APPLIANCE.IO SUBSCRIPTION AGREEMENT
The Appliance.io Subscription Agreement (“Agreement”) is entered into on the Effective Date between Client and Appliance, Inc. (“Appliance.io”). This Agreement includes all terms set forth herein and any terms in a fully executed Subscription Order Form (defined below) that incorporates this Agreement and is attached.
By clicking “I agree”, subscribing to the Appliance.io SAAS (defined below) or accessing or using the Appliance.io SAAS you agree to be bound by this Agreement and the Privacy Policy. We may amend our Agreement or the Privacy Policy and may notify you when we do so. If you do not agree with any changes, please cease using our Platform immediately.
1. Definitions. Capitalized terms in the Agreement are as follows:
“Client” means the client as identified within the Subscription Order Form
“Client Content” means any and all client content, data, customer information, content, notes, information, or other materials submitted, inputted, interfacing, or used within the Appliance.io SAAS by Client or its Authorized Users.
“Documentation” means the content and materials describing the operation of the Appliance.io SAAS and any associated features that are made available to Client via Appliance.io’s website, which may be updated from time to time.
“Fees” any fees or expenses as set forth within the Subscription Order Form.
“Intellectual Property Rights” means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
“Appliance.io SAAS” means the Appliance.io branded software as a service known as Appliance.io or otherwise as identified used to assist Client in selling appliances or other products and any associated Documentation (defined below), data, code, and other materials made available by Appliance.io as generally described on the Appliance.io website. The Appliance.io SAAS does not include any software development services or professional services.
“Party” and/or “Parties” mean Appliance.io or Client in the singular, and Appliance.io and Client in the plural.
“Subscription” means Client’s subscription plan to access the Appliance.io SAAS which is more fully described in the Subscription Order Form.
“Subscription Order Form” means the subscription order form which sets forth Client’s subscription details to the Appliance.io SAAS or where Client has purchased the Subscription online the online checkout page with Client’s payment and subscription details shall be considered the “Subscription Order Form”.
“Support” means any support services offered to Client for Appliance.io SAAS subject to this Agreement.
“Third Party Software” means software that is owned and controlled by a third party that may be required as a separately purchase, prior to Client accessing the Appliance.io SAAS.
2. Appliance.io SAAS Subscription
2.1 Appliance.io SAAS Subscription. Appliance.io provides the Appliance.io SAAS as a subscription and is ordered through the Subscription Order Form. Subject to the terms and conditions of this Agreement and the Subscription Order Form and upon timely payment of any Subscription Fees (defined below), Appliance.io shall make available the Appliance.io SAAS to Client in accordance with this Agreement. Where any portions of the Appliance.io SAAS are downloaded, Appliance.io grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable, non-assignable, terminable, limited license to use the Appliance.io SAAS for the duration of the Subscription. Where the Appliance.io SAAS is remotely accessed Appliance.io grants to Client a worldwide non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right to access and use the Appliance.io SAAS. Client’s use of the Appliance.io SAAS may only be for its own internal commercial purposes. During Client’s Subscription, Appliance.io may make updates, modifications, alterations, changes, or removals to the Appliance.io SAAS and may update the functionality, user interface, usability, Documentation associated, other documentation, training and educational information of, and relating to the Appliance.io SAAS from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates Appliance.io to offer any previously offered functionality within any updated version of the Appliance.io SAAS. In the event Client’s use of the Appliance.io SAAS for processing Client Content exceeds Appliance.io SAAS processing limits as further described in the Documentation or Appliance.io’s internal policies, Appliance.io reserves the right to charge the Client for such increased data volume capacity and shall provide Client notice of such charges in writing.
2.2 Third Party Software. The Appliance.io SAAS does not include, and Appliance.io does not warrant, software obtained from any source other than Appliance.io including any Third Party Software, code, data, or other materials provided by Client or a third party. The use of the Third Party Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Client and the Third Party Software provider. Additionally, Client agrees that: (a) it shall abide by all Third Party Software agreements when using the Appliance.io SAAS; (b) Client’s use of the Appliance.io SAAS shall not interfere with the Third Party Software; (c) all agreements between Client and the Third Party Software provider are solely between Client and the Third Party Software provider and Appliance.io is not a party to any such agreements; and (d) Client shall indemnify Appliance.io for any claims against Appliance.io by the Third Party Software provider caused by Client’s use of the Appliance.io SAAS in conjunction with the Third Party Software.
2.3 Client Requirements. Client shall be exclusively responsible for supervision, management and control of its use of the Appliance.io SAAS, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering or reentering Client Content; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, any Subscription Order Form, or other guidelines or instructions issued by Appliance.io; (e) complying with all reasonable instructions from Appliance.io regarding the Appliance.io SAAS; and (f) restricting access to any third parties that are not authorized to access the Appliance.io SAAS under this Agreement. Each Client and each of Client’s Authorized Users must also enter into the Appliance.io User Agreement (“User Agreement”) that governs Client’s use of the Appliance.io SAAS, where offered and applicable.
2.4 Subscription Change. Where Client wishes to change the scope of its Subscription, the Parties may execute a new Subscription Order Form as required by Appliance.io. Where a new Subscription Order Form is required, at the discretion of Appliance.io, such Subscription Order Form must be executed and agreed upon by both Parties to become effective. Where a new Subscription Order Form is executed, Appliance.io shall have no obligation to offer any Subscription to the Appliance.io SAAS at any pricing previously offered to Client.
2.5 Authorized Users. Client shall be responsible for and solely liable for any authorized user’s use of the Appliance.io SAAS, however permitted by Client (each user associated with the Client that has access to the Appliance.io SAAS including any customers of Client shall be referred to as an “Authorized User”), whether such use is permitted or unpermitted. Client shall ensure that each Authorized User abides by all obligations of this Agreement and where applicable shall ensure such Authorized User enters into the User Agreement and abides by all terms of that User Agreement. Client is responsible for ensuring that all Authorized Users maintain the confidentiality and security of the Authorized User’s account. Client is solely liable for all activities of its Authorized Users. Any references to Client in this Agreement include Client’s Authorized Users. Appliance.io reserves the right to reject or suspend any Authorized Users at Appliance.io’s discretion.
2.6 Website. Through the Appliance.io SAAS, Appliance.io may offer Client the use of a Client branded website. Such Client website is offered on an as-is basis and is not customizable. Any customization of Client’s website must be requested by Client and may be subject to additional fees. Appliance.io has no obligation to provide any customization services (whether for the Client website or otherwise) and may reject any such requests. Client shall be responsible for providing any Client branded images, logos, identification, or marks (“Client Identification”) to be used for the website and Client shall provide Appliance.io a royalty free, assignable, sub-licensable license to use the Client Identification for the purposes of making the Client website available for the general public.
3. Payment and Pricing
3.1. Fees. Client shall pay all Fees as specified in any Subscription Order Form, all Subscription Fees are pre-paid. Any Fees shall be invoiced to Client from time to time. Where the due date is not otherwise specified in the Subscription Order Form, all Fees are due upon issuance. All Fees are non-refundable. Unless otherwise specified, all Fees are in U.S. dollars. Client shall pay the Fees to Appliance.io in a method agreed upon between the Parties or as set forth within the Subscription Order Form. Failure by Client to pay any Fees in a timely manner may result in the immediate termination or suspension of Subscriber’s access to the Appliance.io SAAS.
3.2 Taxes. Client is responsible for any duties, customs fees, or taxes (other than Appliance. Io’s income tax) associated with the purchase of the Appliance.io SAAS provided by Appliance.io, (including any related penalties or interest) (“Taxes”), and shall pay the listed Fees without deduction for Taxes.
3.3 Fee Increase. Prior to any term renewal as set forth within a Subscription Order Form, Appliance.io may provide Client written notice that the Fees paid for the Appliance.io SAAS may increase prior to the commencement of the new term. Where Appliance.io provides such a notice of a fee increase, Client may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Client does not provide written notice of termination such Fee increase shall be deemed accepted by Client at the commencement of the new term.
3.4 Delinquencies. Any late payments by Client may accrue interest charges (such charges, “Interest Charges”) in accordance with our billing practices. Client shall pay to Appliance.io any Interest Charges as invoiced by Appliance.io. Where Client fails to timely pay any invoices, Appliance.io may at its discretion suspend its provision of Appliance.io SAAS to Client until such invoice is paid. In addition, Client will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.
3.5 Additional Headcount. The Subscription may be offered on a per location basis. Where the Subscription is offered on a per location basis, Client may increase the number of licenses purchased at any time by providing notice to Appliance.io. Any Fees related to an increase in licenses shall be prorated for the Term.
3.6 Refunds and Free Trials. Any refund requests shall be granted at the sole discretion of Appliance.io. Appliance.io may offer free trials of the Appliance.io SAAS, at its discretion, nothing within this Agreement obligates Appliance.io to offer any free trials and Appliance.io may discontinue its free trial offerings at any time.
4. Restrictions and Suspension
4.1 Where applicable, all rights in the Appliance.io SAAS not expressly granted under this Agreement are reserved to Appliance.io or its licensors. Without limiting the foregoing, Client shall not, and shall not permit others under its control to (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Appliance.io SAAS or any component thereof; (b) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Appliance.io SAAS to any third party; (c) use the Appliance.io SAAS in a manner contrary to the instructions of Appliance.io or any Documentation provided; or (d) use the Appliance.io SAAS to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service.
4.2 Appliance.io may suspend Client’s access to, or use of, the Appliance.io SAAS, if in Appliance.io’s discretion it believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Appliance.io SAAS or any related content, code, or data (b) Client is accessing or using the Appliance.io SAAS to commit an illegal act; or (c) there is a violation of any agreements between the Parties. When reasonably practicable and lawfully permitted, Appliance.io will provide Client with advance notice of any such suspension. Appliance.io will use reasonable efforts to re-establish the Appliance.io SAAS promptly after Appliance.io determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Client from Client’s obligation to make payments under this Agreement.
5. Proprietary Rights and Client Content
5.1. Appliance.io’s Proprietary Rights. Appliance.io retains all right, title and interest in and to all the Appliance.io SAAS, along with all general techniques, methods, processes, routines, documentation, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the Subscription term. Further, Client acknowledges that the structure, organization, and code of the Appliance.io SAAS and all software components thereof are proprietary to Appliance.io and/or Appliance.io's licensors and that Appliance.io and/or its licensors retains exclusive ownership of the Appliance.io SAAS, Documentation, trademarks, and any and all other Intellectual Property Rights relating to the Appliance.io SAAS, including all modifications, derivatives, and other software and materials developed hereunder by Appliance.io, and all copies thereof. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Appliance.io SAAS, including but not limited to any modifications, derivatives, compiled reports, Documentation, and other software and materials developed by Appliance.io. Client shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the Appliance.io SAAS or any portions of the Appliance.io SAAS including any modifications, enhancements, derivatives, and other software and materials developed hereunder by Appliance.io to others in violation of this Agreement. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own intellectual property. All rights not expressly granted are reserved for Appliance.io.
5.2. Trademarks. “Appliance, Inc.”, “appliance.io”, and any other trademarks and service marks adopted by Appliance.io to identify the Appliance.io SAAS and other Appliance.io products and services belong solely to Appliance.io. Client has no rights in such marks except as specified in writing between the Parties. Client may not publicly display the Appliance.io logo, its marks without express written consent from Appliance.io.
5.3. Feedback. If Client provides Appliance.io any suggestions or feedback regarding the Appliance.io SAAS (“Client Feedback”), then Appliance.io may use the Client Feedback without obligation or payment to Client, and Client hereby irrevocably assigns to Appliance.io all right, title, and interest in that Client Feedback.
5.4 Client Content. Client owns all Client Content provided to Appliance.io. Title to Client Content and any copy thereof remains with Client. Notwithstanding Client's ownership of its Client Content, Client grants to Appliance.io a limited, royalty-free, fully paid up, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Client Content for the purposes of providing the Appliance.io SAAS contemplated under this Agreement. Client represents and warrants: (a) it owns all title, right, and interest in the Client Content; (b) the Client Content is not currently the subject of in any litigation with any third parties, (c) the Client Content does not infringe on the intellectual property rights of any other party; and (d) that all Client Content is compliant with all laws and regulations of Client and Appliance.io’s jurisdictions. During Client’s use of the Appliance.io SAAS, Client shall not upload any Client Content that is in violation of any United States’ state or federal laws. In addition, Client grants Appliance.io the right to use such Client Content (in an anonymized fashion) to help diagnose problems with Appliance.io SAAS, provide Client support, and to develop, enhance, or improve the Appliance.io SAAS. Appliance.io is not responsible for lost or destroyed Client Content, which loss or destruction shall be at Client's sole risk. Any Client Content shall be subject to the Appliance.io Privacy Policy. Appliance.io at its discretion may offer reasonable amounts of storage for any Client Content submitted by Client. Where any Client exceeds our storage capacity limits, we reserve the right to charge Client for such excess storage or terminate this Agreement at our discretion. Please be aware that we have no obligation to offer any storage of any Client Content and may change our policies related to Client Content storage limits at our discretion. We reserve the right to discontinue storage or modify any pricing, services, policies, or terms related to Client Content storage on our Appliance.io SAAS (at any time). Please be aware that we make no guarantees about any Client Content stored on the Appliance.io SAAS and Client releases us from all liability related to any Client Content stored on the Appliance.io SAAS. Specifically, we do not guarantee that Client Content will remain available, secure, accessible, or complete and some or all of the Client Content may be deleted. Appliance.io shall have no obligation to keep or make available any Client Content after a termination of Client’s subscription to the Appliance.io SAAS and shall have no obligation to assist in migrating such Client Content. We reserve the right but not the obligation to monitor or remove any Client Content at our discretion.
6. Term and Termination
6.1. Agreement Term. This Agreement will begin on the Effective Date and continue as set forth within the Subscription Order Form and renew as stated. The initial term for the Subscription shall be stated in the Subscription Order Form term (the “Initial Term”) and shall automatically renew for additional renewal terms (“Renewal Term(s)”) as stated within the Subscription Order Form until terminated by either Party. Where no Initial Term is stated, the Initial Term shall be annual and each Renewal Terms shall be annual. Prior to any Renewal Term either party may terminate the Agreement by providing forty-five (45) days written notice. The Initial Term along with any Renewal Terms shall be referred to as the “Term”.
6.2. Termination for Breach. Either Party may terminate the Agreement if the other Party breaches any material term of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of such breach by the non-breaching Party.
6.3. Effect of Termination. Upon expiration or termination of this Agreement: (a) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; (b) all Fees pre-paid to Appliance.io shall not be refunded and Fees accrued until termination and owed by Client are immediately due upon receipt of a final invoice from Appliance.io; and (c) upon request, each Party will use commercially reasonable efforts to return or destroy all Confidential Information of the other Party and certify that it has done so in writing. Where Client has timely paid for all fees, Client at Appliance.io’s discretion may be able to download and export any Client Content stored within the Appliance.io SAAS.
6.4 Account Holds. From time to time, Appliance.io may place a hold (“Hold”) on a Client’s account. Some of the reasons that we may place a Hold on Client’s account include but are not limited to the following: (1) if we have reason that Client’s actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third party contractual right; (2) at the request of our payment processors or due to delayed payment; or (3) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If Client has questions about a Hold we may have placed on Client’s account, or need information about how to resolve the Hold, please contact us. Additionally, we may suspend Client’s access to the Appliance.io SAAS while such Hold is in place.
7. Third Parties
7.1 Payment Integration. The Appliance.io SAAS may permit integration with Third Party Software that accepts and processes payments on behalf of Client. Client shall verify and solely be responsible for ensuring that any payment processing with any Third Party Software is properly configured. Appliance.io cannot assist Client with any payment related issues including but not limited to account freezes, holds, chargebacks, or loss of payment processing functionality. Any payment issues must be resolved solely with such Third Party Software provider and Appliance.io is not a party to any such agreement.
7.2 Third Party Content. Appliance.io does not endorse or warrant any third party content including but not limited to any materials, results, information, or other data provided by a third party (collectively “Third Party Content”) and does not assume responsibility for any Third Party Content encountered on the Appliance.io SAAS. Appliance.io may provide pricing information for certain products that are based on Third Party Content, any such pricing information is provided without warranty or endorsement. If you use or access any Third Party Content you do so at your own risk. We recommend that you independently evaluate Third Party Content and you should not solely rely on the Third Party Content displayed on the Appliance.io SAAS to make any decisions. If you require more information regarding any Third Party Content, please contact the owner of such Third Party Content. Further, Appliance.io assumes no liability for inaccuracies or misstatements made by such third parties responsible for such Third Party Content.
7.3 Disputes with Customers. Appliance.io is not a party to any agreements between Client and any of its customers that use the Appliance.io SAAS. Appliance.io cannot assist in resolving any disputes between Client and its customers and Client shall indemnify Appliance.io against any disputes brought by its customers subject to the indemnification obligations found in this Agreement.
8. Warranties
8.1 Appliance.io SAAS Warranty. Appliance.io represents and warrants that the Appliance.io SAAS will generally conform in accordance with any Documentation provided. Client’s sole and exclusive remedy, and Appliance.io’s entire liability for breach of the limited warranty in this Section 8.1, shall be correction of the warranted non-conformity or, if Appliance.io fails to correct the warranted non-conformity after using reasonable commercial efforts, Appliance.io may terminate access to the non-conforming Appliance.io SAAS and refund the fees paid by Client for the Appliance.io SAAS for the remainder of the term (starting on the date Client reported the non-conformity). Appliance.io represents and warrants that it shall exercise commercially reasonable efforts to keep the Appliance.io SAAS free of all computer viruses, Trojan horses, and comparable malicious code intended to harm the Client’s systems (collectively, “Virus”) provided that Appliance.io shall not be responsible for any such Virus that is placed on the Appliance.io SAAS by a Client, or its Authorized Users or any third party.
8.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
8.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not, to the best of the Party’s knowledge, violate a third-party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
8.4 Client acknowledges that any Client Content or reports generated, obtained or acquired through the use of the Appliance.io SAAS is used at Client's sole risk and discretion. As Client inputs all Client Content, Appliance.io is not liable or responsible for any results generated through Client’s use of the Appliance.io SAAS.
8.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER APPLIANCE.IO NOR ITS AFFILIATES PROVIDE ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE APPLIANCE.IO SAAS, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FREEDOM FROM VIRUS, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM APPLIANCE.IO OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO APPLIANCE.IO DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR TWENTY FIVE THOUSAND US DOLLARS ($25,000), WHICHEVER IS LESSER. THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE FOLLOWING SECTIONS 10 (INDEMNITY) AND 3 (PAYMENT AND PRICING) AND ANY FEES OWED.
10. Indemnity. Client will indemnify and hold Appliance.io, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising out of any third-party claim alleging: (a) any information or results obtained through use of the Appliance.io SAAS by Client; (b) any claim arising from Client or its Authorized User’s use of the Appliance.io SAAS; and (c) that the Client Content used in connection with the Appliance.io SAAS violates, infringes or misappropriates the Intellectual Property Rights of a third party. In the event of indemnification, Appliance.io shall have the right to choose counsel and control settlement.
11. Availability and Support
11.1 Availability. The Appliance.io SAAS shall be generally available and accessible; however, Appliance.io cannot make any guarantees regarding any up-time or availability. From time to time the Appliance.io SAAS may be unavailable due to regular maintenance, repair, or system updates generally and where practicable Appliance.io shall notify Client of such unavailability.
11.2 Support Levels. During the term of this Agreement Appliance.io shall maintain generally available support. Support requests shall be resolved by priority level at Appliance.io’s discretion.
12. Miscellaneous
12.1. Publicity. Client may state publicly that it is a user of the Appliance.io SAAS, and Appliance.io may identify Client as a user of the Appliance.io SAAS, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other.
12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Subscription Order Forms), without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conflicting Terms. Except as otherwise set forth. this Agreement shall supersede all other agreements between the Parties including the User Agreement. Where a Subscription Order Form directly and explicitly supersedes or modifies any terms within this Agreement, such language shall supersede this Agreement.
12.4. Entire Agreement. The Agreement along with any Subscription Order Form, Privacy Policy, and User Agreement (where applicable) sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
12.5. Export Controls. Client agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Client’s use of the Appliance.io SAAS. In particular, but without limitation, the Appliance.io SAAS may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Client represents and warrants that Client are not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. Except for the timely payment of Fees, neither Party will be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law and Dispute. This Agreement shall be governed by the laws in force in the state of Missouri. The offer and acceptance of this contract is deemed to have occurred in the state of Missouri. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded. Any dispute relating in any way to Client’s use of the Appliance.io SAAS (including any Authorized User’s use) shall be submitted to confidential arbitration in St. Louis, MO. Any and all disputes arising out of or relating to this Agreement or usage of the Appliance.io SAAS, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable rules of Judicial Arbitration and Mediation Implementation Services, Inc. and its then binding rules found at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration shall be conducted by one (1) arbitrator and in English. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Each party shall bear its own fees in event of a dispute. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within St. Louis, MO.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. Notices. All notices to Client must be in writing (physical letter or email) to the address or email information stated within Client’s Appliance.io Subscription account, with delivery receipt or read receipt required. Notices to Appliance.io shall be sent to 14751 Manchester Rd, Ballwin, Missouri 63011 in writing with delivery receipt required..
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemnification, Confidentiality, Limitation of Liability, relevant Subscription Order Form provisions, and Miscellaneous.
12.13 Amendments. From time to time, Appliance.io may amend this Agreement, the Privacy Policy, the User Agreement, or the Subscription Order Form. Where such amendment is material you may be required to agree to the amended Agreement. Your continued use of the Appliance.io SAASs after such amendment shall constitute acceptance of such amended terms.
12.14 E-Consent. The communications and Agreement between Client and Appliance.io use electronic means. For contractual purposes, both Parties (1) consent to receive communications from Appliance.io in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications (including this Agreement) that Appliance.io provides to Client electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing and all consents regarding this Agreement or any other agreements may be collected electronically. The foregoing does not affect your statutory rights.