Terms and Conditions
- 2. Trademarks. “AppFirst” and other related graphics, logos, service marks, and trade names used on the Site are the trademarks of AppFirst and may not be used without permission in connection with any third party products or services. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners.
- 3. Modification. AppFirst reserves the right, at any time, to modify the Site Content or to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that AppFirst will not be liable to you or to any third party for any modification of the Site Content or modification, suspension, or discontinuance of the Site.
- 4. Feedback. AppFirst will treat any feedback or suggestions you provide to AppFirst as non-confidential and non-proprietary. Thus, in the absence of a written agreement with AppFirst to the contrary, you agree that you will not submit to AppFirst any information or ideas that you consider to be confidential or proprietary.
- 5. Member Account, Password, and Security. If any of the services require you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify AppFirst immediately of any unauthorized use of your account or any other breach of security. AppFirst will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by AppFirst or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
- 1. upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- 2. use the Site, or other activities to “stalk” or otherwise harass or harm another;
- 3. impersonate any person or entity, including, but not limited to, an AppFirst official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity or collect or store personal data about other users in connection with the prohibited conduct and activities;
- 4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site;
- 5. upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- 6. upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party; upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- 7. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- 8. you may not use the Site in any manner that could damage, disable, overburden, or impair any AppFirst server, or network(s) connections, disobey any requirements, procedures, policies or regulations of networks connected to the Site or interfere with any other party’s use and enjoyment of the Site;
- 9. you may not attempt to gain unauthorized access to the Site, other accounts, computer systems or networks connected to any AppFirst server, through hacking, password mining or any other means or obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site;
- 10. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law; and/or
- 11. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
- 8. Third Party Links. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of AppFirst. AppFirst is not responsible for the content of any third party web site or any link contained in a third party web site. AppFirst provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites. If you decide to access any of the third party sites linked to the Site, you do this entirely at your own risk.
- 9. Warranty Disclaimer. APPFIRST IS PROVIDING THE SITE AND THE SITE CONTENT ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. APPFIRST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND QUIET ENJOYMENT. APPFIRST DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE SITE CONTENT OR THE INFORMATION PROVIDED ON THE SITE. INFORMATION AT THE SITE MAY NOT BE CURRENT AT THE MOMENT YOU VISIT THE SITE AND MAY CONTAIN ERRORS.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF THE SITE CONTENT, OR ANY CHANGES APPFIRST MAY MAKE TO THE SITE, SITE CONTENT OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SITE (OR ANY FEATURES WITHIN THE SITE); OR IF APPLICABLE, YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; THESE LIMITATIONS ON APPFIRST’S LIABILITY SHALL APPLY WHETHER OR NOT APPFIRST HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES.
- 12. Accuracy and Completeness: AppFirst does not warrant the accuracy or completeness of the Site Content information, text, graphics, links or other items contained within the Site.
- 13. Content Related Notices a. Ownership: You acknowledge and agree that AppFirst owns all legal rights, title and interest in and to the Site Content and Site, including any AppFirst trade names, trademarks, service marks, logos, domain names, and other distinctive brand features therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist), and that they are protected by worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any way without AppFirst’s prior written permission. Except as expressly provided herein, AppFirst does not grant any express or implied right to you under any patents, copyrights, trademarks, or trade secret information.
- 14. Notice Specific to AppFirst Software Any AppFirst software that is made available to download from the Site (“Software”) is the copyrighted work of AppFirst and/or its suppliers. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). An end user will be unable to install any Software that is accompanied by or includes a License Agreement, unless he or she first agrees to the License Agreement terms. The Software is made available for download solely for use by end users according to the License Agreement. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE LICENSE AGREEMENT, APPFIRST HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE, INCLUDING ALL WARRANTIES , WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- 15. User Content Submissions a. Definition: User content submissions may include but not limited to, may include user registration, participation, public sharing, posting, uploading, linking, downloading, and transferring, viewing, blogging, commenting, chat room, bulletin board and forum participation, or submitting or transmitting content, including, but not limited to graphics, art, software, code, data, text, video, audio, text, opinions, descriptions etc. (the “User Content”) on the Site.
- b. Non-Endorsement: AppFirst does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and AppFirst expressly disclaims any and all liability in connection with User Content submissions. AppFirst does not permit copyright infringing activities and infringement of intellectual property rights on the Site, and AppFirst will remove User Content if properly notified that such submission infringes on another’s intellectual property rights in accordance with the DMCA provisions. AppFirst reserves the right to remove User Content at its sole discretion and without prior notice.
- c. Ownership: AppFirst does not claim ownership of any User Content submitted, posted, transmitted, made available or displayed on, or through, the Site, including, but not limited to, data, text, sound, images, videos, diagrams, software, code, audio, information, graphs, or descriptions on the Site. Unless otherwise agreed to in writing, there is no compensation for User Content. AppFirst is under no obligation to post or use any User Content submitted. Unless otherwise agreed in writing with an authorized AppFirst representative, any material, information or other communication you transmit or post to the Site will be considered non-confidential and non-proprietary.
- d. License: Unless other specified on the Site or activity terms and conditions, by posting, displaying, uploading, inputting, providing or submitting such user content you grant AppFirst, necessary sub-licensees and web site users, a perpetual, irrevocable and fully sub-licensable worldwide, royalty-free and non-exclusive license, to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display the User Content (in whole or in part) and to incorporate such User Content into other works in any format or medium now known or later developed for any and all commercial or non-commercial purposes.
If you have any questions about the foregoing, please contact us at the following e-mail address: firstname.lastname@example.org.
Types of Data We Collect
Personal Data You Provide to Us
We collect Personal Data from you, such as first and last name, e-mail and mailing addresses, telephone number, professional title, company name, and password, when you purchase Products, register to receive information, or register for support forums. In addition, we (or our third-party credit card or payment processor on our behalf) will collect Personal Data including your credit card number or account information when you purchase Products or services on our website. We also retain information on your behalf, such as the Personal Data described above and any correspondence or forum postings. If you provide us feedback or contact us via e-mail (e.g., in response to an employment opportunity posted on our website), we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply, and any information that you submit to us, such as a resume. When you participate in one of our surveys, we may collect additional profile information. When you post messages on the message boards of our website, the information contained in your posting will be stored on our servers and other users will be able to see it. We also collect other types of Personal Data that you provide to us voluntarily, such as operating system and version, information about your application and operating environment, and other requested information if you contact us via e-mail regarding support for the Products. We may also collect Personal Data at other points in our website that state that Personal Data is being collected.
Personal Data Collected via Technology
Use of Your Personal Data
In general, Personal Data you submit to us is used either to respond to requests that you make, or to aid us in serving you better. AppFirst uses your Personal Data in the following ways: to facilitate the creation of and secure your account on our network; identify you as a user in our system; provide improved administration of our website, Products, and related services; improve the quality of experience when you interact with our website, Products, and related services; send you a welcome e-mail to verify ownership of the e-mail address provided when your account was created; send you administrative e-mail notifications, such as security or support and maintenance advisories; respond to your inquiries or other requests; send promotional communications; provide you with hardcopy or electronic newsletters, or surveys; send upgrades and special offers related to our Products and related services and for other marketing purposes of AppFirst or AppFirst partners; make telephone calls to you, from time to time, as a part of secondary fraud protection or to solicit your feedback.
We may create Anonymous Data records from Personal Data by excluding information (such as your name) that make the data not personally identifiable to you. We use this Anonymous Data to analyze request and usage patterns so that we may enhance the content of our Products and services and improve site navigation. AppFirst reserves the right to use for other purposes and to disclose Anonymous Data to third parties in its discretion.
Disclosure of Your Personal Data
We may share your Personal Data with third parties to provide technical support or to provide specific services, such as hosting of your applications or payment processing for purchases. We may enter into agreements with an AppFirst partner. An AppFirst partner may want access to Personal Data that we collect from our customers. As a result, we may provide your Personal Data to an AppFirst partner. Because we do not control the privacy practices of our AppFirst partners, you should read and understand their privacy policie
Regardless of any choices you make regarding your Personal Data (as described below), AppFirst may disclose Personal Data if it believes in good faith that such disclosure is necessary to (a) comply with relevant laws or to respond to subpoenas or warrants served on AppFirst; or (b) protect or defend the rights or property of AppFirst or users of the Products or related services.
Except as otherwise stated in this policy, we do not generally sell, trade, share, or rent the Personal Data collected from our services to third parties. You expressly consent to the sharing of your Personal Data as described in this policy.
Your Choices Regarding Your Personal Data
You may change any of your Personal Data in your account by editing your profile within the registration portion of our website or by sending an e-mail to us at the e-mail address set forth below. You may request deletion of your account information by us, but please note that we may be required (by law or otherwise) to keep this information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete account information, it will be deleted from the active database, but may remain in our archives.
Types of Application Data We Collect
AppFirst collects Application Data when our Products are deployed in your applications. “Application Data” means data about the performance of your application, system data (such as version data, names of processes, etc.) about the environment in which your application is operating, data about network connections in your application (“Transaction Data”), stack sizes, and other similar data related to your application.
Use of Your Application Data
Application Data we collect is primarily used to display application performance information back to the account user. It is also used by AppFirst personnel to answer questions that customers may have about their account and to develop and improve our products. AppFirst may also aggregate Application Data across multiple accounts and use this data to create and publish industry benchmarks or comparative application performance metrics. You also have the option of disabling collection of certain types of Application Data collected through our Products and services, which you may exercise by following the instructions in the user manual for the applicable Product or service.
Disclosure of Your Application Data
We may share your Application Data with third parties to provide technical support or to provide specific services, such as hosting of your applications.
We may enter into agreements with an AppFirst partner such as hosting companies or other services providers. An AppFirst partner may want access to Application Data that we collect from its customers. As a result, we may provide your Application Data to an AppFirst partner on a confidential basis in order assist an AppFirst partner in providing customer support. Because we do not control the privacy practices of our AppFirst partners, you should read and understand their privacy policies.
AppFirst may disclose Application Data if it believes in good faith that such disclosure is necessary to (a) comply with relevant laws or to respond to subpoenas or warrants served on AppFirst; or (b) protect or defend the rights or property of AppFirst or users of the Products or related services.
Except as otherwise stated in this policy, we do not generally disclose the Application Data collected from our services to third parties without consent from you. You expressly consent to the sharing of your Application Data as described in this policy.
Security of Your Application and Personal Data
AppFirst is committed to protecting the security of your Application Data and Personal Data. We use a variety of industry-standard security technologies and procedures to help protect your Application Data and Personal Data from unauthorized access, use, or disclosure. We also require you to enter a password to access your account information. Please do not disclose your account password to unauthorized people. Despite these measures, you should know that AppFirst cannot fully eliminate security risks associated with Application Data and Personal Data and mistakes and security breaches may happen.
The AppFirst site uses “cookies” to enable you to sign in to our services and to help personalize your online experience. A cookie is a small text file that is placed on your hard disk by a Web page server. Cookies contain information that can later be read by a Web server in the domain that issued the cookie to you. Cookies cannot be used to run programs or deliver viruses to your computer.
One of the primary purposes of cookies is to store your preferences and other information on your computer in order to save you time by eliminating the need to repeatedly enter the same information and to display your personalized content and appropriate advertising on your later visits to the site.
You have the ability to accept or decline cookies. Most Web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to sign in or use other interactive features of the AppFirst site and services that depend on cookies, and some advertising preferences that are dependent on cookies may not be able to be respected.
If you choose to accept cookies, you also have the ability to later delete cookies that you have accepted. In Internet Explorer 7, you can delete cookies by selecting “Tools”, “Delete browsing history” and clicking the “Delete Cookies” button. If you choose to delete cookies, any settings and preferences controlled by those cookies, including advertising preferences, will be deleted and may need to be recreated.
Use of Web Beacons
AppFirst pages may contain electronic images known as Web beacons – sometimes called single-pixel gifs – that may be used to assist in delivering cookies on the site and allow us to count users who have visited those pages and to deliver co-branded services. We may include Web beacons in promotional e-mail messages or our newsletters in order to determine whether messages have been opened and acted upon.
AppFirst may also employ Web beacons from third parties in order to help us compile aggregated statistics regarding the effectiveness of our promotional campaigns or other operations of the site. We prohibit Web beacons on the site from being used by third parties to collect or access your personal information.
Finally, we may work with other companies that advertise on the site to place Web beacons on their sites in order to allow us to develop statistics on how often clicking on an advertisement on the site results in a purchase or other action on the advertiser’s site.
Collection and Use of Children’s Personal Information
The AppFirst site and service are intended for general audiences and do not knowingly collect any personal information from children. When the AppFirst site does collect age information, and users identify themselves as under 13, the site will either block such users from providing personal information, or will seek to obtain consent from parents for the collection, use and sharing of their children’s personal information. We will not knowingly ask children under the age of 13 to provide any information.
Limitation of Warranty
While we attempt to ensure the accuracy of the information displayed on the site, the correctness, completeness or accuracy of such information is not warranted and is provided “AS IS”. We disclaim any and all express or implied warranties with respect to any products sold on the site, including the warranties of merchantability and fitness for a particular purpose.
Limitation of Liability
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR ANY OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS POLICY OR USE OF THE SITE.
Attn: Legal Department
6 W 14th St, Suite 4E
New York, NY 10011
End User License Agreement
- Grant of License. AppFirst hereby grants to Licensee, and Licensee hereby accepts, a limited, nonexclusive license to use AppFirst’s proprietary software (the “Software”) in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by AppFirst and made available to end-users. Notwithstanding the foregoing, AppFirst shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
- Assignment of Rights. Licensee will not sublicense, lease, rent, or lend its rights in the Software or Documentation, as granted by this Agreement, to any party without prior written consent of AppFirst.
2. Hosting and Availability of Software
- Hosting. AppFirst will provide its application-based servers to host, manage and maintain the Software on behalf of Licensee. The Software shall be installed and maintained by AppFirst on servers and shall provide Licensee encrypted and/or password protected access to the Software via the Internet for purposes of using the Software. AppFirst will use commercially reasonable efforts to ensure that the servers will be adequate at all times to provide necessary levels of access and service. AppFirst reserves the right to utilize the services of a third–party hosting service provider for the managing and provision of the servers.
- Availability. AppFirst shall use commercially reasonable efforts to ensure that the Software is accessible via the Internet 24 hours a day, 7 days a week, 365 days a year. AppFirst shall not be in breach of the foregoing obligation if unavailability is the result of (i) factors not within its control (such as the volume of traffic on the Internet, interruption in or failure of telecommunication or digital transmission links, hostile network attacks or other failures, force majeure, or otherwise), (ii) maintenance to the Software, or (iii) Licensee’s equipment malfunctions.
3. Intellectual Property
- Proprietary Rights. Licensee acknowledges that the Software and the Documentation are proprietary to AppFirst, and the Software and Documentation are protected under United States copyright law and international treaties. Licensee further acknowledges and agrees that, as between Licensee and AppFirst, AppFirst owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Licensee any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that AppFirst uses in connection with the Software or with services rendered by AppFirst are marks owned by AppFirst. This Agreement does not grant Licensee any right, license, or interest in such marks, and Licensee shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks. AppFirst acknowledges that any data supplied by Licensee shall be owned by Licensee and that AppFirst shall assert no rights thereto. All rights in any Application Data (as defined below) generated by the Software shall belong to AppFirst. For purposes of this Agreement, “Application Data” shall mean data related to the performance of your applications, system data (such as version data, names of processes, etc.) about the environment in which your applications are operating, data about network connections, stack sizes and other similar data related to your applications.
- Limitations. AppFirst shall retain all right, title and interest in and to its data used in connection with the Application Data, along with all right, title, and interests under copyright, trademark, patent and trade secret laws, associated with the foregoing, and no title to or ownership of any of the foregoing is transferred to Licensee, except as expressly set forth in this Agreement.
- Application Data Ownership. Licensee may not, unless expressly stated otherwise by AppFirst in writing: (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software; (ii) place the Software onto a server so that it is accessible via a public network, or (iii) test the Software or use the Software in connection with any benchmark tests, evaluation, comparisons or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without AppFirst’s prior written approval.
- Technical Support. Unless Licensee has contracted separately for additional levels of technical support, AppFirst shall provide technical support via e-mail. An AppFirst representative shall respond to any such support request within the time frame set forth in the AppFirst Maintenance Section of the Website.
- Confidentiality. AppFirst agrees not to disclose, and keep confidential, any personal data of the Licensee to any third parties except upon the written consent of Licensee. However, AppFirst may disclose personal data in accordance with judicial or other governmental order; provided that AppFirst provides Licensee with reasonable notice prior to such disclosure. Furthermore, AppFirst is under no restrictions if the personal data becomes publicly available through no fault of AppFirst.
4. License Fees
- Fees. Licensee agrees to be bound by and pay the license fee(s) agreed to by the parties set forth on in the Pricing Schedule Section of the Website.
- Invoicing and Payments. AppFirst shall invoice Licensee for the license fees and expenses associated with the Software, on a monthly basis and all invoiced amounts shall be payable within thirty (30) days from the date of invoice. If Licensee fails to pay any invoice within thirty (30) days of the invoice date, Licensee shall be obligated to pay, in addition to the amount due, interest on such amount at the prime rate announced in the Wall Street Journal (as of the applicable due date) plus one percent (1%), compounded monthly from the relevant invoice due date through the date of payment.
5. Term and Termination
- Term. The term of this Agreement shall be for the term Licensee selected when executing this Agreement to license the Software, unless sooner terminated pursuant to Section 5.3.
- Renewal. This Agreement shall automatically renew for additional terms based on the type of term Licensee selected above, unless Licensee notifies AppFirst in writing that it elects to terminate this Agreement upon the expiration of the then current term.
- Termination. This Agreement may be terminated by any party in the event of a breach of this Agreement which is not remedied within fifteen (15) days of written notice of same.
- Effect of Termination. Upon termination of this Agreement, AppFirst shall terminate Licensee’s access to and use of the Software.
Licensee will, at its own expense, indemnify and hold AppFirst, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by Licensee, any party related to Licensee, or any party acting upon Licensee’s authorization in a manner that is not expressly authorized by this Agreement.
7. Warranties; Disclaimer
- Limitation of Warranty. AppFirst warrants that the Software shall operate substantially in accordance with the functional specifications in the Documentation. AppFirst’s sole liability for any breach of this warranty shall be, in AppFirst’s sole discretion: (i) to replace or repair the defective Software; or (ii) to refund the prorata price paid by Licensee for the Software. Licensee must inform AppFirst in writing of the problem with the Software.
- Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE AND THE DOCUMENTATION ARE LICENSED "AS IS”, AND APPFIRST DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. If any modifications are made to the Software by Licensee, or if Licensee violates the terms of this Agreement, then the warranty shall immediately be terminated. The warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation.
8. Limitation of Liability
AppFirst’s cumulative liability to Licensee or any other party for any loss or damages resulting form any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to AppFirst for the use of the Software. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL APPFIRST OR ITS SUPPLIERS OR RESELLERS OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, DAMAGES FOR PERSONAL INJURY OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL APPFIRST BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT APPFIRST RECEIVED FROM LICENSEE FOR A LICENSE TO THE SOFTWARE, EVEN IF APPFIRST SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
9. General Terms
- Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated within New York. To the maximum extent permitted by law, Licensee hereby consents to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.
- Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
- Survival. Sections 3, 5, 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.
- Headings. The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
- No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Taxes. Licensee shall, in addition to the fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of AppFirst. Licensee shall reimburse AppFirst for the amount of any such taxes or duties paid or incurred directly by AppFirst as a result of this transaction.
- Assignment. Neither party may assign its rights under this Agreement without the express written consent of the other party provided, however, that either party may assign this Agreement to a purchaser of all or substantially all of the assets of the party.
- Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all prior written or oral agreements. This Agreement may not be amended or altered except in writing signed by both parties.
- Publicity. Licensee hereby grants AppFirst a nonexclusive, worldwide, royalty-free, nontransferable right to use the Licensee’s marks (as defined below), during the term of this Agreement, in presentations, marketing materials and Website listings of clients. Licensee shall, at all times, own the trademarks, service marks or logo adopted by Licensee (“Licensee Marks”). AppFirst’s use of the Licensee’s Marks will not create any right, title or interest therein or thereto in AppFirst.
10. Storage and Security
AppFirst shall use commercially reasonable efforts to secure the protection of Licensee’s data from loss or destruction. AppFirst shall undertake and perform commercially reasonable efforts to ensure the security, confidentiality, and integrity of all Licensee data transmitted through or stored on the hosting servers.
11. United States Government Restricted Rights
The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.