Updated on May 22, 2024
This Appspace Hardware Policy and Terms of Use (these “Terms of Use“) is entered into by and between you (“you” or “Customer”) and Appspace, Inc., a corporation formed under the laws of the state of Delaware, with offices located at 400 N Tampa Street, Suite 1725, Tampa, FL 33602, USA; provided, however, that Appspace (Malaysia) Sdn Bhd, Appspace Australia Pty Ltd, Appspace Solutions Limited, and Appspace Technologies FZ-LLC may also provide products under this Agreement (“Appspace“). Each of these entities, along with Appspace, Inc., is a wholly owned subsidiary, or affiliate, of Appspace Holdings, Inc., a Delaware corporation. These Terms of Use govern Customer’s use of the Hardware provided to Customer by Appspace. If Customer is agreeing to this Agreement not as an individual, but on behalf of Customer’s company, then “you” or “Customer” means Customer’s company and by entering into this Agreement, Customer is agreeing to bind, and representing that Customer has full authority to bind, Customer’s company to this Agreement. Customer and Appspace may be referred to individually as a “Party” and collectively as the “Parties.”
1. Definitions. The following terms will have the meanings set forth in this Section 1 when used in this Agreement.
1.1. “Order” means Appspace’s ordering documentation or purchase flow that will specify Customer’s authorized scope of use for the Hardware.
1.2. “Hardware” means hardware that an Order calls on Appspace to provide to Customer for Customer’s internal business purposes.
2. Payment Terms.
2.1. Fees. Customer will pay Appspace the fees and charges set forth in, and in accordance with, the Order.
2.2. Payment Term. Unless otherwise identified on the Order, all fees and charges for the Hardware shall be payable monthly in advance by Customer within thirty (30) days of the invoice date. Late, unpaid invoices by Customer shall be subject a five percent (5%) late fee plus one and one half percent (1.5%) interest per month or the maximum amount allowed by law, whichever is less, which shall be added to the fee due and owed to Appspace. In addition to any rights or remedies that Appspace may have at law or in equity, Customer acknowledges that if payment is not made within ninety (90) days of the date of the invoice, then, notwithstanding any language to the contrary in these Terms of Use, Appspace will have the right to terminate these Terms of Use.
2.3. Taxes. All fees are exclusive of all applicable taxes, duties and similar levies. Customer shall pay all applicable taxes and assessments arising on or in connection with these Terms of Use (other than taxes based upon the net income of Appspace).
3. Term and Termination. These Terms of Use are in effect for as long as there is an active Order (the “Term”), unless sooner terminated as permitted in these Terms of Use. Either Party may terminate these Terms of Use by written notice to the other Party before the expiration of the Term if the other Party materially breaches any of the terms of these Terms of Use and does not cure the breach within thirty (30) days after written notice of the breach. Either Party may also terminate these Terms of Use 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. Except where an exclusive remedy may be specified in these Terms of Use, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms of Use, by law, or otherwise. Once these Terms of Use terminate, Customer will no longer have any right to use or access any Hardware, or any information or materials that Appspace makes available to Customer hereunder, and Customer will promptly return the Hardware to address directed to Customer by Appspace at Customer’s sole cost and expense.
4. Limited Right. During the term of the Order, Appspace grants Customer a limited, non-exclusive, non-transferable right to use the Hardware solely for Customer’s internal business purposes. Except for the limited right provided in this Section 4, Appspace retains all right, title and interest in the Hardware.
5. Risk of Loss. Risk of loss shall pass to Customer upon collection of the Hardware by a carrier at Appspace’s premises, plants or warehouses.
6. Installation. Customer is solely responsible for the installation of the Hardware.
7. Substitutions. Appspace may furnish suitable substitutes for Hardware that is unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers, provided such substitutions do not adversely affect the technical soundness of the Hardware. Appspace assumes no liability for deviation from published dimensions and descriptive information not essential to proper performance of the Hardware.
8. Software. Software, hosted and/or cloud-based solutions provided by Appspace to Customer in connection with the Hardware is subject to Appspace’s End User Agreement available at
https://www.appspace.com/legal/user-agreement/.
9. Force Majeure. Except for Customer’s payment obligations, neither Party will be liable for any failure or delay in performing its obligations under these Terms of Use to the extent such failure or delay is caused by any event beyond a Party’s reasonable control, that by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, electronic viruses, worms or corrupting microcode, shortage of supply or delay in delivery by Appspace’s vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or subcontractors. In such circumstances, the time for performance will be extended by a period equivalent to the period during that performance of the obligation has been delayed or failed to be performed.
10. Representations and Warranties.
10.1. Hardware Warranty. Appspace represents and warrants to Customer that all Hardware supplied to Customer by Appspace under an Order will be covered only by the Hardware manufacturer’s warranty which will be passed on to Customer to the fullest extent allowed, if any.
10.2. Right to Contract & Disclose. Each Party represents and warrants to the other Party that: (a) it has the legal power to enter into these Terms of Use; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; and (c) it is not a party to any agreement with a third-party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder.
Compliance with Laws. Each Party’s business and performance is and will be in compliance with all applicable international, federal, state, and local laws and government rules and regulations.
10.4. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 10, APPSPACE DOES NOT MAKE ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND APPSPACE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Confidentiality. Except as otherwise set forth in these Terms of Use, 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. The Receiving Party shall use the Disclosing Party’s Confidential Information strictly to perform its obligations hereunder. 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 applicable 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 Hardware. The obligations set forth in this Section will terminate three (3) years after the expiration or earlier termination of the Order”
12. Indemnification. Hardware conveyed to Customer under an Order is not designed or intended for any application in which the failure of the Hardware could result in personal injury or death. Customer will indemnify, defend and hold harmless Appspace, its directors, officers, employees, suppliers, subcontractors, successors and assigns from and against all claims, costs, damages and expenses (including reasonable attorneys’ fees and costs) arising, directly or indirectly, out of any third party claim of product liability, personal injury or death when associated with such unintended use of any Hardware, notwithstanding any third party claim that Appspace, or its suppliers or subcontractors were negligent regarding the design or manufacture of the Hardware or any part of the Hardware.
13. Limitation of Liability. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OF USE SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE RELEVANT CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MARLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Export Controls. The Hardware is 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 Hardware. Customer 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 Hardware 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. Customer represents and warrants that 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.
15. Governing Law. The formation, construction, and interpretation of these Terms of Use shall be controlled by the laws of the State of Delaware. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of these Terms of Use. Any dispute relating to these Terms of Use shall be subject to the exclusive jurisdiction of the state and federal courts in the State of Delaware, U.S.A., and the Parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
16. Waiver. Neither Party will be deemed to have waived any of its rights under these Terms of Use by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms of Use will constitute a waiver of any other breach of these Terms of Use.
17. Severability. If a court of competent jurisdiction rules that a provision of these Terms of Use are unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of these Terms of Use will continue in full force and affect.
18. Entire Agreement; Modification. These Terms of Use and any Orders between Appspace and Customer constitute the entire agreement between Appspace and Customer relating to the Hardware and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Hardware or any other subject matter covered by these Terms of Use. If any provision of these Terms of Use is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Appspace may update or modify these Terms of Use from time to time. If a revision meaningfully reduces Customer’s rights to use the Hardware, Appspace will use reasonable efforts to notify Customer. For the avoidance of doubt, any Order is subject to the version of these Terms of Use in effect at the time of the Order. If there is a conflict between these Terms of Use and any Order, the Order will prevail with respect to any conflicting term.
19. Independent Contractors. Nothing contained herein or done in pursuance of these Terms of Use shall constitute either Party the agent, partner or joint venture of the other for any purpose or in any sense whatsoever.
20. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms of Use.
21. Assignment. Customer may not assign these Terms of Use without Appspace’s prior written consent. Appspace will not unreasonably withhold its consent if the assignee agrees to be bound by the terms and conditions of these Terms of Use. Appspace may assign its rights and obligations under these Terms of Use (in whole or in part) without Customer’s consent.
22. Survival. Notwithstanding anything to the contrary herein, the provisions within these Terms of Use which, by their purpose or nature, are intended to survive expiration or termination of these Terms of Use, shall survive expiration or termination of these Terms of Use.
23. Notices. Any notice under these Terms of Use must be given in writing. Appspace may provide notice to Customer via email or through Customer’s account. 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 certified mail, return receipt requested, to Appspace Inc., 382 NE 191st Street, Miami FL 33176, USA, Attn: Legal and Accounting Department. Customer’s notices to Appspace will be deemed given upon Appspace’s receipt.
24. No Strict Construction. The language used in these Terms of Use will be deemed the language chosen by the Parties to express their collective mutual intent. These Terms of Use will be construed as if drafted jointly by the Parties and no rule of strict construction will be applied.
25. Headings. The headings provided in these Terms of Use are for convenience only and shall not be used in interpreting or construing these Terms of Use.
