2.1. Appspace Products. For the avoidance of doubt, the rights to and delivery and use of any Appspace Products is governed by the terms of the Appspace End User Agreement and not the terms of this Agreement, and, even if listed in an SOW, no Appspace Products (including any updates, upgrades, patches, and bug fixes) shall be considered a Deliverable under this Agreement. Customer acknowledges that the Services are being purchased separately from any Product licenses or subscriptions and that no such license or subscription is being provided or offered under this Agreement. Fees for the Services are separate from any fees paid for Products, and Customer’s payment obligations under this Agreement are not contingent on the purchase or use of any Product.
2.2. Appspace Ownership. Except for any limited licenses granted herein, Appspace owns and will retain all right, title, interest, and ownership (including all intellectual property rights with exception of Customer Materials incorporated therein) in and to the Deliverables and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any Feedback (as defined below)), unless otherwise specifically set forth in an accepted SOW.
2.3. Feedback. From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Appspace about, or in connection with, and in the course of using the Products, Deliverables, or receiving the 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. Payment and Acceptance
3.1. Payment. Customer will pay Appspace in accordance with terms of each SOW. Although most of the Services may be performed remotely or virtually, Customer agrees to reimburse Appspace for pre-approved travel, lodging and meal expenses incurred in the course of performing the Services at any location other than Appspace’s site, unless otherwise specified on the SOW (including any data sheet incorporated by reference into the SOW). Other than as expressly set forth in the applicable SOW or in Section 7.2 (Indemnification; By Appspace), all amounts are non-refundable, non-cancelable and non-creditable. If Customer purchases any Services through a SOW with a Reseller, Customer owes payment to the Reseller as agreed between Customer and the Reseller, but Customer acknowledges that Appspace may terminate any SOW if Appspace does not receive corresponding payment from the Reseller, with at least five (5) business day’s prior notice to Customer. In the even the Reseller fails to pay Appspace, Customer agrees to use best efforts to have Appspace paid either by Reseller or Customer.
Upon termination of this Agreement, all payments for Services or support and maintenance services already provided shall be accelerated and become immediately due and payable. 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 also agrees to reimburse Appspace for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to any other rights or remedies that Appspace may have at law or in equity, you acknowledge that if payment is not made within thirty (30) days of the date of the applicable SOW, whether owed directly to Appspace or an authorized Appspace reseller, then, notwithstanding any language to the contrary in this Agreement (including the language in Section 9.9 (Dispute Resolution), or any other agreement which you may have with Appspace, Appspace will have the right to terminate this Agreement, disable all Products, and/or cease providing the Services with no liability to you, including any liability for loss of content or for lack of backup.
3.2. Taxes. Customer will be responsible for all related bank charges, taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Appspace).
3.3. Acceptance. Unless otherwise set forth in the applicable SOW, each Deliverable shall be deemed accepted upon the earliest to occur of: (a) receipt by the Appspace from Customer of written notice that the Deliverable has been accepted by Customer following its testing thereof, or (b) the date which is ten (10) days after delivery of such Deliverable to Customer (“Accept(ance)”). A Deliverable may not be rejected unless it contains a material defect which would prevent such Deliverable from functioning substantially in accordance with the applicable specifications as set forth in the applicable SOW. If Customer, reasonably and in good faith, does not Accept the Deliverables, then Customer must within ten (10) days after delivery provide to Appspace written comments sufficient to identify the Customer’s objections and the applicable material nonconformities in the Deliverable. If Appspace reasonably and in good faith determines there is no material nonconformity with the Deliverable, the parties shall escalate such disagreement in accordance with Section 9.9 (Dispute Resolution). If Appspace agrees that a materially nonconformity exists within the Deliverable, Appspace shall have a commercially reasonable period of time, not less than ten (10) days, to resolve such nonconformities and deliver the Deliverables to Customer for additional Acceptance testing. Customer shall have ten (10) days upon delivery of the updated Deliverable to confirm resolution of the specified material nonconformities. Failure by Customer to confirm resolution of such material nonconformities within such ten (10) day period specified herein shall be deemed Acceptance of the Deliverable. This process shall continue until the Deliverable is Accepted.
4. Term and Termination.
4.1. Agreement Term. This Agreement takes effect on the Effective Date (as defined herein) and for as long as Customer has a valid SOW or completion of all projects in accordance with the outstanding SOW (the “Term”). The “Effective Date” of this Agreement is the date that is the earlier of (a) Customer’s initial receipt of Services or (b) the SOW Effective Date defined in the first SOW referencing this Agreement.
4.2. 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.
4.3. 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.
4.4. Refund or Payment upon Termination. If this Agreement is terminated by Appspace in accordance with Section 4.2 (Termination for Breach) above, Customer will pay any unpaid fees covering the reminder of the term of all SOWs to the extent permitted by Law.
4.5. 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: Sections 2 (Appspace Products and Ownership; Feedback), 3.1 (Payment) (but only with respect to orders placed during the term of this Agreement), 3.2 (Taxes), 4 (Term and Termination), 5.4 (Disclaimer), 6 (Confidential Information), 7.1 (Customer Indemnification), 8 (Limitation of Liability), and 9 (General) will survive any termination or expiration of this Agreement. Unless termination occurs as a result of a breach by Customer, Customer’s right under Section 1 (Services and Deliverables) to use Deliverables shall survive so long as Customer has a valid right under the Appspace End User Agreement to use the applicable Product and provided that Customer remains in compliance with the applicable use restrictions and confidentiality obligations in Sections 1 (Services and Deliverables) and 6 (Confidential Information) of this Agreement, respectively.
5. Warranty and Disclaimer.
5.1. Due Authority. Each Party represents and warrants it has the legal power and authority to enter into this Agreement.
5.2. Appspace Warranty. Appspace warrants it will perform the Professional Services in accordance with the terms and subject to the conditions set forth in the respective accepted SOW and (i) will use personnel of commercially reasonable skill, experience and qualifications and (ii) will be performed in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards. Appspace’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of Section 5.2 shall be Appspace’s commercially reasonable efforts to promptly re-perform the affected Professional Services and if this cannot be completed within a reasonable time (but no more than 60 days) after Customer’s written notice of breach, Customer may, at its option, terminate the applicable SOW.
5.3. Customer Warranty. Customer represents and warrants that Customer Materials does not and will not infringe or misappropriate any third party right, including any intellectual property rights, privacy rights or violate any Laws.
5.4. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 5.2 (APPSPACE WARRANTY), ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND APPSPACE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES 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 STATUORILY REQUIRE 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 SERVICES WILL BE ERROR-FREE; (B) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (D) THE SERVICES 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 SERVICES WILL BE CORRECTED.
6. Confidential Information. Confidentiality. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, and business, technical and financial information it obtains from the Disclosing Party (as “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Deliverables and any software, documentation or technical information provided by Appspace (or its agents) shall be deemed Confidential Information of Appspace without any marking or further designation. Except as expressly authorized in this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s obligations set forth in this Section 6 shall not apply to information which: (a) was rightfully in the possession of or known to the Receiving Party prior to receipt of the Confidential Information; (b) is, or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party who had no access to such Confidential Information. Notwithstanding the forgoing, the Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law, or court order (if and as allowed by such regulation, law, or court order and only to the minimum extent required to comply with such regulation, law or court order and with advance notice to the Disclosing Party). Appspace may disclose Customer’s Confidential Information to Appspace’s affiliates, agents, employees and contractors who need to know such Confidential Information for purposes of providing the Services.
7. INDEMNIFICATION.
7.1. 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 Materials, or Customer’s use of the 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 Services by Customer or Customer’s Affiliates in breach of this Agreement.
7.2. By Appspace. Appspace will defend Customer against any claim brought against Customer by a third party alleging that a Deliverable, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright of such third party (a “Claim”), and Appspace will indemnify Customer and hold the Customer harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed-to settlement by Appspace (including reasonable attorney fees) arising out of a Claim If your use of a Deliverable 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 its reasonable discretion (i) procure for you the right to continue to use the Deliverable in accordance with this Agreement; (ii) substitute a substantially functionally similar Deliverable with a non-infringing equivalent; or (iii) if neither (i) or (ii) is available, direct the return of the Deliverable and upon such return Appspace shall refund a prorated portion of the fees paid under the applicable SOW for such Deliverable based on a three (3) year straight line depreciation from the date of initial delivery. Appspace’s indemnification obligations under this Section 7.2 shall not apply to the extent: (1) the Deliverable 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; (2) the Deliverable is used in combination with any non-Appspace product and without Appspace’s written approval, software or equipment; or (3) you are engaged in unauthorized use of the Deliverables in contravention of this Agreement. THIS SECTION 7.2 STATES APPSPACE’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY DELIVERABLE PROVIDED BY APPSPACE UNDER THIS AGREEMENT.
7.3. Procedures. The indemnification obligations in this Section 7 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.
8. LIMITATION OF LIABLITY.
8.1. Exclusion of Damage. 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.
8.2. Damages Cap. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS 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 8 (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).
8.3. Failure of Essential Purpose. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 8 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
9. General
9.1. Notice. Any notice under this Agreement must be given in writing. Appspace may provide notice to Customer via email or through Customer’s account. Notice of updates to terms of use, privacy terms or other terms related to Appspace’s website and Products may be delivered by posting such updated on the website. Appspace’s notices to Customer will be deemed given upon the first business day after Appspace sends it. Customer may provide notice to Appspace by email at legal@appspace.com, certified mail, return receipt requested, to Appspace Inc., 382 NE 191st Street, Miami FL 33176, USA, Attn: Legal and Accounting Department. Notice sent to Appspace email will be deemed given upon Appspace sending a reply email acknowledging receipt.
9.2. 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.
9.3. Subcontractors. Appspace may use the services of subcontractors for performance of the Services under this Agreement, provided that Appspace remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement and (b) for the overall performance of the Services as required under this Agreement.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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.
9.9. 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 9.10 (Governing Law; Venue).
9.10. 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.
9.11. 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.
9.12. 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.
9.13. 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.
9.14. 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 you 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.
