Terms and Conditions

Paige Solutions Ltd., dba Appara

Last Updated: December 21, 2022

IMPORTANT: Carefully read these terms and conditions before using the Services (as defined below).

This Agreement creates a binding legal agreement between you (“Customer”) and Paige Solutions Ltd., dba Appara (“Appara”) regarding Customer’s use of the Services.

BY USING THE SERVICES, DOCUMENTATION OR ANY PORTION THEREOF, CUSTOMER HEREBY AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE SERVICES OR DOCUMENTATION IF IT DOES NOT ACCEPT THIS AGREEMENT. IF YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY, YOU MAY NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES OR DOCUMENTATION ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY.

Please read our privacy policy at https://appara.ai/privacy-policy, which separately determines how Appara collects, uses and discloses personal information in connection with the Services provided; however, that where personal data under this Agreement is processed and stored by Appara in the United States then the terms and conditions of Appara’s data protection addendum at https://appara.ai/dpa will apply to such personal data instead.

Appara may update this Agreement at any time, with reasonable notice to Customer, and Customer should review the current version of this Agreement from time to time at https://appara.ai/terms-conditions. Customer’s continued use of the Services after the reasonable notice period will be deemed irrevocable acceptance of any such revisions. Before you continue, you should print or save a local copy of this Agreement for your records.

The parties have caused this Agreement to be effective as of the Effective Date or, if you are a “Visitor” (meaning that you simply browse the Website) on the date you visit the Website.

DEFINITIONS. As used in this Agreement:
1. “Aggregated Statistics” means aggregated or anonymized data and analysis derived from System Data, but expressly excludes Customer Data.
2. “Agreement” means these Terms and Conditions and the Subscription Form incorporated by reference into this Agreement.
3. “Appara Customer Portal” means the online customer portal located at https://app.appara.ai, including any related or successor web site or pages.
4. “Appara System” means the technology, including hardware and software, used by Appara to deliver the Services to Customer in accordance with this Agreement.
5. “Appara Technology” is defined in Section 7.1.
6. “Claim” is defined in Section 11.2.
7. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Services, the Appara System or the Documentation and the terms of this Agreement.
8. “Credentials” is defined in Section 3.1.
9. “Customer Created Template” means a work of authorship that is the form of a template document independently created by the Customer using an Appara-provided document template in the Services, but expressly excludes the Appara-provided document, software and program code or the Services.
10. “Customer Data” means any data, information or information submitted by Customer and processed through the Services or provided by Customer to Appara as part of the Services, or information obtained from processing of information provided by Customer.
11. “Discloser” is defined in Section 5.1.
12. “Documentation” means the User materials provided by Appara regarding the Services, including training materials for Users.
13. “Effective Date” means the date of acceptance by Appara of the Customer’s Subscription Form for the Services.
14. “Fees” is defined in Section 4 hereof.
15. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
16. “Recipient” is defined in Section 5.1.
17. “Services” means the on-line service delivered by Appara to Customer using the Appara System, as made available by Appara from time-to-time as specified in a Subscription Form, including without limitation the use of Appara’s website.
18. “Subscription Form” means the subscribing documents representing the subscription to the Services (and any subsequent modifications) agreed to by Appara in writing that, upon confirmation by Appara are incorporated in and made a part of this Agreement.
19. “System Data” means information and data regarding the operation and functions of the Services, including but not limited to, data collected or generated about the performance, operation and use of the Appara System or Services including without limitation: services or system metadata, log data, device information, location information, cookie information, and data relating to third-party services but excludes Customer Data.
20. “Third Party Products” has the meaning given to it in Section 6.
21. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services on behalf of Customer and have been supplied user identifications and passwords for this purpose.
SERVICES
1. Subscription to the Services. Subject to Customer’s compliance with all of the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Appara will provide access to and use of the Services to Users in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Customer may not transfer or sub-license any access, use or permission to the Services. Only the agreement to the Subscription Form by Customer and by Appara constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality, features or services, or dependent upon any oral or written public comments made by Appara with respect to future functionality or features. Appara does not accept as customers competitive market players who offer any of the same or similar services as Appara, including, but not limited to, document automation and delivery, annual records compliance, and electronic sign-off and invoicing. Use of the Services for any activity that is competitive to Appara is prohibited and, without limitation to Appara’s other legal rights and remedies, may result in Appara terminating access to and use of the Services for the Customer and its Users.
2. Additional Users. Access to the Services cannot be shared with anyone other than a User for whom Customer has paid Fees. If Subscription is based on number of users, and Customer wishes to add additional Users, Customer will purchase subscriptions to the Services for such additional Users through a Subscription Form. Upon mutual agreement under the Subscription Form, Appara will make the Services available to the additional Users on the terms and conditions set forth in this Agreement and agreed to Subscription Form. Customer acknowledges and agrees that the number of Users cannot be decreased during the subscription term stated on the relevant Subscription Form. If the additional number of Users of the Customer increases above its then-currently subscribed-for number of Users identified in the Subscription Form (i.e., above the tier identified in the Subscription Form), the period in which the Users exceeded the then-currently subscribed for number and all following periods will be charged Fees, and Customer agrees to pay such Fees, commensurate with that higher number of Users in that tier.
3. Support Services. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Appara will use commercially reasonable efforts to (a) maintain the security of the Services using industry standard tools and practices as set out in Appara’s then-current security policy and provide, if performed, third party reporting on the information technology systems and practices of Appara; (b) provide support services in accordance with its support policy (“Support Services”); and (c) provide the Services in accordance with the service levels described in its service level policy. The Support Services and service level policies are described in the Appara Customer Portal.
4. Changes. Appara reserves the right, in its sole discretion, to make any changes to the Services and the Support Services at any time that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services, (ii) the competitive strength of or market for the Services, or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law. Appara will use reasonable efforts not to make changes to the Services and Support Services that materially remove features or functionality which were available on the effective date of the most current Subscription Form.
5. Trial Services. All of the other terms and conditions of this Agreement apply except to the extent inconsistent or contrary to the terms of this Section 2.5 where, notwithstanding any other provision of this Agreement to the contrary, including any Subscription Form, the following applies to any free, evaluation or trial Services made available for use by Appara (and no contrary or inconsistent provision will apply): (a) the period of access and use of such Services by Customer is solely at the discretion of Appara and may be suspended or terminated at any time without cost, charge or liability to Appara; (b) Appara may change and discontinue at its discretion any part of the Services and change or remove features or functionality of any part of the Services at any time without notice; (c) Appara may, but is under no obligation to, provide a non-trial version of the Service to Customer under different terms and conditions; (d) Appara reserves all rights to charge or charge additional amounts for use of such non-trial version of the Service; and (e) Appara does not guarantee any availability of such Service or that any problem or issue arising out of or related to such Service or its use will be addressed or resolved; (f) Appara may, but is not obligated, to (i) provide support at its discretion in accordance with then-current standard support policy for trial services made available on the Customer Portal; or (ii) make available additional features or functions, programming fixes, updates, upgrades or versions for the Service; (g) Appara may, in its sole discretion, suspend, terminate or limit any Customer access to or use of the Service, or any part of it, without notice for any reason and Appara will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service; and (h) IN NO EVENT WILL APPARA’s TOTAL LIABILITY FOR ANY AND ALL DAMAGES OF ANY KIND OF CLAIM IN AGGREGATE IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED $100.00 USD, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL; BUSINESS INTERRUPTION; OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF NOTIFIED IN ADVANCE OR REASONABLY FORESEEABLE, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. These limitations, rights or remedies do not limit any of Appara’s other rights or remedies.
CUSTOMER’S USE OF THE SERVICES
1. Access and Security Guidelines. Each User will be assigned a unique user identification name and password (“Credentials”) for access to and use of the Services. Customer will be responsible for ensuring the security and confidentiality of its Credentials. Credentials cannot be shared or used by more than one User. Customer will prevent unauthorized access to, or use of, the Services, and notify Appara promptly of any such unauthorized use. Customer will not use its access to the Services to: (a) harvest, collect, gather or assemble information or data regarding other Appara customers without their consent; (b) access or copy any data or information of other Appara customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (d) harass or interfere with another Appara customer’s use and enjoyment of the Services. At all times, Customer will comply with all applicable local, provincial, state, federal, and foreign laws in accessing and using the Services.
2. Customer Restrictions. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity or privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Appara may take remedial action (including suspension of Services or termination of this Agreement) if Customer Data violates this Section 3.2, however, Appara is under no obligation to review Customer Data for accuracy or potential liability.
3. Customer Responsibilities. Customer is responsible for (a) procuring and maintaining communication services, including high speed Internet, connections between Customer’s systems and the Appara System and Services, and will also be responsible for the technical requirements described in the Appara Customer Portal; (b) ensuring that the Services are used solely for Customer’s internal business purposes and in accordance with the Documentation; (c) ensuring Users comply with this Agreement; (d) obtaining all necessary consents for Appara to provide, use and copy Customer Data for the purpose of the Services and for creating Aggregated Statistics, and the exercise of Appara’s rights assigned via license pursuant to Section 7.2 below; (e) assigning, recording, and controlling the issuance of all Credentials; (f) using best efforts to prevent unauthorized access or use of the Appara Services; and (g) ensuring that Customer has all legal right, consent and authority to access any third party legal documents available through the Services, including, but not limited to, precedents if Customer chose to use the Services default precedents and will defend and indemnify Appara for any claim related thereto.
4. Use Restrictions. Customer is responsible for all activities that occur under Customer and User accounts. Customer will not, and will not attempt to, and will ensure that Users comply with the following: (a) make the Services available to anyone other than its Users; (b) reverse engineer, disassemble or decompile any component of the Appara System or Appara Technology; (c) interfere in any manner with the operation of the Services, or the Appara System, or Appara Technology or any other aspect of the Services; (d) sublicense or transfer any of Customer’s rights under this Agreement; (e) otherwise use the Services as a reseller or application service provider of such services, or otherwise use the Services for the benefit of a third party or to operate a service bureau; (f) modify, copy or make derivative or competitive works or services based on any part of the Services, or Appara Technology, or Appara Systems; (g) use the Services or Appara Technology, or Appara Systems to store, transmit, email, post or publish in any manner whatsoever any Customer Data or other material for any purpose that menaces or harasses any person, involves the publication of false, defamatory, or pornographic material, violates privacy rights, promotes racism, hatred or bigotry, constitutes spam mail or junk mail, infringes on the intellectual property of any third party, could reasonably be expected to harm Appara’s reputation or otherwise violates any laws; or (h) otherwise use the Services or Appara Technology, or Appara Systems in any manner that exceeds the scope of this Agreement.
  
  Without limiting the foregoing, if Appara, in its absolute discretion, forms the view that any Customer Data or any other information or files uploaded by Customer or any Users contains or includes any harmful or malicious code, content, files, scripts, agents or programs, including, but not limited to, viruses, malware, worms, time bombs and Trojan horses, or violates any of this Agreement, Appara may remove such data, information or files from the Services and take such other action as Appara deems necessary (including suspension of User’s or Customer’s access and use of the Services). Any costs associated with such removal are the responsibility of Customer and may be charged by Appara to Customer and payable by Customer upon invoice. Appara will notify Customer of such actions as soon as reasonably practical under the circumstances.
FEES, PAYMENT AND SUSPENSION OF SERVICES. As consideration for the subscription to the Services and the Support Services provided by Appara under this Agreement, Customer will pay Appara the fees (“Fees”) set forth in and in accordance with the Subscription Form and any subsequent Subscription Form that may be agreed to by Appara. Except as may otherwise be agreed to in a Subscription Form, all Fees will be billed on a monthly basis and will be due within thirty (30) days of receipt of invoice. Overdue amounts will accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less. Customer will reimburse Appara for all expenses (including reasonable attorneys’ fees) incurred by Appara to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Appara’s net income. Appara reserves the right (in addition to any other rights or remedies Appara may have) to discontinue the Services and suspend all Credentials and Customer’s access to the Services if any Fees are more than thirty (30) days overdue, until such amounts (and any other unpaid fees) are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
CONFIDENTIAL INFORMATION
1. Obligation. Each party that is a recipient (the “Recipient”) of Confidential Information of the other party (the “Discloser”) agrees (a) to hold the Discloser’s Confidential Information in strict confidence, (b) to limit access to the Discloser’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use or copy the Discloser’s Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the Recipient will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the Recipient gives the Discloser prior written notice of such disclosure in order to permit the Discloser to seek confidential treatment of such information.
2. Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the Recipient, (b) was in the Recipient’s lawful possession prior to the disclosure, as shown by the Recipient’s competent written records, (c) is independently developed by the Recipient without reference to the Discloser’s Confidential Information, as shown by the Recipient’s competent written records, or (d) is lawfully disclosed to the Recipient by a third party without restriction on disclosure.
3. Injunctive Relief. Customer acknowledges and agrees that, in the event of a breach or threatened breach of any of the provisions of this section 5, monetary damages will not be an adequate remedy for Appara and, accordingly, Appara will be entitled to injunctive relief against such breach or threatened breach; provided, however, that no specification of a particular legal or equitable remedy will be construed as a waiver, prohibition or limitation of any legal or equitable remedies in the event of a breach hereof.
THIRD PARTY PRODUCTS. Customer acknowledges and agrees that third party products, if any, which are provided with, interoperate with or incorporated as part of the Services (the “Third Party Products”) are additionally subject to the applicable flow-through provisions. Notwithstanding anything to the contrary in this Agreement, the use by Customer of Third Party Products is at all times subject to the terms and conditions of the Third Party Products’ agreements if made available to Customer. For certainty, if there is a conflict between this Agreement and any applicable Third Party Products’ agreements, the Third Party Products’ agreements terms shall take precedence. Appara makes no representation or warranties of any kind with respect to Third Party Products. In addition, in connection with certain features of the Services, including integrations to third party platforms, Customer may be required to agree to other terms and complete other third party forms. Customer shall comply with all applicable laws and regulations relating to such Third Party Products including without limitation any laws relating to privacy, export or use of third party information.
OWNERSHIP
1. Appara System and Technology. Customer acknowledges that Appara retains all right, title and interest in and to the Appara System, System Data, Intellectual Property Rights and all software, materials, formats, interfaces, information, data, content (including templates) and Appara proprietary information and technology used by Appara or provided to Customer in connection with the Services (the “Appara Technology”), and that the Appara Technology is protected by intellectual property rights owned by or licensed to Appara. Other than as expressly set forth in this Agreement, no license or other rights in the Appara Technology are granted to the Customer, and all such rights are hereby expressly reserved by Appara. Appara will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Services.
2. Customer Data. Customer retains all right, title and interest in and to the Customer Data. Appara will only use Customer Data to provide the Services and otherwise as expressly permitted under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Services. Customer hereby does and will grant to Appara a limited and non-exclusive license to access, use, display, reproduce and modify such Customer Data: (a) to provide, maintain, develop and update the Services; (b) to prevent or address service, security, support or technical issues relating to the Services; (c) to comply with applicable law; (d) create Aggregated Statistics; and (e) as expressly permitted under this Agreement. Appara will handle Customer Data in accordance with its then-current data retention and destruction policy. The Customer represents and warrants to Appara that it has all necessary rights from applicable third parties (including clients of the Customer) to use the Customer Data in connection with the Services and this Agreement. As outlined above, where a Customer is a consumer located in the United States, or in the case of a corporate entity operates out of the United States, Appara processes the Customer Data in accordance with the terms and conditions of its data processing addendum.
3. The Customer will own the copyright in and to the Customer Created Templates but notwithstanding any other provision of this Agreement, Customer does not own any right, title or interest, including any copyright, in any work of authorship, including any template provided by Appara as part of the Services. Nothing in this Agreement shall be construed to prevent or limit Appara or its other customers from independently creating the same or materially similar works of authorship as the Customer Created Templates.
TERM AND TERMINATION
1. Term. The initial term of this Agreement will commence on the Effective Date and continue until the expiration of the last Subscription Form between Appara and Customer, unless terminated earlier pursuant to Section 8.2 or 8.3 hereof. The Initial term is 1 year unless otherwise indicated on the Subscription Form. Services purchased by Customer commence on the start date specified in the applicable Subscription Form and automatically renew, unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the expiring subscription term. This Agreement will automatically renew for additional one-month terms unless a party gives the other party prior written notice of non-renewal within thirty (30) days prior to the expiration of the term of the Agreement. If the term of any Subscription Form is longer than the term of the Agreement, the terms and conditions of the Agreement will survive until the expiry of the term in the Subscription Form. Subject to the parties agreeing otherwise in writing, the Fees for any renewal period under this Agreement, a renewing Subscription Form or any new Subscription Form will be at Appara’s then-current prices (even for the same services).
2. Appara Termination. Appara may terminate this Agreement: (a) immediately without notice if Customer or any Users breach any of the terms or conditions set out in Section 2.1 or Section 3.4; (b) immediately without notice if Customer becomes subject to a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) in addition to (a) and (b), upon written notice if Customer materially breaches this Agreement and does not cure such breach (if curable) within thirty (30) days after receiving written notice of such breach; or (d) upon thirty (30) days’ written notice to Customer for any reason.
3. Customer Termination. Customer may terminate this Agreement: (a) upon written notice if Appara materially breaches this Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach; or (b) upon written notice if Appara becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Effect of Termination. Upon the termination of this Agreement Appara will cease immediately to provide access or use of the Services, and Customer will have no more than thirty (30) days from the effective date of termination to download any Customer Data (in a then-current industry standard format used by Appara) after which time Appara may delete such Customer Data. Upon termination of this Agreement for any other reason, no refunds will be provided to Customer and any amounts owed to Appara under this Agreement before such termination will become immediately due and payable.
5. Termination & Survival. Upon the termination of this Agreement, each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control. Appara agrees that upon any early termination of this Agreement, Appara will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Appara) for a reasonable time period after termination in accordance with Section 8.4. Thereafter, Appara may remove all Customer Data from the Appara System and all Customer access to or use of the Appara System and Services will be immediately suspended. Notwithstanding the foregoing, Appara will not be required to delete copies of Customer Data to the extent that it only exists in back-up media that is not generally accessible while it remains in that state and is deleted in accordance with Appara’s then current data retention and destruction policy. The rights and duties of the parties under Sections 3.2, 3.3, 3.4, 4, 5, 7, 8.4, 8.5, and 9 through 13 (inclusive) will survive the termination or expiration of this Agreement.
DOCUMENTATION & SERVICES. Appara will provide the Services in a manner so that they operate substantially as described in the Documentation. Customer’s sole remedy for any failure of the Services to meet the Documentation will be Appara using reasonable efforts to provide the Support Services described in Section 2.3 to remedy the Services to meet the Documentation. Appara is not responsible or liable to provide Support Services for: (a) issues arising by accident, abuse or use of the Services in a manner inconsistent with this Agreement or the Documentation, or resulting from events beyond Appara’s reasonable control; (b) issues arising from any third party services, service provider, software, application, hardware or services; (c) issues arising by the failure of Customer to have or meet minimum system requirements; and (d) issues arising from downtime or other interruptions in Customer’s access to the Services.
WARRANTY DISCLAIMER. OTHER THAN THE EXPRESS WARRANTY IN THE FOREGOING PARAGRAPH, APPARA MAKES NO WARRANTY CONCERNING THE APPARA SYSTEM OR SERVICES AND CUSTOMER ACKNOWLEDGES THAT APPARA’S SOLE OBLIGATION WITH REGARD TO THE SERVICES IS TO PROVIDE THE SUPPORT SERVICES DESCRIBED IN SECTION 2.3. ACCORDINGLY, THE SERVICES, THE APPARA SYSTEM, THE APPARA TECHNOLOGY AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY APPARA AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. APPARA AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IN ADDITION, CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY APPARA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, AND THIRD-PARTY SERVICE PROVIDERS WILL CONSTITUTE LEGAL, TAX OR FINANCIAL ADVICE. APPARA DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
INDEMNITY
1. By Customer. If any action is instituted by a third party against Appara (a) arising out of or relating to Customer’s use of the Appara System, the Appara Technology or Services (including claims by any customer or business partner of Customer); (b) Customer’s breach of any term, condition or warranty in this Agreement; (c) Customer’s installation of or use of any third party software or Third Party Products; (d) Customer’s use of the Services, including, but not limited to, in a way that contravenes any applicable law or regulation; or (e) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Appara and will pay all damages attributable to such claim which are finally awarded against Appara or paid in settlement of such claim.
2. Conditions. Appara will (a) promptly notify Customer of any third-party claim, suit, or action for which it is seeking an indemnity under Section 11.1 (a “Claim”), and (b) give Customer the sole control over the defense of such Claim (except that Appara may retain its own legal counsel at its own cost at its discretion). Customer may settle or compromise a Claim without Appara’s prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by Appara or its licensors of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against Appara or its licensors or any defense that Appara or licensors may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by Customer. Upon the Customer’s assumption of the defense of such Claim, Appara will cooperate with Customer in such defense, at Customer’s expense.
LIMITATION OF LIABILITY. Appara’s total cumulative liability to Customer for any and all claims arising from or in connection with this Agreement (under any legal theory including claims in contract or tort), the Services and the Appara System, will not exceed the amounts actually paid to Appara by Customer in the twelve (12) month period immediately preceding the Customer’s formal written notice of the claim for liability hereunder. All claims that Customer may have against Appara will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. In no event will Appara be liable for special, incidental, indirect or consequential damages arising out of or in connection with this agreement (under any legal theory including claims in contract or tort), including, but not limited to, interrupted Services or communications, lost data or lost profits, and damages that result from inconvenience, delay or loss of use of any information or data or of the Appara System or Services, even if Appara has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein.
GENERAL PROVISIONS
1. Publicity. Appara may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Appara to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Appara and a user of the Services.
2. Assignment. Customer may not assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of Appara. Customer agrees that Appara may subcontract certain aspects of the Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Appara of any of its obligations hereunder. Subject to the foregoing limitation, this Agreement will inure to the benefit of and will be binding on the successors and assignees of the parties.
3. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a court sitting in British Columbia, Canada, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except for applications for injunctive relief by Appara. If a dispute arising under this Agreement results in litigation, the non-prevailing party will pay the court costs and reasonable attorneys’ fees of the prevailing party.
4. Force Majeure. Appara is not responsible for delays in or failures to fulfill its obligations under this Agreement due to causes beyond its reasonable control including, by way of example, attacks and illegal acts by any third parties or delays or failures arising from natural disasters, war, riots, pandemics, conflicts, acts of terrorism, power outages or defects or malfunctions in networks, equipment or software.
5. Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address provided by Appara at the Appara Customer Portal and by the Customer on the Subscription Form (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via email, or (c) sent by recognized air courier service.
6. Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes and replaces any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
7. Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
8. Amendment. Appara reserves the right to make changes to this Agreement to reflect changes in or required by law or to reflect changes in business practices. Appara will provide notice of the effective date of such change to the Agreement which shall be the earlier of either (i) a reasonable notice period or (ii) upon renewal of the Agreement pursuant to Section 8.1.
9. Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.