APPSTRATEGY LLC – END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS AGREEMENT) IS BETWEEN APPSTRATEGY AND YOU. THESE TERMS APPLY TO SOFTWARE DISTRIBUTED BY APPSTRATEGY LLC (LICENSOR) FOR ON-PREMISE USE. BY USING, ACCESSING, DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, APPSTRATEGY IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT INSTALL THE SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE UPON WHICH YOU DOWNLOAD THE SOFTWARE. IF YOU ARE A CHANNEL PARTNER, YOU AGREE TO BIND YOUR END CUSTOMERS TO TERMS SUBSTANTIALLY SIMILAR AND NO LESS RESTRICTIVE TO THOSE SET FORTH HEREIN. For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitutes you, your or Licensee and APPSTRATEGY, us, our or we refers to APPSTRATEGY LLC, 210 N. Marion Avenue, Lake City, Florida 32055, USA and its Affiliates, the owner and provider of the Software. Unless defined elsewhere in this Agreement, terms in initial capital letters have the meanings set forth in the section entitled Definitions.
(1) DEFINITIONS.
(A) Licensee means the end customer that has purchased the Software either directly from APPSTRATEGY or through a Channel Partner.
(B) Authorized User means one named person, employee, contractor or temporary worker authorized to use the Software for personal use or while performing duties within the scope of their employment or assignment.
(C) Affiliates means entities, regardless of corporate status, controlled by, controlling or under common control with a party, respectively, or officers, directors, shareholders, employees or agents of any of the foregoing.
(D) Channel Partner means an entity that APPSTRATEGY has authorized as a reseller, systems integrator or partner of the Software.
(E) Core means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-Production environment.
(F) Subscription means the business model whereby Licensee or Channel Partner, as applicable, pays APPSTRATEGY a fee for use of the Software for a specified term.
(G) Desktop/Workstation means a single physical machine, including but not limited to a personal computer, workstation, laptop computer, desktop computer or mobile device, specifically excluding a Server, on which the Software is loaded or executed, that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously.
(H) Instance means a loaded operating system running either on a physical computer or within a virtual environment. Each virtual environment on a physical computer is deemed an instance.
(I) Intellectual Property Rights means worldwide common law and statutory rights associated with (i) patents and patent applications; (ii) works of authorship, including mask work rights, copyrights, copyright applications, copyright registrations and moral rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) all rights to registered and common law trademarks, trade names, trade dress, and service marks; and (v) other proprietary rights relating to intangible intellectual property (including but not limited to designs, design rights, source codes, proprietary material, know-how, ideas, concepts, methods, techniques, rights in databases and all other intellectual property rights and rights of a similar character whether registered or capable of registration).
(J) Server means a physical or virtual machine, which may be limited by a certain number of Cores as set forth in an Order Form, which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access.
(K) Site means the single physical location that corresponds to a single physical mailing address, where your Developers are licensed to use the Software as designated in an Order Form.
(L) Software means the software and corresponding licenses as more particularly described in any associated guides and documentation provided by APPSTRATEGY hereunder.
(2) GRANT OF LICENSE.
In consideration of payment of the applicable license fee and subject to compliance with the terms and conditions of this EULA, APPSTRATEGY grants Licensee a non-exclusive, non-transferable, non-sublicensable right and license to use the Software,
(A) during the term of such license,
(B) within the scope of the License Type and Product Specific Requirements described herein,
(C) in a manner specified in the terms of this EULA and on the Order Form. Only object code, machine-readable versions of the Software are licensed to Licensee hereunder, and Licensee has no rights under this EULA to the source code versions of the Software. Licensee may use, reproduce and internally distribute the Software solely in connection with and as reasonably necessary for Licensee’s authorized use of the Software and for backup and archive purposes. Licensee may not make any other copies of the Software.
(3) RESTRICTIONS.
The license rights granted in this EULA are subject to the following general restrictions (except and only to the extent such restrictions are prohibited by applicable law) and any other restrictions herein:
(A) Licensee may not sell, license, sublicense, lend, rent, lease, or otherwise transfer the Software to a third party. Provided, however, Licensee may make the Software available to a third party to operate the Software on behalf of Licensee (such as a cloud provider), subject to the terms and conditions of this EULA, and provided that Licensee shall be fully liable for such third party’s compliance with the terms and conditions of this EULA. Licensee may not use the Software for time-sharing, outsourcing, service bureau, or managed service provider purposes, or otherwise make the Software available to third parties for their commercial purposes, unless expressly authorized in writing by APPSTRATEGY;
(B) Licensee acknowledges that the Software in source code form remains a confidential trade secret of APPSTRATEGY. Licensee may not reverse engineer, decipher, decompile, modify or disassemble the Software or otherwise attempt to derive the source code of the Software, embed the Software in whole or in part in any other software or product, or develop derivative works of the Software or allow others to do so, or to attempt to do any of the foregoing;
(C) Licensee may not use the Software to create products or services similar to, or competitive with, the Software; and (D) Licensee shall not disclose or publish the results of any performance, functional, or other evaluation or benchmarking of the Software to any third party without the prior written consent of APPSTRATEGY.
(3) OWNERSHIP.
The Software is licensed under the terms of this EULA, not sold. The Software and all authorized copies thereof, shall remain the exclusive property of APPSTRATEGY, and shall not be used in any way other than as allowed by this EULA, and shall not be disclosed to any third party. Licensee acknowledges that, as between APPSTRATEGY and Licensee, the Software and all Intellectual Property Rights with respect thereto, are and will at all times be the property of APPSTRATEGY, even if Feedback is incorporated into current or subsequent versions of the Software.
(4) CONFIDENTIALITY.
APPSTRATEGY and Licensee acknowledge that each party may have access to certain of the other party’s confidential and proprietary information in connection with the Software and this EULA (the Confidential Information). Each party will take all reasonable precautions necessary to safeguard Confidential Information, including those taken by such party to protect its own confidential information of a similar nature. Each party will use the other party’s Confidential Information solely to fulfill the purposes of this EULA. Neither party will have any confidentiality obligation with respect to any portion of the Confidential Information that (A) it independently develops without reference to the other party’s Confidential Information, (B) it lawfully obtains from a third party under no obligation of confidentiality or (C) becomes available to the public other than as a result of its act or omission.
(5) DATA PRIVACY AND SECURITY.
APPSTRATEGY does not have any access to Licensee data which is accessed and used as part of, or through your use of the Software, and therefore APPSTRATEGY is not considered a ‘processor’ and does not have obligations to Licensee under the European Union’s General Data Protection Regulation (EU/2016/679) (GDPR) or like privacy laws. Licensee will install and use the Software on premises and network environments under its control and as such Licensee is solely responsible for: (A) use of the Software, including without limitation, installation, deployment, and management of the Software; (B) use of the Software in compliance with all applicable laws; (C) ensuring the security of all data collected, processed, stored, and maintained using the Software; and (D) providing adequate notice and obtaining and maintaining valid consents from all of Licensee’s end users, as may be necessary under applicable law (including data protection or data processing laws and regulations), to process their personal data using the Software for Licensee’s intended purposes. Licensee agrees that upon installation the Software will automatically transmit to APPSTRATEGY telemetry information about the computing and network environment in which the Software is deployed including IP address and the data usage and system statistics of the deployment, but no personally identifiable information is transmitted to APPSTRATEGY.
(6) LIMITED WARRANTY AND DISCLAIMERS.
(6.1) Limited Warranty. APPSTRATEGY warrants that for a period of ninety (90) days from the Effective Date (Warranty Period) the Software will perform substantially in accordance with the then-current Documentation, provided that such Software is properly used by Licensee in accordance with such Documentation and this EULA. This limited warranty is VOID if failure of the Software is due to accident, negligence, abuse, improper installation or misuse of the Software.
(6.2) Remedies. APPSTRATEGY’s sole and exclusive liability and Licensee’s sole and exclusive remedy under this limited warranty shall be to use commercially reasonable efforts to repair or replace the Software to make the Software perform substantially in accordance with the accompanying Documentation. In the event APPSTRATEGY is unable to remedy the non-conformity and such non-conformity materially affects the functionality of the Software, Licensee may promptly terminate the license applicable to the non-conforming Software and return such Software and any applicable Documentation to APPSTRATEGY or Channel Partner, as applicable. In such event, Licensee will receive a refund of the license fee received by APPSTRATEGY with respect to such Software, less the value of use to date. The above remedy is available only if APPSTRATEGY or Channel Partner are promptly notified in writing within the Warranty Period. Any replacement Software will be warranted for the remainder of the original Warranty Period, or for thirty (30) days, whichever is longer.
(6.3) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS EULA, THE SOFTWARE IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, APPSTRATEGY (AND ITS LICENSORS) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. APPSTRATEGY DOES NOT WARRANT THAT THE SERVICES OR FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER APPSTRATEGY (NOR ITS LICENSORS) WARRANT OR MAKE ANY REPRESENTATIONS AND DISCLAIMS ALL LIABILITY REGARDING ANY LOSS OF DATA OR LOSS OF USE OF DATA (INCLUDING PERSONAL DATA), THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPSTRATEGY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S OR CHANNEL PARTNER’S JURISDICTION. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, APPSTRATEGY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
(7) LIMITATION OF LIABILITY.
APPSTRATEGY, ITS LICENSORS, AGENTS, AND SUPPLIERS SHALL NOT BE LIABLE WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA (INCLUDING PERSONAL DATA) OR LOSS OF USE, OR PROCUREMENT OF REPLACEMENT SOFTWARE, HOWEVER INCURRED BY THE LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF APPSTRATEGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AND CUMULATIVE LIABILITY OF APPSTRATEGY FOR DAMAGES UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE FOR THE AFFECTED SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO ANY LIABILITY.
(8) TERM AND TERMINATION OF LICENSE.
The term applicable to Licensee’s use of the Software shall be on a subscription basis subject to payment of the applicable subscription fees for each term. APPSTRATEGY reserves the right to terminate this EULA and Licensee’s corresponding right to use the Software in the event Licensee breaches a material obligation under this EULA and fails to cure such breach within thirty (30) days after APPSTRATEGY sends written notice describing the breach if such breach is capable of being cured, or immediately if the breach is not capable of being cured. Upon any termination of this EULA, or if Licensee should discontinue use of the Software or give up personal use and control of the computers or other hardware on which the Software is installed, Licensee shall destroy all copies of the Software and any related Documentation in any form. The Sections of this EULA which contemplate performance or observance subsequent to termination or expiration of this EULA, or which by their nature are intended to survive termination or expiration of this EULA shall so survive termination or expiration and continue in full force and effect.
(9) GENERAL.
(A) This Agreement, our Privacy Policy set forth at https://www.appstrategy.com/privacypolicy/ constitutes the entire agreement between the Parties with respect to the Software which supersedes any prior or contemporaneous understandings, oral or written, and all other communications between the parties. You acknowledge that you have not relied on the availability of any future version of the Software or any future product in executing this Agreement. Further, this Agreement may not be amended except by a writing signed by both parties. Any inconsistent terms on Purchase Orders or other documents or portals regarding the Software, Professional Services or Premium Support provided under this Agreement issued by you at any time, are for your internal use only, and any provisions contained in any such document shall have no effect whatsoever upon this Agreement. This Agreement may be executed via electronic signature.
(B) The Software may include third party software components (collectively, Third Party Dependencies) including programs that are available under either their own license, or an open source or free software license (each a Third Party License) and distributed, embedded or bundled with the Software or recommended in connection with the Software’s installation and use. Third Party Licenses are typically found in a readme file in the Software or accompanying the Software and/or hardware. This EULA does not alter any rights or obligations Licensee may have under Third Party Licenses. Third Party Dependencies are provided AS IS and notwithstanding anything to the contrary, the Disclaimer of Warranties and Limitation of Liability provisions of this EULA shall apply to Third Party Dependencies.
(C) A party is not liable for non-performance of obligations under this Agreement, if the non-performance is caused by events or conditions beyond that party’s control, and the party gives prompt notice and makes all reasonable efforts to perform. In no event will this provision affect a party’s obligation to make payments under this Agreement.
(D) All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. We can assign, novate or otherwise transfer Our rights and obligations under this Agreement to an Affiliate or incorporate an Affiliate as a party to this Agreement or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Our assets or voting securities or for bona fide restructuring purposes. You can assign this Agreement with Our prior knowledge and written consent.
(E) This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement shall be brought against any of the parties in the state or federal courts of Florida, USA. The application of Uniform Computer Information Transactions Act (UCITA), the Uniform Commercial Code (UCC) and the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
(F) The waiver or failure of a party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
(G) If you are a branch or agency of the U.S. Government, use, duplication or disclosure of the Software is subject to the restrictions set forth in this Agreement except that this Agreement shall be governed by federal law. Any additional rights or changes desired by the U.S. Government shall be negotiated with us consistent with this Agreement.
(H) Each party acknowledges its obligation to comply with all applicable laws, rules, statutes and regulations, including specifically but not limited to export laws including Bureau of Export Administration restrictions and anti-corruption legislation. Each party warrants that, to the best of its knowledge no money or other consideration of any kind paid or payable under this Agreement or by separate agreement is, has been or will be used for unlawful purposes, including purposes violating anti-corruption laws, including making or causing to be made payments to any employee of either party or anyone acting on their behalf to assist in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage.
Last Revised: January 17, 2023