 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 (including the language in Section 24.1 (Dispute Resolution; Arbitration)) or any other agreement which you may have with Appspace, Appspace will have the right to terminate or disable all Products, Support and Maintenance Services and Professional Services with no liability to you, including any liability for loss of content or for lack of backup.
10.4 Taxes. This Section 10.4 (Taxes) will not apply if you have placed your Order through a Reseller. You will be responsible for all related bank charges, taxes, withholdings, duties and levies in connection with the Products, Professional Services, or Support and Maintenance Services charges (excluding taxes based on the net income of Appspace). Your 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, you must pay to Appspace the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you 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, you 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 you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
11. No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Limited Release Versions (as defined below) (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta or limited release products we make available (“Limited Release Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Limited Release Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Limited Release Versions, but the Limited Release Versions will still remain subject to this Section 11 (No-Charge Products). All information regarding the characteristics, features or performance of Limited Release Versions constitutes Appspace’s Confidential Information (as defined in Section 16 below). To the maximum extent permitted by applicable law, we disclaim 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.
12. Restrictions. Except as otherwise expressly permitted in this Agreement, you 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 you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your 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 (APIs) to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
13. Your Development of Add-Ons.
13.1 Add-Ons. From time to time, Appspace may, upon written request, allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). You may distribute your Add-Ons to third parties, but only as permitted and agreed in writing by Appspace prior to such distribution.
13.2 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 you or to any third party with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us 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 us by a third party relating to your Add-Ons (including any representations or warranties you make about your Add-Ons) or your breach of this Section 13 (Your Development of Add-Ons).
14. License Certifications and Audits. At our reasonable request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products, no more than once every twelve (12) months. We will provide you with at least ten (10) days’ advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you 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 we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section 14 (License Certifications and Audits) to such licensors.
15. Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Appspace and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Appspace, including as they may incorporate Feedback (as defined below) (“Appspace Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Appspace, including sharing your Add-Ons or in the course of receiving Support and Maintenance Services (“Feedback”). Appspace may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Appspace’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
16. Confidentiality. Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how, 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. Any Appspace Technology 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 point 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 shall not operate as a separate warranty with respect to the operation of any Product. The obligations set forth in this Section will terminate three (3) years after the expiration or earlier termination of the Term (as defined below).
17. Term and Termination. This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either Party may terminate this Agreement by written notice to the other Party before the expiration of the Term 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. Either Party may also terminate the Agreement before the expiration of the Term if the other Party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with written notice to Appspace, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Subscription Services subscriptions, Support and Maintenance Services or Professional Services. Except where an exclusive remedy may be specified in this Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Appspace Technology, and your Appspace IDs will no longer be valid and may be disabled. You are required to delete any of the foregoing from your systems, as applicable (including any third party systems operated on your behalf), and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.7.3 (Indemnity for Your Data), 10.3 (Payment), 10.4 (Taxes), 11 (No-Charge Products) (disclaimers and use restrictions only), 12 (Restrictions), 13.2 (Conditions to Development of Add-Ons), 14 (License Certifications and Audits), 15 (Ownership and Feedback), 16 (Confidentiality), 17 (Term and Termination), 18.2 (Warranty Disclaimer), 19 (Limitation of Liability), 21 (Third Party Vendor Products), 24 (Dispute Resolution), 25 (Export Restrictions), and 27 (General Provisions).
18. Warranty and Disclaimer.
18.1 Due Authority. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement and of such Order.
18.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS-IS,” AND APPSPACE AND ITS SUPPLIERS EXPRESSLY DISCLAIM 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. YOU 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, NEITHER APPSPACE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A SUBSCRIPTION SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19. Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE 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. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR PRODUCTS AND SUPPORT AND MAINTENANCE SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE TWENTY U.S. DOLLARS ($20 USD). THIS SECTION 19 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (A) AMOUNTS OWED BY YOU UNDER ANY ORDERS, OR (B) YOUR BREACH OF SECTION 12 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 19 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
20. IP Indemnification by Appspace. We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and we will indemnify you and hold you 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, provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our reasonable discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Subscription Service, any prepaid amounts for the terminated portion of the Subscription Term. Appspace’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Appspace with respect to your license to Software or subscription to Subscription Services in the 12 month period immediately preceding the Claim is less than fifty thousand U.S. dollars ($50,000 USD); (2) if the Product is modified 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) if the Product is used in combination with any non-Appspace product and without Appspace’s written approval, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 7.7.3 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without Appspace’s prior written consent. THIS SECTION 20 (IP INDEMNIFICATION BY APPSPACE) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY APPSPACE UNDER THIS AGREEMENT.
21. Third Party Vendor Products. Appspace or third parties may from time to time make available to you third-party products or services, including RSS feeds, weather widgets, add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you will do so under a separate agreement (and exchange of data) solely between you and the third party vendor, including any payment obligations to the third party, because these are made available by Appspace on a non-commercial basis and Appspace is not reselling or profiting from these products or services. Appspace does not warrant or support non-Appspace products or services, whether or not they are designated by Appspace as “verified” or otherwise, and Appspace disclaims all liability for such products or services. If you install or enable any third party products or services for use with Appspace products, you acknowledge that Appspace may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Appspace products. Appspace shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
22. Publicity Rights. If agreed by the Parties, we may identify you as an Appspace end user in our promotional materials.
24. Dispute Resolution
24.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties 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 settlement within a period of 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. All negotiations and arbitration proceedings pursuant to this Section 24.1 (Dispute Resolution; Arbitration) 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.
24.2 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 24.1 (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, Texas, USA, and each Party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Dallas County, Texas, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party. Notwithstanding any language to the contrary in this Agreement, Appspace may bring a claim for payments owed and equitable relief in any court with proper jurisdiction, without the need for arbitration.
24.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 24.1 (Dispute Resolution; Arbitration), nothing in this 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.
24.4 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.
25. Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import Laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, Laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are 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 Your 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.
26. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Appspace account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance Services term, Professional Services term, or Subscription Term, as applicable, and the modified terms will apply regardless of whether you were notified of any revisions, meaningful or otherwise. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
27. General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by certified mail, return receipt requested, to Appspace GmbH or Appspace Inc., 5005 LBJ Freeway, Suite 1100, Dallas, Texas, Attn: Legal and Accounting Department. Your notices to us will be deemed given upon our receipt. 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 unforeseen events which are beyond the reasonable control of such Party, such as 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. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are 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. This Agreement and any Orders between Appspace and you constitute the entire agreement between you 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. 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. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). 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 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. 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.