Welcome to Appfire!
This End User License Agreement, including each Order Form, Appfire policies, the Product-Specific Terms, and any other documents referenced herein (collectively, the “EULA“), is a binding agreement between the Appfire Entity identified below (“Appfire,” “Licensor,” “our,” “we,” or “us”) and the person or entity identified on the Order Form (“Licensee,” “you,” “your”, “Customer”) and shall govern your acquisition and use of the Products.
The “Effective Date” of this EULA is the date which is the earlier of (a) your initial access to or use of the Products or (b) the effective date of the first Order referencing this EULA.
BY ACCESSING, DOWNLOADING, INSTALLING, COPYING, CLICKING ON AN ″ACCEPT″ BUTTON, OR OTHERWISE USING ANY PRODUCT, YOU AGREE TO THE TERMS OF THIS EULA. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT TO US THAT YOU HAVE FULL AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS:
- DO NOT ACCESS, DOWNLOAD, INSTALL, COPY, CLICK ON AN ″ACCEPT″ BUTTON, OR USE THE PRODUCTS; AND
- PROMPTLY DESTROY ALL COPIES OF THE PRODUCTS, INCLUDING ANY DOCUMENTATION.
THE PRODUCTS ARE OFFERED ONLY TO PERSONS WHO ARE NOT CONSUMERS UNDER ANY APPLICABLE LAW. IF YOU ARE A CONSUMER, YOU ARE NOT AUTHORIZED TO ENTER INTO THIS EULA. IF YOU RESIDE WITHIN THE EUROPEAN UNION, YOU ARE A CONSUMER IF YOU ARE A NATURAL PERSON PURPORTING TO ENTER INTO THE EULA FOR ANY PURPOSE OUTSIDE YOUR TRADE, BUSINESS, CRAFT OR PROFESSION.
We sell our Products through multiple affiliated entities (each an “Appfire Entity”). Appfire Technologies, LLC will be the Licensor for most Products; however:
|If you license:||the Licensor will be:|
|Beecom Products||Appfire Switzerland AG Aargauerstrasse 180|
|Botron Products||Appfire Bulgaria Ltd 1 Chrerni Vrah Blvd., Floor 7 Sofia 1421 Bulgaria|
|Nextup Products||Nextup ai, Inc. 3515 River Ridge Way Perrysburg, Ohio, USA 43551|
|Snapbytes Products||Snapbytes Limited 3rd Floor 1 Ashley Road Altrincham Cheshire United Kingdom WA14 2DT|
|Big Picture [formerly: SoftwarePlant] Products||Big Picture sp. z o.o. ul. Łopuszańska 95 02-457 Warsaw, Poland|
|Spartez Products||Spartez Software Systems sp. z o.o. ul. Bernarda Chrzanowskiego 11 80-278, Gdańsk Poland|
|7pace Products||7pace GmbH Schleissheimer Str. 75 80797 Munich, Germany|
If you license Products from multiple Appfire Entities, then the EULA for each such Product is a stand-alone agreement between you and the applicable Appfire Entity.
In addition to this EULA, you agree to be bound by any additional terms, policies and guidelines which we make available with respect to a particular Product (“Product Specific Terms”). The Product Specific Terms are incorporated herein by reference. If the terms of this EULA conflict or are inconsistent with the Product Specific Terms, the Product Specific Terms will control with respect to that specific Product, and this EULA will govern as to all other matters.
Certain capitalized terms are defined in this Section 1, and others are defined contextually in this EULA:
- “Accessible Code” means source code that is unprotected and intended by us to be accessible for use by you.
- “Affiliate(s)” means with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
- “Atlassian Marketplace” means the online marketplace that provides downloadable, accessible, and cloud-based application Products available at: https://marketplace.atlassian.com or its successor.“ Authorized Reseller” means a third party licensing or otherwise distributing the Products, who are authorized by Appfire to do so.
- “Authorized Reseller” means a third party licensing or otherwise distributing the Products, who are authorized by Appfire to do so.
- “Authorized User” means a person that you have designated to access and use the Products in accordance with the Scope of Use and for whom you have paid the required Fees. Authorized Users also include any Secondary Users that you permit to use the Products, subject to Section 3.
- “Cloud Products” collectively means Cloud Service and Data Center Subscription.
- “Cloud Service(s)” means any software functionality made available by Appfire in a hosted or cloud-based environment as specified in an Order Form.
- “Data Center Product” means Software made available by Appfire and intended to be hosted on a Customer’s remote server. From time to time, Data Center Services may be designated as “Data Center”, “Self-Hosted”, “Private Server”, or similar on the Order Form.
- “Data Center Subscription” means your permitted rights to access and operate the Software in object code only during the Subscription Term and as limited by the Scope of Use on a remote server in a data center as further defined in Section 4.
- “Documentation” means the applicable Product’s published documentation, usage guides and policies, as updated from time to time, currently located here, and any Product Specific Terms.
- “Feedback” means comments, questions, ideas, suggestions, or other feedback relating to the Products that you may choose to submit to us from time to time.
- “Fees” mean all Fees and/or payments stated in an Order applicable to the Products, including Maintenance. Fees also include any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order or Documentation.
- “License Term” means the duration for which you are permitted to license the Software, as set forth in an Order.
- “Maintenance” means: (a) Product Updates, (b) required Partner Marketplace platform compatibility updates, and (c) the online support portal for technical issues related to the use of the applicable Products located here. Maintenance is sold together as an inseparable bundle with the Cloud Products. Server products include the first year of Maintenance; thereafter, you may renew Maintenance at the then-current Maintenance rates. In no event may the Cloud Products be used on a standalone basis without Maintenance.
- “Maintenance Term” means the period during which Appfire will provide the Maintenance for the Server as specified in the Order Form, including any renewals.
- “Partner Marketplace” means the third party online marketplace operated by a third party that provides downloadable, accessible, and/or cloud-based application Products.
- “Media” means all images, icons, text files, pdfs, or static non-code files contained within the Products.
- “No-Charge Products” means any product expressly specified in the Order Form as no-charge, free, for trial use, for free non-profit use, or a Beta Version.
- “Order Form” or “Order” means Appfire’s applicable online order page(s), or the invoice or other ordering document provided by Appfire, an Authorized Reseller, or Partner Marketplace. Orders may include and describe purchases of Software licenses, Cloud Products, Maintenance, increased or upgraded Scope of Use or renewals.
- “Party” or “Parties” means the applicable Appfire Entity, you or both, as applicable.
- “Products” means the Software, Cloud Products, Data Center Products, together with related Documentation and Maintenance.
- “Product Update(s)” means any bug fixes, patches, major or minor releases, updates, upgrades, changes, enhancements, modifications, or add-on components for a Product that may be made generally available by Appfire as part of Maintenance.
- “Scope of Use”means your authorized scope of use or authorized scope of access to the Products, which may include: (i) the number of permitted installations of the Software, the number of Authorized Users, the number of authorized servers, the number of unique data set platforms, or other defined Product utilization limitations, (ii) storage or capacity (for Cloud Products), (iii) numbers of licenses, copies or instances (for Software), (iv) Term, or (v) other restrictions or billable unit calculations or limitations.
- “Server” means the Software as a server deployment option during the applicable License Term.
- “Software” means the commercially available Software made available for download or access, whether licensed for a fee or made available at no charge as specified in an Order Form, including Accessible Code, Media, printed materials, printed, online or electronic documentation, and Third-Party Software.
- “Subscription Term” means your permitted subscription period for a Cloud Product and Maintenance, as set forth in the applicable Order Form.
- “Term” means the License Term, Subscription Term, and/or Maintenance Term, as applicable and specified in the Order Form.
2. Account Registration
You may need to register for one or more of the following:
- An Appfire account
- An Partner Marketplace account(s)
- A whiteboards.io account
in order to place Orders or access or receive the Product. Any registration information that you provide to us or a third party 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 solely responsible for any activity that occurs through your accounts.
You may be able to Order, use or access the Products without a Partner Marketplace account; for such Products, you are solely responsible for any activity that occurs through your device in connection with the Products.
3. Orders; Delivery; Authorized Users
(a) Your Order Form will specify your Scope of Use for the Term, as applicable. An Order Form may also include any applicable Product or Maintenance renewal terms, or purchases you make to increase or upgrade your Scope of Use. You may increase the number of Authorized Users permitted to access the Product by placing a new Order Form or, in some cases, directly through the Product.
(b) Any applicable license keys for the Products set forth in the Order Form will be delivered to your account before or promptly following our receipt of payment of applicable Fees. You are responsible for accessing your account to determine that we have received payment and your Order Form has been processed. All deliveries under this EULA will be electronic. For the avoidance of doubt, you are responsible for Product installation, and you acknowledge that we have no further delivery obligation with respect to the Product after delivery of the license keys.
(c) Only Authorized Users may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User as indicated in the applicable Order Form and Product Specific Terms. You are responsible for compliance with this EULA by all Authorized Users, including what Authorized Users do with Your Data, and for all Fees incurred by Authorized Users (or from adding Authorized Users). All use of Products must be solely for the benefit of you (except as expressly permitted in Section 3(d) below) and must be within the Scope of Use.
(d) Subject to the terms and conditions of this EULA, you may permit your customers’ end users (“Secondary Users”) limited rights to use the Products solely so that they may view and interact with your offerings that are enabled by such Products (each an “Enabled Offering”). You may not permit Secondary Users to use the Products for purposes unrelated to using the Enabled Offering or grant Secondary Users administrator, configuration or similar access to the Products. You may charge Secondary Users a fee for your Enabled Offering, but you may not designate a portion of such fee as specifically for use of the Products. Secondary Users are Authorized Users and accordingly, you are responsible for Secondary Users’ compliance with the terms of this EULA, including Section 5 (License Restrictions). You are solely responsible for your Enabled Offerings. Notwithstanding anything to the contrary in this EULA, Appfire has no direct or indirect warranty, indemnity or other liability or obligations of any kind to Secondary User(e) You may be able to specify one or more Authorized Users who will have administrative rights and controls over your use of Cloud Products (“Administrators”). These may include placing orders for Cloud Products or enabling additional Software (which may incur Fees); creating, de-provisioning, monitoring, or modifying Authorized User accounts, and setting Authorized User usage permissions; and managing access to Your Data by Authorized Users or others. Administrators may also take over management of accounts previously registered using an email address belonging to your domain. You are responsible for designating individuals as Administrators and any actions they take in that capacity. You agree that our responsibilities do not include management or administration of the Cloud Products for you. If you order Cloud Products through an Authorized Reseller, you are responsible for determining whether the Authorized Reseller will serve as an Administrator for you, and for any including any related rights or obligations in the agreement you put in place with such Authorized Reseller. As between you and Appfire, you are solely responsible for any access by an Administrator to your accounts or your Authorized Users’ accounts. Some Cloud Products require Authorized Users to be designated by Administrators; some allow Authorized Users to sign up for individual accounts which can become associated with teams or organizations at a later time; and some may allow Authorized Users to invite other Authorized Users. You are responsible for understanding the settings and controls for each Cloud Service you use and for controlling whom you allow to become an Authorized User. If payment is required for an Authorized User to use or access a Cloud Product, then we are only required to provide the Cloud Product to those Authorized Users for whom you have paid the applicable Fees, and only such Authorized Users are permitted to access and use the Cloud Product.
4. Grant of License; Right to Access
(a) Subject to the terms and conditions of this EULA, the applicable Order Form and the Documentation, Appfire grants you the following rights with respect to the Products.
- Server. For the Server license set forth in the applicable Order Form, Appfire grants you a perpetual (subject to termination in accordance with Section 13), worldwide, non-exclusive, non-transferable (except as set forth in Section 23), non-sublicensable license to: (a) download, install, use and operate the Software in object code only and as limited by the Scope of Use, (b) make and install copies of the Software to support such Scope of Use, and (c) make one (1) copy of the Software for data protection, archiving and backup purposes only and for no other purpose.
- Data Center Subscription. For the Data Center Subscription set forth in the applicable Order Form, Appfire grants you a worldwide, non-exclusive, non-transferable (except as set forth in Section 23), non-sublicensable license during the Subscription Term to access and operate the Software in object code only and as limited by the Scope of Use on a remote server in a data center either: (a) owned by you, or in which you have leased server capacity; or (b) hosted by a third party on your behalf, provided that (i) no other party is allowed to access or use the Software or Software functionality except for you and your Authorized Users, (ii) you have no rights, contractual or otherwise, to take possession of the Software at any time, and (iii) you are fully responsible for any act or omission by the third party hosting the Software that results in a breach of this EULA or infringement of our intellectual property rights, whether or not you authorized the host to undertake such act or omission. The Subscription Term for the Data Center Subscription will be set forth in the applicable Order Form (or if none is set forth will be twelve (12) months from the effective date of the Order Form) and will be subject to automatic renewal for successive one-year Subscription Terms unless (i) either Appfire or you provide written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term, or (ii) we cease to make that particular Data Center Subscription generally available, provided that we use commercially reasonable efforts to provide you with prior notice thereof. If you cancel your Data Center Subscription, your license to use the Data Center Subscription will terminate at the end of the Term and you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- Cloud Services. For Cloud Services set forth in the applicable Order Form, Appfire grants you a worldwide, non-exclusive, non-transferable (except as set forth in Section 23), non-sublicensable license during the Subscription Term to access and use the Cloud Service as limited by the Scope of Use. The Subscription Term for the Cloud Services will be set forth in the applicable Order Form (or if none is set forth will be twelve (12) months from the effective date of the Order Form) and will be subject to automatic renewal for successive one-year Subscription Terms unless (i) either Appfire or you provide written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term, or (ii) we cease to make that particular Cloud Service generally available, provided that we use commercially reasonable efforts to provide you with prior notice thereof. If you cancel your subscription to a Cloud Service, your license to use the Cloud Service will terminate at the end of the Term and you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- No-Charge Products. For No-Charge Products as set forth in the applicable Order Form, Appfire grants you a limited term, worldwide, non-exclusive, non-transferable (except as set forth in Section 23), non-sublicensable license to use or access the No-Charge Products. Your use of No-Charge Products is subject to any additional terms specified by us and is only permitted during the Subscription Term (or if no Subscription Term is indicated, thirty (30) days). Except as otherwise set forth in this Section 4, the terms and conditions of this EULA, including Section 5 (Restrictions), fully apply to No-Charge Products. After the Subscription Term has expired you must either (i) purchase and abide by the applicable license for the generally available Product, or (ii) remove and delete all copies of, and cease access to, any No-Charge Products. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion without notice and without liability to you. You understand that any pre-release and beta versions of our Products (“Beta 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 Beta Version will ever be made generally available. In some circumstances, we may charge a Fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this paragraph.
- Evaluation of Products. To the extent a Partner Marketplace offers trial periods for evaluation purposes or Appfire otherwise extends a trial period to you in writing, Appfire grants to you a non-exclusive, non-transferable (except as set forth in Section 23), one time, limited use license (an “Evaluation License”) to download, install, use and operate the Software on a single server, or to access the Cloud Products, for the duration set forth on the Partner Marketplace, but not to exceed a thirty (30) day period (“Evaluation Period”), and by a limited number of temporary users as specified by us in our sole discretion. Upon the expiration of the Evaluation Period, the Evaluation License will terminate and you must uninstall, remove and delete all copies of the Software, or cease any access to or use of the Cloud Products, unless you have purchased a commercial license from us, the Partner Marketplace, or an Authorized Reseller. You are prohibited from acquiring and using multiple Evaluation Licenses for the same Product simultaneously or serially without our express prior written consent. Attempts to circumvent this prohibition, such as but not limited to using multiple email addresses within the same organization to continue to obtain Evaluation Licenses, are expressly prohibited and constitute a violation of this EULA. All Evaluation Licenses must (a) be acquired by the entity that holds the license to the server; (b) be installed on a physical or virtual server owned or leased by you; (c) not be used for any commercial or business purposes other than to evaluate the Product; and (d) not be used with more than three (3) Evaluation Licenses per server. Notwithstanding the foregoing, some of our Products may offer an extended Evaluation Period or to run more than three (3) Evaluation Licenses on a server. If an extended Evaluation Period or, more Evaluation Licenses per server, is available for a Product, you must contact us at https://appfire.com/eula-contact/ in order to request such an extension or increase, which may be granted in our sole discretion. In the event your use of a Product exceeds the limitations on the use of the Evaluation License set forth in this paragraph without our express approval, you will be in breach of this EULA. In such event, without limiting any other remedy available to us, we reserve the right to bill you for, and you agree to pay, any accrued Fees for your use of the Product beyond the scope of the Evaluation License.
To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, Evaluation Licenses, including any Maintenance, warranty, and indemnity obligations.
(b) Product Updates. Although Appfire has no obligation to provide Product Updates, Appfire may provide Product Updates from time to time. Further, Appfire reserves the right to make changes to the Products or modify or discontinue, temporarily or permanently, functions and features of the Products or the Products themselves. In the event Appfire intends to discontinue a Product, Appfire shall use commercially reasonable efforts to provide at least six (6) months’ prior notice via the Appfire website or applicable Appfire customer portal. All such Product Updates shall be subject to the terms of this EULA unless specifically set forth in the Product-Specific Terms. You agree to promptly install all Product Updates made available for the Products.
(c) This EULA applies whether you purchase a license to the Products directly from us, through the Atlassian Marketplace, through an Authorized Reseller or otherwise. If you purchase a license to the Products through an Authorized Reseller, your Scope of Use shall be as stated in the Order Form provided to you by the Authorized Reseller, and the Authorized Reseller is responsible for the accuracy of any such Order Form. Authorized Resellers are not authorized to make any promises or commitments on our behalf, and we are not bound by any obligations to you other than what is included in this EULA.
(d) Product Updates. Although Appfire has no obligation to provide Product Updates, Appfire may provide Product Updates from time to time. Further, Appfire reserves the right to make changes to the Products or modify or discontinue, temporarily or permanently, functions and features of the Products or the Products themselves. In the event Appfire intends to discontinue a Product, Appfire shall use commercially reasonable efforts to provide at least six (6) months’ prior notice via the Appfire website or applicable Appfire customer portal. All such Product Updates shall be subject to the terms of this EULA unless specifically set forth in the Product-Specific Terms. You agree to promptly install all Product Updates made available for the Products.
(f) This EULA applies whether you purchase a license to the Products directly from us, through a Partner Marketplace , through an Authorized Reseller or otherwise. If you purchase a license to the Products through an Authorized Reseller, your Scope of Use shall be as stated in the Order Form provided to you by the Authorized Reseller, and the Authorized Reseller is responsible for the accuracy of any such Order Form. Authorized Resellers are not authorized to make any promises or commitments on our behalf, and we are not bound by any obligations to you other than what is included in this EULA.
5. Customer Responsibilities
(a) You will ensure that only Authorized Users access or use the Products and only in accordance with this EULA, Documentation, Acceptable Use Policy and any applicable laws and government regulations.
(b) You agree that you will not, except as expressly permitted by the Documentation for the Product, nor will you allow any third party to: (i) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive any part or whole of the Products except to the extent expressly permitted by law (and then only with prior written notice to Appfire; (ii) directly or indirectly access or use any Third-Party Software independent from the Product in connection with which you obtained it, except as may be expressly permitted by your license to use such Third-Party Software, if separate from this EULA; (iii) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Products; (iv) provide any data or information not owned by you that you obtain through the Products to a person who is not an Authorized User; (v) modify, create any derivative work of or amend the Products; (vi) publish, promote, broadcast, circulate or refer publicly to the Appfire name, trade name, trademark, service mark or logo; (vii) commit any act or omission which will likely result in our, or any of our third party suppliers’, reputation being brought into disrepute or which could otherwise reasonably be expected to have or does have a material and adverse effect on our interests; (viii) offer or allow the Products to be used on a rental, timesharing, subscription, hosting or outsourcing basis or otherwise purport to distribute the Products without entering into a separate distribution agreement with us; (ix) access or use Products for competitive analysis or similar purposes; or (x) copy or embed elements of the Accessible Code contained in the Software into other software. The Software may include license protection mechanisms that are designed to manage and protect our intellectual property rights and those of our third party suppliers. You must not modify or alter those features to try to defeat the license protection mechanisms. Without limiting any other right of Appfire, any violation by your or your employees, contractors or agents of this Section will result, without notice from us, in the immediate termination of this EULA as to any and all Products.
6. Third-Party Products
(a) You and your Authorized Users may use third party products, or implementation, customization, training or other services provided by third parties, in connection with your use of the Products. In addition to your obligations of this EULA, additional obligations may apply in relation to any use of other third party products or services by you which are not included in the normal use of the Products as permitted under the terms of this EULA. Your use of any third party products or services is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services (including Third-Party Software) with the Products, you acknowledge that the third party providers may access or use Your Data as required for the interoperation of their products and services with the Products. This may include transmitting, transferring, modifying, or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the agreement between you and such third party provider it is your responsibility to carefully review such agreement. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. APPFIRE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS.
(b) Some of our Products use third party open source software that is embedded in the Products (“Third-Party Software”). We may enable interoperation of the Products with Third-Party Software as set forth in Section 6(a) above. Third-Party Software are not the Products and remain subject to their own license or subscription terms.
(c) Our Cloud Services uses, requires, and depends on various third party APIs. We disclaim any liability for any failure or limitations of these APIs or services. Partner Marketplace, or any other API provider, may remove the API endpoints required for the Cloud Services to function properly. We expressly disclaim any liability for the consequence of such actions by third parties.
(d) Providers of Third-Party Software are third party beneficiaries of this EULA.
7. Maintenance and Online Support
You may submit requests for support via the applicable Product support portal as set forth in the Documentation.
8. Fees and Taxes
In consideration of the licenses granted to you and services specified on an Order Form, you must pay all Fees within the period indicated in the applicable invoice or as otherwise provided in our pricing terms and in the manner directed at the time of purchase of the Products. Failure to pay Fees by their due date may result, without limitation, in the immediate termination of the licenses and rights granted to you under this EULA. Fees for Products exclude sales, value added, excise, gross revenue and other taxes, duties, levies or governmental charges imposed with respect to the sale, delivery or use of any Products covered hereby (collectively “Taxes”). Unless you provide a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, you are responsible for payment of all Taxes assessed or collected by any governmental body arising from Appfire’s provision of the Products hereunder, except any taxes assessed on our net income. If we are required to directly pay or collect Taxes related to your use or receipt of the Products hereunder, you agree to promptly reimburse us for any amounts paid by us.
9. Reservation of Rights and Ownership
The Products are made available to you on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms in this EULA such as “purchase,” or “sale.” Except as specifically set forth in this EULA and an Order Form, you have no right to use any Products. The Products and all copies thereof are protected by copyright and other intellectual property laws and treaties. We and our licensors have and retain all right, title, and interest in the copyright, and all other intellectual property rights, in and to the Products (including Media), the Documentation, and any copies of the Products. If the Products contain Documentation that is provided only in electronic form, you may print one copy of such electronic Documentation. From time to time, you may choose to submit Feedback to us. We may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation to you, including royalties or restriction based upon your intellectual property rights. No Feedback will be considered your Confidential Information, and nothing in this EULA limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
10. Data Security & Privacy
As between us, you retain all right, title and interest in and to any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through our Products or through our online support systems as further set forth in Section, and any other related platforms used to provide support (“Your Data”). You grant and agree to grant Appfire a non-exclusive, worldwide, royalty-free fully paid up right to (a) 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 Product to you, and (b) for any Product that enables you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Product.
Customer order data, if any, is stored in an encrypted format on servers with both physical and electronic safeguards. Application data, if any, is stored on redundant storage nodes to protect data from hardware failures. The nature of data is such that we cannot, however, guarantee that in all cases Your Data will be retrievable or able to be reconstructed in the event of loss or damage to Your Data or any storage nodes. Therefore, you are responsible for maintaining your own backup of all of Your Data and for its reconstruction if we are reasonably unable to retrieve it from our redundant storage nodes.
You agree to comply with applicable law in providing Your Data to us. You represent and warrant that (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Appfire and to grant the rights granted to Appfire in this EULA and (ii) Your Data and its transfer to and use by Appfire as authorized by you under this EULA do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Appfire 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. You will not store personally identifiable information or other protected information in any data field in any Product which is not intended for the storage of personally identifiable information. You acknowledge and agree that we may disclose personally identifiable information under special circumstances, such as to comply with law.
Each party agrees that all information that a reasonable person should consider confidential in the context of its disclosure or due to the nature of the information itself, code, inventions, know-how, business, technical and financial information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) constitutes confidential property of the Disclosing Party (“Confidential Information”). Any intellectual property, the underlying technology, and any performance information relating to or regarding the Products, including but not limited to all information regarding the characteristics, features, selection and arrangement of data, or performance of Beta Versions shall be Confidential Information of ours without any requirement for marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in strict confidence and not use or disclose any Confidential Information of the Disclosing Party. This nondisclosure obligation shall not apply to any information that the Receiving Party can document: (i) was rightfully in Receiving Party’s possession or known to Receiving Party on a non-confidential basis prior to receipt of the Disclosing Party’s Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by Receiving Party or its employees who did not have access to or make use of any of Disclosing Party’s Confidential Information. The Receiving Party may also disclose Confidential Information of the Disclosing Party if required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Receiving Party acknowledges that disclosure of Confidential Information of the Disclosing Party would cause substantial and irreparable harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by Receiving Party, Disclosing Party shall be entitled to appropriate equitable relief, without the necessity of posting of bond, in addition to whatever other remedies Disclosing Party might have at law.
12. Notification of Breach
If you discover you have breached any of your obligations under this EULA you must immediately report such breach to us by sending a written notice detailing such breach to email@example.com. Where a breach involves the distribution or use of Products in manner inconsistent with this EULA or outside of the Scope of Use (including the use and distribution of Third-Party Software), Appfire and/or any third party owner of Third-Party Software will be entitled (without prejudice to any other right or claim that Appfire or any third party owner of Third-Party Software may have against you) to charge you, in addition to any other Fees payable by you under this EULA, a fee calculated as follows: (a) the number of prohibited distributions or uses multiplied by (b) the respective list prices that Appfire or the third party owner of Third-Party Software charges for the Products or the Third-Party Software, as the case may be.
13. Term, Renewals and Termination
(a) The Order Form for Products will include the applicable Term for the Product. The Subscription Term or Maintenance Term will commence on the Order Form date (unless otherwise stated) and expire on the expiration date indicated in your account.
(b) Unless you have selected the “auto renewal” option in your account, any renewals must be mutually agreed upon by the Parties in writing. All renewals are subject to the applicable Product continuing to be offered and will be charged at the then-current Fees and rates.
(c) Unless otherwise specified in an Order Form or the relevant Partner Marketplace terms, you may terminate your Order of a Product under this EULA, in the event of a material breach by Appfire that has not been cured within thirty (30) days of your written notice to Appfire of such breach. Your license to access and use the Products shall automatically terminate upon the earlier of (i) your failure to comply with the terms of this EULA; or (ii) upon the expiration date set forth in any Order Form. Upon expiration of your Term, your license to the Software will terminate, your rights to use or access the Cloud Products will cease, and any rights to Maintenance, will expire at the end of the applicable Term. Upon expiration or termination, you are required to remove all Software from your computer systems, destroy any copies of any Product in your possession and cease access to and use of any Cloud Product. You must pay any outstanding amounts due for Products for which you have agreed to purchase a license under an Order Form, even if you terminate your license to that Product under this Section 13(a). All amounts paid to us are non-refundable and non-creditable.
(d) Upon termination of this EULA for any reason, you will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of this EULA, so you should make sure to export Your Data using the functionality of the Products during the applicable Subscription Term.
(e) Sections 9 through 29 and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this EULA.
14. License Certifications
No more than once in any twelve (12) month period, or at any time if we reasonably suspect that (a) the Products have been distributed to, or obtained by, any person or party without a valid license; (b) the Third-Party Software is being varied or accessed or used independently of the Products without express permission from the Third-Party Software owner; or (c) you are otherwise in breach of this EULA, we may request in writing, and you agree to provide within thirty (30) days, a complete and accurate report detailing your use of the Product and compliance with the Scope of Use during the prior twelve (12) month period. If the report shows that your use of the Product exceeded the Scope of Use (the “Excess Use”), you will purchase, within thirty (30) days following the report date: (a) Product licenses for all such Excess Use and for compliance with the Scope of Use going forward, and (b) if we are providing Maintenance for such Product, associated Maintenance fees for such periods. Any Fees or other fees assessed under this Section 14 will be at our then-current rates. Such Fees and other fees will be our sole and exclusive remedy for the Excess Use, provided that: (i) if you engage in Excess Use twice during any five (5) year period, or (ii) if you fail to provide reports as requested in accordance with this Section 14, we may terminate the license granted for such Products as contemplated in Section 13(a). Notwithstanding the foregoing, “Excess Use” shall not apply to any Evaluation License granted hereunder, or your failure to comply with the license restrictions set forth in Section 5, and we reserve all rights and remedies at law or equity for any such breach.
15. Publicity Rights
You grant us the right to include your name, company name, logo, and likeness that you provide, and any review that you may provide (in full or in part) to us, in advertising, media relations, trade shows, our website, corporate presentations, financial reports, and other similar promotional activities. You can revoke this right at any time for all Products by completing the following form: http://appf.re/publicity to request to be excluded from future Product promotional material. We endeavor to respond to a verifiable request within thirty (30) days of its receipt. If we require more time (up to 90 days), we will inform you of the reason and extension period in writing.
16. Product Service Analyses
Appfire may (i) compile statistical and other information related to the performance, operation and use of the Products, and (ii) use, and share data from the Products environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Product Analyses”). Product Analysis will not incorporate any information, in a form that could serve to identify Customer or an individual. Appfire retains all intellectual property rights in Product Analyses.
17. Export Compliance
You may not use or otherwise export or re-export, directly or indirectly, any Product except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. You will be solely responsible for obtaining any license from the United States government required to export or re-export such Product, and their components, and to comply with applicable United States government export regulations. In particular, but without limitation, the Products may not be used in, exported or re-exported into (a) Russia, Belarus, or any U.S. embargoed countries or (b) used or made available to any person or entity on the U.S Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce Denied Persons List or Entity List, and any similar list in the jurisdiction the Product is obtained. By ordering, accessing or using any Product, you represent and warrant that you are not located in any such country and are not included on any such list. Further you commit to not use any Product for any end uses prohibited under applicable United States laws and regulations, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application and any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America.
18. Exclusion of Warranties
To the maximum extent permitted by applicable law in the jurisdiction in which any Product is provided, the Appfire Entities and their third party suppliers provide the Products AS IS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, APPFIRE, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, APPFIRE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE. HARDWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE SECURE, TIMELY, UNINTERRUPTED, BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. APPFIRE 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 APPFIRE. 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.
If you purchase a Server license, and if the Server becomes, or in our opinion may become, the subject of a claim of infringement of any third party right, we may, at our sole option and discretion: (i) procure for you the right to use the Server free of any liability; (ii) replace or modify the Server to make it non-infringing; or (iii) refund any Fees paid by you for the current support period for that Server and terminate your license to use that Server going forward.
You will defend or settle and hold us harmless, at your expense, from any losses, liabilities, costs, or expenses (including reasonable attorneys’ fees) resulting from any action brought against us by a third party, including Secondary Users, arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Products in breach of this EULA, infringes or misappropriate the intellectual property rights of a third party or violates applicable law or. In conjunction with such indemnification we agree that (i) we shall notify you promptly in writing of any such claim; (ii) we shall not enter into any settlement or compromise any such claim without your prior written consent; (iii) you shall have control of any such action and settlement negotiations (although we will be entitled to participate in the defense of the claim with our own counsel at our own expense); and (iv) we shall provide you with reasonable information and assistance, at your request and expense, necessary to settle or defend such claim. You agree to pay all damages and costs finally awarded against us attributable to such claim.
20. Limitation of Liability
Except for the indemnification obligations of Section 19 or breach of Sections 4 or 5, neither Party will be liable to any person, with respect to any loss, damage, cost, expense or other claim, for any consequential (such as loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data), indirect, special, punitive or other damages in relation to the Products including: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in the Products); (b) any delay, interruption or other failure in the provision of a Product; or (c) any Product Update. All the foregoing limitations shall apply even if Licensor has been informed of the possibility of such damages. In no event will our aggregate liability under any claims arising out of or related to this EULA or your use of the Products exceed the Fees, if any, paid by you for the current Term under the applicable Order Form, except where not permitted by applicable law, in which case our liability shall be limited to the maximum extent permitted by such applicable law. Monetary damages as limited by this Section provide your sole remedy for any breach of this EULA by us, and your sole alternative remedy should any specific remedy hereunder be found to fail of its essential purpose.
21. Governing Law, Venue, and Notices
The Parties agree that this EULA will be governed by and construed and interpreted in accordance with the following:
If Customer is entering into this EULA from the UK or a European Union member country other than Germany, then this EULA is governed by the laws of Poland and the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of, and venue in, the courts in Warsaw, Poland. If Customer is entering into this EULA from Germany, then this EULA is governed by the laws of Germany and subject to the exclusive jurisdiction of the courts in Munich, Germany. Otherwise, this EULA shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules and any civil action or legal proceeding arising out of or relating to this EULA shall be brought in the courts of record of the Commonwealth of Massachusetts in Suffolk County or the United States District Court, Eastern District of Massachusetts.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this EULA.
Any notice under this EULA 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 post to Appfire Technologies, LLC, Attn: General Counsel, 1500 District Avenue, Burlington, MA 01803, with a copy to firstname.lastname@example.org. Your notices to us will be deemed given upon our receipt.
If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.
23. No Waiver
No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorized representative of the Party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
You will not assign or otherwise transfer this EULA or any of your rights and obligations under this EULA, without our prior written consent. Any assignment or transfer in violation of this Section will be void. Notwithstanding the foregoing, you may assign this EULA without our written consent (a) in connection with a merger, acquisition or sale of all or substantially all of your assets, or (b) to any Affiliate or as part of a corporate reorganization; provided that , (i) we are notified in writing within ninety (90) days of such assignment, and (ii) the assignee agrees to be bound by the terms and conditions contained in this EULA, including using the Products in accordance with the Scope of Use. We may assign our rights and obligations under this EULA without your consent. Subject to the foregoing, this EULA will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
25. U.S. Government Users
If the Products are being or have been acquired with U.S. Federal Government funds, or 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 or manuals is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995), as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software and Products with only those rights set forth in this EULA and any amendment hereto.
26. Revisions to EULA
Our industry moves quickly, so we may update, modify or amend (together, collectively, “revise” or a “revision”) this EULA or Product-Specific Terms 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, by sending an email to the billing or technical contact you designate and is included in the Order Form, posting on our blog, website, on the relevant Partner Marketplace website or within the Documentation. If we revise this EULA during the Term, the revised version will be effective upon the next Term or Maintenance term renewal. If you object to any revisions, your exclusive remedy is to cease using the Products at the end of the Term, including cancelling any Term set to auto-renew. With respect to No-Charge Products, accepting the revised EULA is required for you to continue using the No-Charge Products. You may be required to click through the updated EULA to indicate your acceptance. If you do not agree to the revised EULA after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order Form is subject to the version of the EULA in effect at the time of the order. You may not revise this EULA without our written agreement (which may be withheld in our complete discretion).
27. Entire Agreement
This EULA constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both Parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein. In the event of a conflict between the terms of this EULA and the terms of any open source licenses included with the Products, for the specific terms in conflict the terms of the open source licenses shall control with regard to the open source software included with the Products, and this EULA shall apply to the remainder of the Products, or part-thereof.
28. Rules of Interpretation
In interpreting this EULA, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a Party includes its personal representatives, successors or permitted assignees; (c) any phrase introduced by the terms “including,” “include,” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (d) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
29. Contact Information
For communications concerning this EULA, please use the following form: https://appfire.com/eula-contact/.