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The APPCRO BMS Website (the “Site”) is a copyrighted work belonging to APPCRO Ltd., APPCRO grants you the right to use the Site subject to the terms and conditions of use (“Terms of Use”) set forth below. Please read these terms of use carefully. By accessing the site, other than to read these terms of use for the first time, you agree to be bound by the terms and conditions below. If you do not wish to be bound by these terms and conditions, you may not access or use this site.
License
Subject to the terms and conditions of this agreement, APPCRO grants you a right to view the materials contained on the Site (the “Materials”). You are not granted any right to use APPCRO’s trademarks, logos, trade dress (including without limitation the layout of the Site) or other marks, and all such items shall remain the exclusive property of APPCRO.
Modification
APPCRO reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that APPCRO will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site.
Treatment of Personal Information Received through the Site
We use the term “Personal Information” to refer to information that, by itself, would permit someone to identify or contact you, such as your full name, address, telephone number, or email address. Submission of all Personal Information through the Site is voluntary. By deliberately and expressly sending personal information to APPCRO through the Site, you authorize APPCRO to collect the personal information that you submit and to use it consistent with the terms of APPCRO’s Privacy Policy (the “Privacy Policy.”)
APPCRO does not want to receive confidential or proprietary information from you through our website. Except as provided in the Privacy Policy, information or material sent to APPCRO through its website will be deemed NOT to be confidential. Review the Privacy Policy to learn more about APPCRO’s privacy practices on the Web.
External Links
APPCRO makes no representations whatsoever about any other website which you may access through this one. When you access a non-APPCRO website, even one that may contain the APPCRO logo, understand that it is independent from APPCRO, and that APPCRO has no control over the content of that website. In addition, a link to a non-APPCRO website does not mean that APPCRO endorses or accepts any responsibility for the accuracy of the link, the content, or the use, of such website. It is up to you to take precautions to ensure that whatever you select for your use is free of such items as viruses, worms, Trojan horses and other items of a destructive nature.
Accuracy of Content
APPCRO does not warrant the accuracy or completeness of the information provided on the site. APPCRO may make changes to the information contained herein at any time, without prior notice to you. Information at this site that is periodically updated may not be current at the moment you visit this site and may contain errors. Contact APPCRO directly at the email address below for updated information before relying on any information provided at this site. In no event shall APPCRO or any party involved in creating, producing, or delivering this site be liable to you in any manner whatsoever for any decision made or act or omission by you in reliance upon the information provided at this site.
Disclaimer of Warranties
The information on the site is provided “as is” without warranty of any kind, either express or implied, including, without limitation, warranties of title or noninfringement or the implied warranties of merchantability or fitness for a particular purpose. APPCRO assumes no responsibility for errors or omissions in this site or other documents that are referenced by or linked to this site. Some jurisdictions do not allow the exclusion of implied warranties, in which case any implied warranties shall be limited to the minimum scope and period permitted by law.
Limitation of Liability
In no event shall APPCRO be liable for any indirect, incidental, special, or consequential damages of any kind, including, without limitation, those resulting from loss of use, data, or profits, whether or not APPCRO has been advised of the possibility of damages, on any theory of liability, arising out of or in connection with the use or performance of the site or any information provided in connection with the site. Some jurisdictions do not allow the limitation or exclusion of liability for consequential or incidental damages so the above limitation or exclusion may not apply to you.
Copyright
The Site and the Materials are copyrighted works of APPCRO Ltd.. Neither the Site nor the Materials may be reproduced, displayed, modified, or adapted, distributed or transmitted in any form by any means (including, but not limited to, electronic duplication or transmission) without the prior written permission of APPCRO except as set forth in these terms and conditions.
Trademarks
APPCRO BMS, the APPCRO BMS logo, and all additional trademarks and service marks listed on our Site are trademarks and service marks of APPCRO, Inc. All rights are reserved. All other trademarks and service marks are the property of their respective owners.
Amendments to the Terms of Use
APPCRO may at any time revise these terms by updating this posting. By using this website, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current terms to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages of this Site, including, but not limited to, the Privacy Policy.
If you have questions regarding our Terms of Use, please contact us at +38517707700, info@appcro.com or at our address Bolnicka cesta 34a, 10090 Zagreb, Croatia
Contents
2. ACCESS, USE AND ELIGIBLE USERS
2.1 Provision of Access
2.2. Documentation License
2.3. Usage Restrictions
2.4. Notices
2.5. Retained Rights; Ownership
2.6. Feedback
2.7. Communication with Administrators and Eligible Users
3. APPCRO RIGHTS AND OBLIGATIONS
3.1. Services
3.2. Authorization to Access APPCRO BMS Data
3.3. Access to APPCRO BMS Sites
3.4. Professional Services
3.5. Continuous Development
3.6. Security and Business Continuity
4. CUSTOMER RIGHTS AND OBLIGATIONS
4.1. Rights to APPCRO BMS Data
4.2. Customer Assistance
4.3. APPCRO BMS Data
4.4. Continued Access to APPCRO BMS Data
5. FEES AND EXPENSES; PAYMENTS; REFUND
5.1. Fees Apply to Direct Order
5.2. Fees
5.3. Free Trials
5.4. Taxes
5.5. Late Payments; Interest
5.6. Refunds
6. TREATMENT OF CONFIDENTIAL INFORMATION
6.1. Ownership of Confidential Information
6.2. Mutual Confidentiality Obligations
6.3. Confidentiality Exceptions
7. REPRESENTATIONS; WARRANTIES; DISCLAIMER
7.1. Mutual Warranty
7.2. Disclaimer LIMITATIONS OF LIABILITY
9. INDEMNIFICATION
9.1. Indemnity
9.2. Customer’s Indemnity Obligations
9.3. Process
10. TERM AND TERMINATION
10.1. Term
10.2. Termination for Breach
10.3. Suspension of Access
11. MISCELLANEOUS
11.1. Entire Agreement
11.2. Amendments; Modifications
11.3. Assignment; Delegation
11.4. No Third Party Beneficiaries
11.5. Severability
11.6. Force Majeure
11.7. Arbitration
11.8. Governing Law
11.9. Headings
11.10. Publicity
1. DEFINITIONS
Capitalized terms not defined elsewhere in these SaaS Terms, shall have the meanings set forth below.
- “Administrator”
means one or more Eligible Users, reseller parties (the term “reseller party” to include but not be limited to an managed service provider (MSP), value-added reseller (VAR), or other authorized APPCRO BMS reseller from whom Customer purchases the APPCRO BMS Service) or other persons who Customer authorizes to control, manage and use the APPCRO BMS Services on Customer’s behalf, including access to and control of the APPCRO BMS Data. - “Affiliate”
means any entity directly or indirectly controlling, controlled by, or under common control with, Customer or APPCRO. - “Agreement”
means an Order for APPCRO BMS Services together with these SaaS Terms. - “APPCRO BMS Data”
means the data, information and other files that exist on APPCRO BMS Sites and which Customer designates for use and backup with the APPCRO BMS Services. - “APPCRO BMS Site”
means a third-party website or web-based application or service with which the APPCRO BMS Services interact, upon Customer’s authorization, to obtain a copy of the APPCRO BMS Data. - “APPCRO”
means APPCRO, Ltd. or any of its Affiliates that offer the APPCRO BMS Services. - “APPCRO BMS Services”
means the services ordered by Customer and provided by APPCRO by means of access to certain content and use of the features and functionality of software applications made available and accessible to Customer by APPCRO solely to the extent set forth and further described in, and as limited by, the Customer’s Order and these SaaS Terms. - “Confidential Information”
means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified by the disclosing Party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. - “Customer”
is the Party who orders and is responsible for payment of the APPCRO BMS Services for use by Customer or its Eligible Users. A Customer may be an individual or a legal or governmental entity (e.g., corporation, limited liability company, educational institution, government agency). References to “Customer” in these SaaS Terms shall in the applicable context also refer to any Administrator or Eligible User acting on Customer’s behalf. - “Documentation”
means the documentation provided by APPCRO to Customer in an electronic format that describe the features, functions and operation of the APPCRO BMS Services. - “Eligible User”
means any individual affiliated with Customer who Customer authorizes it to use the APPCRO BMS Services. If a Customer is an individual, the Customer may be the same person as the Eligible User. As between a Customer and an Eligible User, the Customer will be the owner of the APPCRO BMS Data and Customer is responsible for the acts and omissions of its Eligible Users. - “Order”
means an order for APPCRO BMS Services that specifies the APPCRO BMS Site, data storage allotment and/or number of Eligible Users via license and sub-systems included into order. - “Parties”
means APPCRO and Customer, each a Party. - “SaaS Terms”
means these terms and conditions that together with an Order form a binding agreement between the Parties regarding use of the APPCRO BMS Services.
2. ACCESS, USE AND ELIGIBLE USERS.
2.1 Provision of Access
Subject to payment of the applicable fees, APPCRO hereby grants Customer a non-exclusive, non-transferable right to permit access to and use of the APPCRO BMS Services during the Term for the number of Eligible Users and /or the applicable data storage allotment as set forth in an Order. APPCRO shall provide to Customer the necessary passwords, security protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Eligible Users to access the APPCRO BMS Services. Customer will permit only Administrators and Eligible Users to access the APPCRO BMS Services through the Access Protocols and Customer will be responsible for any such use of the APPCRO BMS Services using Customer’s Access Protocols. Customer shall notify APPCRO as soon as practicable of any unauthorized use of any Access Protocols, password or account or any other known or suspected breach of security. Customer bears responsibility for all acts and omissions of its Administrators and represents and warrants that APPCRO may rely on the instructions and authorizations of such Administrators in connection with the APPCRO BMS Services. Customer shall be also responsible for all acts and omissions of Eligible Users, and any act or omission by such Eligible Users which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
2.2 Documentation License
APPCRO hereby grants to Customer a non-exclusive, non-transferable right and license to use and reproduce the Documentation during the Term for Customer’s internal purposes solely in connection with its use of the APPCRO BMS Services.
2.3 Usage Restrictions
Customer will not: (a) copy, modify or duplicate the APPCRO BMS Services; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the APPCRO BMS Services is compiled or interpreted; (c) modify the APPCRO BMS Services or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of APPCRO; (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this Agreement; (e) access or use the APPCRO BMS Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law or regulation; (f) build a similar or competitive product or service to the APPCRO BMS Services; or (g) damage, interfere with or disrupt the integrity, performance, security or use of the APPCRO BMS Services.
2.4 Notices
Customer will not conceal, remove or alter any proprietary notice or legend regarding APPCRO’s proprietary rights in the APPCRO BMS Services.
2.5 Retained Rights; Ownership
As between the Parties, Customer retains all right, title and interest in and to the APPCRO BMS Data, and APPCRO acknowledges that it neither owns nor acquires any additional rights in and to the APPCRO BMS Data not expressly granted under this Agreement. For purposes of this Agreement, a) APPCRO BMS Data is the Confidential Information of Customer, not the applicable Eligible User; b) Customer agrees to inform Eligible Users that Customer controls such information with APPCRO; and c) APPCRO is under no obligation to inform Eligible Users that Customer controls such information with APPCRO. APPCRO or its licensors retain all right, title and interest in and to the APPCRO BMS Services and the Documentation, including all technology, software, methods, and systems and intellectual and proprietary rights embodied therein and Customer acknowledges that neither Customer nor any Eligible User owns nor acquires any rights in and to the foregoing not expressly granted by this Agreement.
2.6 Feedback
APPCRO in its sole discretion, may utilize, all comments, ideas, error reports, customer development orders and suggestions, whether written or oral, furnished by Customer or its Eligible Users or Administrators to APPCRO in connection with its access to and use of the APPCRO BMS Services (all such comments and suggestions provided hereunder constitute, collectively, the “Feedback”) and shall not be considered Confidential Information. Customer hereby grants APPCRO a worldwide, non-exclusive, irrevocable, perpetual, sub-licensable, assignable, royalty-free right and license to incorporate the Feedback into APPCRO products and services.
2.7 Communication with Administrators and Eligible Users
As part of the provision of the APPCRO BMS Services, APPCRO may need to communicate with Administrators and Eligible Users from time-to-time. Customer hereby grants APPCRO the limited right to communicate with Administrators and Eligible Users as may be necessary as part of the provision of the APPCRO BMS Services, in APPCRO’s reasonable discretion.
3. APPCRO RIGHTS AND OBLIGATIONS.
3.1 Services
APPCRO will undertake commercially reasonable efforts to save a copy of the APPCRO BMS Data to a server operated by APPCRO or its agents. In accordance with the Documentation, APPCRO will automatically poll such APPCRO BMS Sites’ API for changes or additions to the APPCRO BMS Data and periodically re-save a copy of a modified file or create a copy of a newly designated file. APPCRO will provide the APPCRO BMS Services in accordance with the Service Level Agreement (“SLA”) set forth at SLA Agreement (Default Customer SLA level is L0 – Basic SLA), as may be amended from time to time by APPCRO.
3.2 Authorization to Access APPCRO BMS Data
Customer, on behalf of itself and its Eligible Users, hereby authorizes APPCRO to act on Customer’s behalf to access and interact with the APPCRO BMS Site so APPCRO can retrieve and store duplicate copies of the APPCRO BMS Data.
3.3 Access to APPCRO BMS Sites
Customer agrees and acknowledges that a APPCRO BMS Site may change or amend its guidelines and APPCRO’s access to it at any time, and APPCRO cannot guarantee that the APPCRO BMS Services will always include a connection to such APPCRO BMS Site. If any such change materially affects APPCRO’s ability to perform the APPCRO BMS Services, APPCRO will notify Customer and the Parties will work together to reasonably resolve the APPCRO’s lack of access to the APPCRO BMS Site, provided that if APPCRO is unable to perform substantially the same functionality to Customer as in the APPCRO BMS Services, either Party may terminate the applicable Order by providing written notice to the other Party within thirty (30) days of the date such connectivity is terminated. In such event, APPCRO shall refund to Customer any unused prepaid fees for the remainder of the applicable Term as its sole and exclusive remedy.
3.4. Professional Services
APPCRO will provide Customer with. If separately agreed in writing by the Parties, APPCRO may also provide consulting, implementation, configuration, customization, user training or other professional services with respect to the APPCRO BMS Services.
3.5. Continuous Development
The Parties acknowledge and agree that APPCRO may continually develop, deliver and provide to Customer ongoing innovation to the APPCRO BMS Services in the form of new features, functionality, capabilities and services. Accordingly, APPCRO reserves the right to modify the APPCRO BMS Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event APPCRO adds additional services to the APPCRO BMS Services; APPCRO may condition the implementation of such services on Customer’s payment of additional fees.
3.6. Security and Business Continuity
APPCRO shall employ reasonable measures designed to:
(a) ensure that all APPCRO BMS Services are free from viruses, worms, Trojan horses, spyware, adware, and other malicious code; and
(b) protect the security of the APPCRO BMS Data and APPCRO BMS Services. APPCRO BMS’s data security program will include reasonable administrative, physical and technical measures against the loss, unavailability, unauthorized access or alteration of APPCRO BMS Data in the possession or under the control of APPCRO.
However, no password-protected system of data storage and retrieval can be made entirely impenetrable and Customer acknowledges and accepts that despite the reasonable measures employed, the APPCRO BMS Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
4. CUSTOMER RIGHTS AND OBLIGATIONS
4.1 Rights to APPCRO BMS Data
Customer represents and warrants that it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit APPCRO’s access to, collection of, use, transmission and display of the APPCRO BMS Data in accordance with this Agreement (including from APPCRO BMS Sites and Eligible Users). Customer hereby grants to APPCRO a limited, royalty-free, non-exclusive, assignable license to use, copy, reformat, display, disclose and distribute the APPCRO BMS Data solely for the purpose of providing the APPCRO BMS Services and as otherwise necessary for exercising APPCRO’s rights or performing APPCRO’s obligations under this Agreement.
4.2 Customer Assistance
Certain data, information and materials from Customer are required for the proper operation of the APPCRO BMS Services, including the list of Eligible Users. Customer shall make available in a timely manner at no charge to APPCRO all such information required by APPCRO for the performance of its obligations under this Agreement, and Customer will ensure such information is truthful, compete, and accurate. Customer shall be responsible for and assumes the risk, responsibility and expense of (a) any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of its APPCRO BMS Data; and (b) acquiring, installing and maintaining all connectivity, hardware, software and other equipment as may be necessary for it and its Administrators and Eligible Users to connect to, access, and use the APPCRO BMS Services.
4.3 APPCRO BMS Data
Customer represents, warrants and agrees that APPCRO BMS Data will not:
(a) infringe any copyright, trademark, patent or other proprietary right of others;
(b) misappropriate any trade secret;
(c) be deceptive, fraudulent, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(d) contain any viruses, worms or other malicious computer programming codes able to damage the APPCRO BMS Services;
(e) violate the terms and conditions of the APPCRO BMS Site on which it is located; or
(f) otherwise violate any applicable laws or the rights of a third party.
In the event that APPCRO reasonably believes any APPCRO BMS Data contains illegal content or otherwise violates any of the foregoing restrictions, APPCRO reserves the right to refuse or disable Customer’s and/or eligible Users’ access to, or remove or delete such APPCRO BMS Data, provided that APPCRO will use reasonable efforts to Contact Customer prior to any such restriction, removal or deletion.
4.4 Continued Access to APPCRO BMS Data
Customer will be responsible to maintain authorization and access for APPCRO to APPCRO BMS Sites in order to ensure that APPCRO is regularly able to access APPCRO BMS Data. Customer agrees and acknowledges that APPCRO BMS Data may not be available or restorable
a) if APPCRO has not completed copying the selected files or changed files before Customer, Administrator or an Eligible User changes such access authority, passwords or otherwise restricts APPCRO’s access to such APPCRO BMS Site;
b) in the event of unavailability of or access modifications to the APPCRO BMS Site;
c) with respect to modifications to the APPCRO BMS Data that are not captured in the backup frequency schedule for the APPCRO BMS Services; or
d) after termination or expiration of this Agreement.
5. FEES AND EXPENSES; PAYMENTS; REFUND
5.1 Fees Apply to Direct Order
The remainder of this Section 5 will only apply between the Parties in situations where Customer orders APPCRO BMS Services directly from APPCRO. Where Customer orders APPCRO BMS Services through an authorized reseller, Customer will pay all fees for APPCRO BMS Services to such reseller according to the terms and at the prices agreed between Customer and such reseller.
5.2 Fees
Where Customer orders APPCRO BMS Services directly from APPCRO, Customer will pay APPCRO, without offset or deduction, all fees due for the APPCRO BMS Services. Fees and payments shall be calculated by APPCRO solely based on records maintained by APPCRO, and Customer must notify APPCRO of any payment dispute in writing within fifteen (15) days of receipt of invoice. Unless otherwise specified, all fees shall be due and payable monthly. APPCRO will, as mutually agreed:
(i) invoice Customers in which case Customer will pay such invoice within fifteen (15) days of its receipt thereof or
(ii) automatically charge Customer the credit card on file with APPCRO each month for all fees incurred by Customers for such month, in which case Customer authorizes and agrees that APPCRO may charge such credit card each month for such payment, or as otherwise mutually agreed. Customer agrees to provide APPCRO with complete and accurate billing and contact information.
This information includes legal company name, street address, e-mail address and name and telephone number of an authorized billing contact. Customer agrees to update this information within three (3) days of any change.
5.3 Free Trials
From time to time APPCRO may offer certain APPCRO BMS Services for free during a trial period. During any free trial period for the APPCRO BMS Services, all of these SaaS Terms will apply, except for the relevant subsections in this Section 5 concerning payment, and certain additional trial terms and conditions may apply.
ANY DATA SAVED DURING A FREE TRIAL WILL BE PERMANENTLY DELETED FOLLOWING THE TRIAL PERIOD UNLESS
a) A PAID ORDER IS PLACED FOR THE SAME APPCRO BMS SERVICES; or
b) THE DATA IS EXPORTED BY CUSTOMER.
5.4 Taxes
Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on APPCRO’s income), and any related penalties and interest for the grant of rights hereunder, or the delivery of the APPCRO BMS Services. Customer will make all required payments to APPCRO free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to APPCRO will be Customer’s sole responsibility, and Customer will, upon APPCRO’s request, provide APPCRO with official receipts issued by the appropriate taxing authorities, or such other evidence as APPCRO may reasonably request, to establish that such taxes have been paid.
5.5 Late Payments; Interest
Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments could be made in any currency available in Infinity Payment Portal.
5.6 Refunds
Given the nature of digital content, we do not offer a refund or credit on a purchase unless it’s obligated by consumer protection laws. If you would like to request a refund or credit you should open a help request.
We will assess refund or credit request on their merits, considering the digital nature of service and time of free trial or evaluation period before purchase. There is generally no obligation to provide a refund or credit in situations like:
a) you have changed your mind about the service
b) you bought an service by mistake
c) you do not have sufficient expertise to use the service
d) you don’t need service anymore
6. TREATMENT OF CONFIDENTIAL INFORMATION
6.1 Ownership of Confidential Information
The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information that the disclosing Party is required to maintain as confidential. As between the Parties, both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party.
6.2 Mutual Confidentiality Obligations
Each Party agrees to employ reasonable safeguards to:
a) use Confidential Information disclosed by the other Party only for the purposes described herein;
b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party;
c) not reproduce or create any derivative work from Confidential Information disclosed to such Party by the other Party except as needed to provide the APPCRO BMS Services;
d) restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and
e) return or destroy, pursuant to Section 10.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that:
a) APPCRO may disclose certain APPCRO BMS Data to the APPCRO BMS Site to the extent required by the terms under which it is granted access to that APPCRO BMS Site; and
b) APPCRO may collect aggregated statistical data regarding Customer or its Eligible Users’ use of the APPCRO BMS Services (“Aggregate Data”). Aggregate Data will not include any personally identifiable information regarding Customer or any Eligible User and will not be considered Confidential Information hereunder.
6.3 Confidentiality Exceptions
Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information to the extent it
(a) is publicly available or in the public domain at the time disclosed;
(b) is or becomes publicly available or enters the public domain through no fault of the recipient;
(c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto;
(d) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure;
(e) is independently developed by the recipient;
(f) is approved for release or disclosure by the disclosing Party without restriction; or
(g) consists of Aggregate Data or Feedback.
Each Party may also disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making any such disclosure, where possible, shall first have given written notice to the other Party in order to allow the other Party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure; or to establish a Party’s rights or enforce obligations under this agreement, but only to the extent that any such disclosure is necessary.
7. REPRESENTATIONS; WARRANTIES; DISCLAIMER
7.1 Mutual Warranty
Each Party hereby represents and warrants that the (a) execution and performance of this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; (b) that the execution and performance of this Agreement will not be in violation of any agreement or obligation of such Party to a third party or in violation of the rights of any third party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.2 Disclaimer
Except as expressly represented or warranted in this agreement, to the maximum extent permitted by applicable law, the APPCRO BMS services, the documentation, and all services performed by APPCRO are provided “as is,” and APPCRO disclaims any and all other representations and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, system integration and/or data accuracy. APPCRO does not warrant that the APPCRO BMS services or any other services provided by APPCRO will meet customer’s requirements or that the operation of the APPCRO BMS services will be uninterrupted or error-free, or that all errors will be corrected. APPCRO is not responsible for compliance with, and makes no representation or warranty that the APPCRO BMS services will comply with, any law or regulation applicable to customer or customer’s industry. APPCRO BMS’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. APPCRO is not responsible for any delays, delivery failures, or other damage resulting from such problems. APPCRO shall not have any liability whatsoever for the accuracy, completeness, or timeliness of the backed-up data, or for any decision made or action taken by customer in reliance upon any backed-up data.
8. LIMITATIONS OF LIABILITY
Limitation of Liability
In no event will APPCRO be liable for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if APPCRO has been advised of the possibility of such damages. The cumulative liability of APPCRO to customer for all claims arising from or relating to this agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the fees paid by customer for APPCRO BMS services during the six (6) month period preceding the event giving rise to the claim. These limitations upon damages and claims are intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.
Essential Basis
Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 7 and 8 form an essential basis of the agreement between the Parties and that absent such disclaimers, exclusions and limitations of liability, the terms, conditions and payment obligations of this Agreement would be substantially different.
9. INDEMNIFICATION
9.1 Indemnity
APPCRO hereby agrees to defend, indemnify and hold harmless Customer, its Affiliates, and each of their respective officers, directors, employees and agents (each, an “Indemnified Party”), from and against any and all losses, liabilities, costs, expenses and damages (including, but not limited to, reasonable attorneys’ fees) (“Losses”) arising out of or relating to any claim by a third party alleging infringement of any Intellectual Property Right with respect to the Software (“Claims”) [3], provided that APPCRO will have received from Customer:
i) prompt written notice of such Claim (but in any event notice in sufficient time for Vendor to respond without prejudice);
ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such Claim; and
iii) all reasonable necessary cooperation of Customer.
APPCRO will not settle any claim without Customer’s prior written consent, unless the settlement fully releases Customer and does not require Customer to pay any amount or admit any liability. Customer may participate in the defense of any claim by counsel of its own choosing, at its cost and expense. If Customer’s use of the Software is (or in APPCRO’s opinion is likely to be) enjoined, Vendor may [will]:
a) substitute for the Software substantially functionally similar programs and documentation;
b) procure for Customer the right to continue using the Software; or if (a) and (b) are not possible after reasonable commercial efforts from Vendor,
c) APPCRO[or Customer] may terminate the Agreement and APPCRO will refund to Customer the license fee paid by Customer as reduced to straight‐line depreciation.
The foregoing obligations of APPCRO shall not apply to the extent the claim arises from:
(1) modifications to the Software by any party other than APPCRO;
(2) combinations of the Software with products or processes not provided or authorized by APPCRO; or
(3) any unauthorized use of the Software.
THIS SECTION SETS FORTH APPCRO’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer’s Indemnity Obligations
Customer agrees to hold harmless, indemnify, and, at APPCRO’s option, defend APPCRO from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent resulting from the APPCRO BMS Data or any breach of these SaaS Terms.
9.3 Process
Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the Indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification is sought; (b) the Indemnifying Party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
10. TERM AND TERMINATION
10.1 Term
The term for each Order will commence on the Effective Date of an Order as specified by APPCRO and will continue for an initial term of payed period from the Effective Date, unless earlier terminated in accordance with this Section 10. Unless otherwise specified, each Order will automatically renew for a same period customer initially setup at the end of the then-current term unless either Party provides written notice of its desire to terminate at any time prior to the expiration of the then-current term (the initial term and each renewal term are collectively the “Term”).
10.2 Termination for Breach
Either Party may, at its option, terminate an Order in the event the other Party materially breaches any of its duties, obligations or responsibilities under these SaaS Terms and fails to cure such breach (or provide an acceptable plan for curing such breach) within thirty (30) days after receipt by the breaching Party of written notice specifying the breach.
10.3 Suspension of Access
APPCRO may suspend Customer’s access to the APPCRO BMS Services in the event any amount due under this Agreement is not received when due and Customer has not paid such amount within fifteen (15) days of receipt of written notice of such overdue payment. In addition, APPCRO may suspend access to the APPCRO BMS Services for any Customer or Eligible User who does not use the APPCRO BMS Services in conformance with these SaaS Terms, or if APPCRO in its reasonable discretion, has reason to believe whose use poses a threat to the security of APPCRO BMS Services or is in violation of section 2.3 or 4.3. APPCRO will use commercially reasonable efforts where possible to provide notice in advance of such suspension and in any case within twenty four (24) hours after commencing such suspension.
10.4 Effect of Termination
Upon any termination of an Order, Customer will immediately discontinue all use of the APPCRO BMS Services and pay all amounts due and payable hereunder. Each Party will promptly delete any Confidential Information of the other Party, except that APPCRO may retain APPCRO BMS Data for such time as may be required by law or otherwise, to prevent fraud, resolve disputes, troubleshoot problems, or enforce these SaaS Terms. For up to thirty (30) days after the effective date of termination, APPCRO will, upon written request by Customer, use commercially reasonable efforts to provide Customer and/or an Eligible User with a copy of its APPCRO BMS Data in a format supported by APPCRO. After such periods as specified in this section, APPCRO may delete APPCRO BMS Data and Customer acknowledges and agrees that APPCRO will have no liability for any such deletion.
10.5 Survival
The provisions of Sections 2.5, 2.6, 2.7, 4.1, 4.3, 4.4, 5-9, 10.4, 10.5 and 11 will survive the termination or expiration of this Agreement.
11. MISCELLANEOUS
11.1 Entire Agreement
This Agreement sets forth the entire agreement and understanding between the Parties and, except as specifically provided herein, supersedes and merges all prior agreements between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors
Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
- Notices
All notices required or permitted hereunder will be in writing, delivered by nationally recognized overnight courier at the Parties’ respective addresses set forth in the original Order. Notices will be deemed effective upon receipt as evidenced by courier delivery confirmation. In addition, APPCRO may send any notice required or permitted hereunder via email to the address specified on the original Order and such notice will be deemed effective upon receipt by APPCRO of email delivery notification.
11.2 Amendments; Modifications
This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
11.3. Assignment; Delegation
Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of APPCRO. Absent such consent, any attempted assignment or delegation will be null and void. APPCRO may assign its rights or delegate its duties under this Agreement to any Affiliate.
11.4 No Third Party Beneficiaries
The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.5. Severability
If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver
No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.
11.6. Force Majeure
Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of APPCRO’s control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
11.7. Arbitration
Except as provided below, any and all disputes arising from or relating to the subject matter of the terms of this Agreement shall be settled by binding arbitration in accordance with the rules then in effect of the Croatian Arbitration Association. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) shall be made a part of the arbitrator’s award. The arbitration shall take place in Zagreb, Croatia. Notwithstanding the foregoing, the parties retain the right to seek and obtain preliminary or permanent injunctive relief from a court specified in Section 11.11
11.8. Governing Law
This Agreement will be governed by and interpreted in accordance with the laws of Croatia. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the courts located in Zagreb, Croatia.
11.9. Headings
The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
11.10. Publicity
Within thirty (30) days after execution of this Agreement, APPCRO may issue a press release announcing the relationship with Customer, subject to Customer’s approval, which will not be unreasonably withheld. APPCRO may publicly refer to Customer orally and in writing, including on APPCRO’s website and sales presentations, as a customer of APPCRO and may use Customer’s logo for such purposes.
01 January 2023