This User Agreement (“Agreement”) is an agreement between APPS4RENT LLC, (“APPS4RENT”), a New Jersey corporation, and the party set forth in the related order form (“Customer” or “You”) incorporated herein by reference (any subsequent order forms submitted by Customer, the “Order Form”), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the “Services”).
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND APPS4RENT, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING APPS4RENT’S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Acceptable Use Policy: Under this Agreement, Customer shall comply with APPS4RENT’s then current Acceptable Use Policy (.AUP.), as amended, modified or updated from time to time by APPS4RENT, which currently can be viewed under the Policies section of this web site, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. APPS4RENT does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the “Customer Content”). Customer Content includes content of Customer’s customers and/or users of Customer’s website. Accordingly, under this Agreement, You will be responsible for Your customers content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, APPS4RENT may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event APPS4RENT takes corrective action due to a violation of the AUP, APPS4RENT shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that APPS4RENT shall have no liability to Customer or any of Customer’s customers due to any corrective action that APPS4RENT may take (including, without limitation, disconnection of Services).
You must cooperate with Apps4Rent in the event that a software vendor or OEM requests our participation in an audit of the software services. You agree that Apps4Rent may provide the software vendor with (a) the number of Virtual Machine instances provided to you by Apps4Rent (b) a list of the software vendor’s software products which run in such Virtual Machine instances. If the software vendor determines that you are non-compliant with the program requirements and you do not cure the non-compliance within a time period specified by the software vendor, then Apps4Rent may terminate the Services.
Microsoft Software Licensing Usage: If you make use of Microsoft software on the Services that is not relicensed to you by Apps4Rent under the under the Microsoft Service Provider License Agreement (“SPLA”), then you represent and warrant that you have a written license agreement that permits you to use the Microsoft software in conjunction with the Services.
Customer’s Representations and Warranties:
Customer hereby represents and warrants to APPS4RENT, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
License to APPS4RENT:
Indemnification: Customer agrees to indemnify, defend and hold harmless APPS4RENT and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
APPS4RENT as Reseller or Licensor: APPS4RENT is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-APPS4RENT Product”). APPS4RENT shall not be responsible for any changes in the Services that cause the Non-APPS4RENT Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-APPS4RENT Product either sold, licensed or provided by APPS4RENT to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of APPS4RENT’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-APPS4RENT Product are limited to those rights extended to Customer by the manufacturer of such Non-APPS4RENT Product. Customer is entitled to use any Non-APPS4RENT Product supplied by APPS4RENT only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by APPS4RENT to Customer through any Non-APPS4RENT Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-APPS4RENT Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
Internet Protocol (IP) Address Ownership: If APPS4RENT assigns Customer an Internet Protocol (.IP.) address for Customer’s use, the right to use that IP address shall belong only to APPS4RENT, and Customer shall have no right to use that IP address except as permitted by APPS4RENT in its sole and absolute discretion in connection with the Services, during the term of this Agreement. APPS4RENT shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by APPS4RENT, and APPS4RENT reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Server resources: It is in the sole and absolute discretion of APPS4RENT to determine if Customer is using the server resources fairly and to maintain the proper level of uptime for other Customers on the server. APPS4RENT will monitor Customer’s usage and shall have the right to take corrective action such as disconnection or discontinuance of any and all Services, or termination of this Agreement.
Customer agrees to use all Services and any information obtained through or from APPS4RENT, at Customer’s own risk: Customer acknowledges and agrees that APPS4RENT exercises no control over, and accepts no responsibility for, the content of the information passing through APPS4RENT’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF APPS4RENT, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “APPS4RENT PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT APPS4RENT PROVIDES. NO APPS4RENT PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. APPS4RENT IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY APPS4RENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY APPS4RENT PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Billing and Payment:
Customer will pay to APPS4RENT the service fees for the Services in the manner set forth in the Order Form
Duration of Agreement, Continuity, and Cancellation Policy:
The Initial Term shall begin upon agreement of APPS4RENT’s Policies by the Customer, commencement of the Services to Customer and/or receipt of lawful funds. The term’s length is chosen by customer and shall be indicated in the order form. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party 30 days in advance of the renewal/anniversary date as provided herein
Limitation of Liability:
APPS4RENT CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. APPS4RENT WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer’s indemnification obligations.
Independent Contractor. APPS4RENT and Customer are independent contractors and nothing contained in this Agreement places APPS4RENT and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of New Jersey. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN NEW JERSEY, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Headings: The headings herein are for convenience only and are not part of this Agreement.
Entire Agreement; Amendments: This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or APPS4RENT, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and APPS4RENT. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by APPS4RENT in its sole discretion, which modifications will be effective upon posting to APPS4RENT’s web site.
Severability: All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Notices: All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed as follows or to electronically to the e-mail addresses of record on file.
Waiver: No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Assignment; Successors: Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of APPS4RENT. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. APPS4RENT may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Limitation of Actions: No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen
Counterparts: If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, APPS4RENT’s records of such execution shall be presumed accurate unless proven otherwise.
Force Majeure: Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
Government Regulations: Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Marketing: Customer agrees that during the term of this Agreement APPS4RENT may publicly refer to Customer, orally and in writing, as a customer of APPS4RENT. Any other public reference to Customer by APPS4RENT requires the written consent of Customer.