Join The Conversation

Legal Notices

Welcome to the Appistry, Inc. ("Appistry") Web site. Please review the following terms and conditions concerning your use of this site. By using this site, including downloading materials, you agree to these terms and conditions. Appistry reserves the right to change these terms and conditions from time to time at its sole discretion. These terms and conditions apply to all visits to the Appistry Web site, both now and in the future. These terms represent the entire understanding relating to the use of the Appistry Web site and prevail over any prior or contemporaneous, conflicting or additional, communications.

Any action related to this Web site will be governed by Missouri law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.

Trademarks

The trademarks, logos and service marks ("Marks") displayed on this website are the property of Appistry or other third parties. You are not permitted to use these Marks without the prior written consent of Appistry or such third party which may own the Mark.

Appistry, Ayrris, CloudIQ and the Appistry "fabric" logo are trademarks of Appistry, Inc.

Microsoft, Windows, and Windows NT are registered trademarks of Microsoft Corporation.

Linux is a registered trademark of Linus Torvalds.

Google is a trademark of Google, Inc.

All other marks and names mentioned herein may be trademarks of their respective companies.

Copyright

Except where otherwise specified, the contents of this site are copyright (c) 2001-2008 Appistry, Inc., 1141 S. 7th Street, Suite 300, St. Louis, MO, 63104 USA. All rights reserved.

The contents of this site are subject to protection under U.S. and foreign copyright laws. You may not copy or distribute any portion of this site, except as necessary to view this site.

Please direct any questions or comments to info@appistry.com.

Use of Software

To the extent that Appistry provides for the download of proprietary Appistry software and open source software from Appistry's Web site ("Software"), such Software is protected by the applicable copyright, patent or other intellectual property rights of either Appistry or the open source licensor, respectively. Any use of the Software is subject to the terms of the applicable end-user or open source license agreement.

All evaluation Software is provided for evaluation, personal and internal use only and may not be used for commercial, development or production purposes. In addition, such Software is time-disabled meaning that all Software functions and features will cease to operate after a period of time.

Links to Third Party Sites

This Web site may provide links to third-party Web sites for your convenience and information. Appistry does not endorse or make any representations about third party Web sites, nor does the inclusion of any link imply any such endorsement. If you access those links, you will leave this Web site. Appistry is not responsible for webcasting or any other form of transmission received from any third-party sites. Appistry does not control those sites and Appistry is not responsible for the contents of any third-party sites, any links contained in third-party sites, any changes or updates to third-party sites, or their privacy practices, which may differ from those of Appistry. The personal data you may choose to give to such third party web sites is not covered by Appistry's privacy policies. Appistry encourages you to review the privacy policy of any company before submitting your personal information. Some third party companies may choose to share their personal data with Appistry, in which case such data sharing shall be governed by that third party's privacy policy.

Disclaimer

Although Appistry has attempted to provide accurate information on this Web site, information on this Web site may contain technical inaccuracies or typographical errors. The contents of any documents on this Web site are believed to be current and accurate as of their publication dates. Appistry assumes no responsibility for the accuracy of the information. Appistry may change the programs or products mentioned at any time without notice. For the most current and complete documents, please contact Appistry directly. Mention of non-Appistry products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.

ALL INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THIS WEB SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. APPISTRY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

APPISTRY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THIS WEB SITE OR ANY APPISTRY PRODUCT, OR DAMAGES RESULTING FROM USE OR RELIANCE ON THE INFORMATION PRESENT, EVEN IF APPISTRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Privacy Policy

Please note that our privacy policy is available here.

Back to Top

Terms and Conditions of Product Sales and Services

The terms and conditions of product sales and services are limited to those contained herein. Any additional or different terms or conditions in any form delivered by your company or organization (“Customer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products or services, statement of work, or other documentation to provide product or perform or procure any services, Customer agrees to be bound by and accept these terms and conditions. Any general description of the types of products or services and results thereof posted on any Appistry website do not constitute part of the agreement between Appistry and Customer.

These Terms and Conditions constitute a binding contract between Customer and Appistry and are referred to herein as either "Terms and Conditions" or this "Agreement". Customer accepts these Terms and Conditions by making a purchase from or placing an order with Appistry or engaging Appistry to perform or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Appistry website at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by Appistry and Customer. Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting Appistry. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic Signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.

Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a "Statement of Work"). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.

Back to Top

SERVICES AGREEMENT

Terms of Service. Subject to Customer's compliance with all of the terms and conditions of this Agreement, Appistry (i) will use commercially reasonable efforts to provide the Services specified on the Order Form and (ii) hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access the Services specified on the Order Form. The Services are subject to modification from time to time at Appistry’s sole discretion, for any purpose deemed appropriate by Appistry. Appistry will use reasonable efforts to give Customer prior written notice of any such modification. The Services (including without limitation, Results) will be delivered using Appistry’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information “Appistry Technology”).

Payment of Fees. Customer shall pay Appistry the applicable Fees as set forth on the Order Form in advance of services being performed. To the extent applicable and utilized, Customer will pay Appistry for consulting, integration or other professional services. Customer shall make all payments through the identified Payment Method and in accordance with the Terms as set forth on the Order Form and herein. If not otherwise specified, payments will be due within thirty (30) days of invoice.

Appistry may suspend Customer’s access to the Service (including all ordered Samples) if Customer is more than ten (10) business days late on a payment. Customer shall pay a late fee on any amount that is not paid when due that shall be calculated at an interest rate of 1.5% per month on any such outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection.

Customer will be billed, and payments will be made, in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Appistry’s net income.

If the Sample(s) provided by Customer does not match the Customer Data specifications agreed to on the Order Form or the Sample(s) exceed the quantity listed on the Order Form, Appistry reserves the right to stop the processing of data for that Sample(s) and promptly notify Customer of the problem making no further attempt to analyze the Sample(s). Given the significant effort in analyzing the Sample(s) in question, Appistry will provide no refund and will require a new Order Form subject to different services and fees to do further work on the Sample(s) in question.

Term and Termination. These Terms become effective upon acceptance of the first Order Form. Unless earlier terminated as provided below, these Terms shall automatically expire when no Order Form is effective (except for those provisions identified in “Miscellaneous”).

Either party may terminate these Terms (and all outstanding Order Forms) upon thirty (30) days notice if the other party breaches any material term of these Terms and fails to cure such breach within thirty (30) business days after notice of such breach. Material breach by the Customer includes any breach of Customer’s payment obligations or unauthorized use by Customer of the Appistry Technology or Service. In case Customer terminates due solely to material breach by Appistry, Customer will be entitled (as its sole remedy) to a pro-rata refund of Service Fees paid in advance for Samples that Appistry has not yet completed (if any) as of the date Customer notifies Appistry of such breach.

Permitted Uses, Restrictions, and Ownership. Customer is solely responsible for (i) providing and maintaining the hardware and software necessary to access and use the Services (including without limitation Results) (ii) making available such personnel and information as may be reasonably required, and taking such other actions as Appistry may reasonably request to provide the Services and (iii) any submission made through the administrative functions of the Services, including without limitation, any requests to increase the number of total Samples.

Customer shall not (and shall not permit others to) (i) modify or interfere with the Service or the Appistry Technology; (ii) reverse engineer, decompile, or attempt to discover the source code of the Service, Results or the Appistry Technology; or (iii) resell or otherwise use the Services for timesharing or service bureau purposes or for any purpose other than its own internal non-commercial purposes unless expressly agreed in advance in writing.

As between the parties, Appistry alone (and its licensors, where applicable) own all right, title and interest, in and to the Services, Pipelines, Appistry Technology, and other related data and information (“Appistry Confidential Information”). Customer represents and warrants that Customer owns all Customer Data and that Customer Data do not violate any third party rights of any kind.

Except as expressly set forth herein, Appistry alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service, Pipelines or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, which are hereby assigned to Appistry. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.

All rights not expressly granted to Customer are reserved by Appistry and its licensors.

Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Appistry may collect data with respect to and report on aggregate measures of the Services’ performance and other measures to enhance the performance of the Services.

Appistry acknowledges that, subject to the exceptions listed in this “Confidentiality” Section above, Customer Data is Customer’s Proprietary Information. Customer acknowledges that Appistry does not wish to receive any Proprietary Information from Customer that is not necessary for Appistry to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Appistry may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

Parties will have the right to disclose the existence but not the terms and conditions (including without limitation pricing) of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

Indemnification. Appistry shall indemnify and hold Customer and its officers, directors, employees, attorneys and agents (“Indemnitees”) harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) each to the extent paid to an unaffiliated third party to the extent arising out of or in connection with such third-party’s claim alleging that the Appistry Technology directly infringes a U.S. patent issued as of the Effective Date.

Customer shall indemnify, defend and hold Appistry, its licensors and each such party’s Indemnitees harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) each to the extent paid to an unaffiliated third party arising from or in connection with such third-party’s claims, demands or allegations i) that Customer violated the terms and conditions of Services or these Terms ii) arising from or relating to the Services or the results thereof, except claims covered by Appistry’s indemnity listed above.

As a condition to a party’s indemnification obligations hereunder, the other party shall give the indemnifying party sole control of the defense and settlement of the claim, prompt notice of a claim, and, at the indemnifying party’s expense and request, all available information and reasonable assistance in relation to such defense and settlement efforts. Neither party may compromise or settle a third-party claim that adversely affects the other party without the other party’s prior written consent, which consent shall not be unreasonably withheld.

Warranties and Warranty Disclaimer. APPISTRY REPRESENTS AND WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER. IN THE EVENT APPISTRY BREACHES SUCH WARRANTY, CUSTOMER MAY, AS ITS SOLE REMEDY, REQUEST THAT APPISTRY RE-PERFORM THE SERVICES AT NO CHARGE SOLELY WITH RESPECT TO THE RUN(S) THAT BREACH APPISTRY’S WARRANTY. APPISTRY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APPISTRY AND ITS LICENSORS.

Limitation of Liability. EXCEPT FOR APPISTRY’S OBLIGATIONS ARISING UNDER ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL APPISTRY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR A PARTY’S OBLIGATIONS ARISING UNDER INDEMNIFICATION OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND OTHER THAN AS A RESULT OF APPISTRY’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING DIRECT OR INDIRECT DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Force Majeure. Neither Party will be liable to the other Party for any default (other than failure to pay money) hereunder, for so long as such default is caused by an event beyond such Party’s control, including, without limitation, acts or failures to act of the other Party; strikes, labor or civil disputes; component shortages; unavailability of transportation; fires, war, governmental requirements; and acts of God. In the event of threatened or actual nonperformance as a result of any of the above causes, the non-performing Party will exercise commercially reasonable efforts to avoid and cure such nonperformance.

Miscellaneous. Either party may assign or transfer these Terms either to an Affiliate or in connection with a sale of substantially all of the business to which this agreement relates without the other party’s prior written consent. Except as expressly provided for in this “Miscellaneous” Section, neither party may assign these Terms. Any attempt to assign these Terms in violation of this provision shall be void. "Affiliate" of a party shall mean an entity directly or indirectly controlling, controlled by or under common control with that party.

All notices required to be provided under these Terms must be delivered in writing by nationally recognized overnight delivery service to the other party at the address set forth in the Order Form. All notices shall be in writing and shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above.

This Agreement shall be governed by Missouri law as it applies to contracts entered and performed in Missouri between two of its residents. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of these Terms. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. During the Service Term, Customer authorizes Appistry to identify Customer as an Appistry Customer on Appistry’s website and in Appistry’s marketing materials.

No joint venture, partnership, employment, or agency relationship exists between Customer and Appistry as a result of these Terms or use of the Service. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any modification or amendment of these Terms shall be in writing signed by the parties. This Agreement, together with any applicable Order Form or exhibits, comprises the entire agreement between Customer and Appistry regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. The following Sections shall survive any expiration or termination of these Terms: “Payment of Fees”, “Permitted Uses, Restrictions, and Ownership”, “Confidentiality, “Indemnification”, “Warranties and Warranty Disclaimer”, “Limitation of Liability” and “Miscellaneous”.

Back to Top

PRODUCTS AGREEMENT

Products and Software License. Subject to Customer's compliance with all of the terms and conditions of this Agreement, Appistry hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license up to the number of Products identified in the Order Form to use the Appistry Products in accordance with the Documentation for the term specified on the Order Form. Except as expressly set forth herein, Appistry alone (and its suppliers and licensors, where applicable) will retain all intellectual property rights in the Products and Software, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software is hereby assigned to Appistry and maintained as Proprietary Information of Appistry. Notwithstanding anything contained herein, all Software is licensed and not sold.

All such Open Source Software is Third Party Software. The Open Source Software is not subject to the terms and conditions of this Agreement, except for this Section, “Products License.” Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this document limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. In particular, nothing in this document restricts Customer's right to copy, modify, and distribute that Open Source Software subject to the terms of the GPL and LGPL. As required by the terms of the GPL and LGPL, Appistry makes the Open Source Software (executable code and source code) provided under the GPL and LGPL, and Appistry's modifications to that Open Source Software, available by written request at the notice address below. Customer shall be fully responsible for its compliance with all license terms, conditions or restrictions establish by Appistry's licensors and suppliers with respect to any Third Party Software including any Open Source Software.

Customer will receive a license key containing coded instructions which will enable the Software, or specific functionality of the software, to operate (i) for a specified term, and (ii) for a specified number of Processor Units. “Processor Units” are the sum of physical CPUs in a given machine (e.g. ‘sockets’) multiplied by the number of installations of the Software in concurrent use on that same machine. An individual “Processor Unit” shall mean either a single, physical CPU in a given machine or a virtual machine or operating system instance running on that machine. Appistry may suspend use of the Software in the event of expired license keys or violations of restrictions on the Software verified using the license keys.

Permitted Uses, Restrictions, and Ownership. Customer acknowledges that the internal structure, composition and organization of the Product, including all software contained therein (“Software”) constitute valuable trade secrets of Appistry and its suppliers and licensors. Accordingly, Customer shall not (and shall not permit others) to: (a) modify, adapt, alter, translate, or create derivative works from the Product, or Software; (b) distribute, sublicense, lease, rent, loan, time share or otherwise transfer the Products or Software to or allow use thereof by, any third party, or use the Products or Software for the benefit of any third party (including in any service for a third party) ; (c) exceed the number of Sequences authorized by Appistry in the applicable Order Form (d) use the Software for any purpose other than internal, noncommercial research purposes, including without limitation, for any commercial, resale, or benchmarking purposes; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Product or Software or otherwise attempt to discover the internal structure, organization or composition of the Product, except to the extent such a restriction is prohibited by applicable law notwithstanding this restriction; (f) remove, alter, or obscure in any way any proprietary rights notices or markings of Appistry or its suppliers on or within the Software or Product; or (g) copy the Software except as reasonably required for backup and archive purposes.

Customer acknowledges that Appistry and its suppliers and licensors retain, at all times, all right, title and interest in and to the Products, the user manuals and other written materials for the Software and Products, and all related intellectual property rights (the “Documentation”).

Customer represents and warrants that Customer owns all Customer Data and that Customer Data do not violate any third party rights of any kind. Customer also represents and warrants that it shall comply with all laws and regulations, whether foreign or domestic, applicable to Customer with respect to the purchase and use of the Products and Software. Customer acknowledges and agrees that the Products purchased, and Software licensed, under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer will not export or re-export any products purchased, or software licensed, under this Agreement into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.

The Software and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the United States Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

Payment of Fees. Customer shall pay Appistry the applicable fees set forth on the Order Form or otherwise agreed in writing between the parties (the “Fees”). Customer shall make all payments through the identified Payment Method and in accordance with the terms and conditions of this Agreement unless otherwise set forth on the Order Form and herein. If not otherwise specified in an Order Form, payments will be due within thirty (30) days of invoice.

Appistry may suspend Customer’s rights to use the Product if Customer is more than ten (10) days late on a payment. Customer shall pay a late fee on any amount that is not paid when due that shall be calculated at an interest rate of 1.5% per month on any such outstanding balance, or the maximum rate permitted by law, whichever is less, from the date due, plus all expenses of collection.

Customer will be billed, and payments will be made, in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Appistry’s net income.

Term and Termination. The terms and conditions of this Agreement become effective upon acceptance of the first Order Form. Unless earlier terminated as provided below, these terms and conditions (except for those provisions identified in the Section “Miscellaneous”) shall automatically expire when no Order Form is effective.

Either party may terminate these terms and conditions (and all outstanding Order Forms) upon thirty (30) days notice (but immediately in the case of a breach of the “Product License” and “Permitted Uses, Restrictions, and Ownership” Sections above) if the other party breaches any material term of these terms and conditions and fails to cure such breach within thirty (30) days after notice of such breach. Material breach by the Customer includes any breach of Customer’s payment obligations or unauthorized use by Customer of the Software or Product. In case Customer terminates due solely to material breach by Appistry, upon return of the Product and Software and all Documentation, Customer will be entitled (as its sole remedy) to a pro-rata refund of Fees paid in advance of the date Customer notifies Appistry of such breach.

Support and Maintenance. Subject to Customer’s compliance with the terms and conditions of this Agreement, Appistry shall use commercially reasonable efforts to provide support and maintenance for the Products (the “Support and Maintenance”), as set forth in this Section. Support and Maintenance shall include (i) telephone and email support from 8 am - 5 pm (EST) Monday-Friday (excluding holidays) for diagnosis of problems or performance deficiencies of the Software, and (ii) the use of commercially reasonable efforts to cure reported and reproducible Errors in the Software. An “Error” in the Software means a failure of the Software to perform materially in accordance with the Documentation. Customer acknowledges that all reported Errors may not be corrected. Appistry will use commercially reasonable efforts to pass through any manufacturer warranties to the extent feasible, for Products purchased in accordance with this Agreement.

Subject to Customer’s compliance with the terms of this Agreement, Appistry will provide Customer with such patches, updates, releases and new versions of the Software that are commercially released by Appistry at no additional charge to Appistry’s other customers receiving Support and Maintenance. All patches, updates, release and new versions provided hereunder will be considered part of the Software and subject to this Agreement. Notwithstanding anything herein to the contrary, the Support and Maintenance set forth herein, including patches, bug fixes and corrections, will be provided only for (i) the most current release version of the Software currently shipping to new customers, and (ii) any other versions of the Software released during the Term of the Agreement.

Appistry shall have no obligation to provide Support and Maintenance if: (i) the Product was not used in accordance with Appistry’s then current published specifications; (ii) the Product was altered, modified or corrected by Customer without Appistry’s prior written consent; (iii) Customer’s computer(s) malfunctioned and the malfunction caused a error or defect in the Software; or (iv) any other cause outside the control of Appistry.

Appistry’s support obligations hereunder are expressly conditioned on Customer: (i) using reasonable efforts to resolve internally any support questions prior to requesting Support and Maintenance services; (ii) reporting Errors promptly in writing in English; (iii) providing sufficient information to Appistry for Appistry to duplicate the circumstances indicating a reported Software defect or Error; (iv) promptly incorporating the bug fixes, patches, updates, upgrades, releases and new versions provided hereunder; and (v) providing all reasonable cooperation access and full information to Appistry with respect to Appistry’s furnishing of Support and Maintenance hereunder. Appistry hereby reserves the right to deny any service requests if, in Appistry’s good faith discretion, such service is not required to resolve Customer’s technical problem or if Customer has violated any of its obligations hereunder. Customer’s exclusive remedy and Appistry’s sole liability with respect to Software and Products will be to provide Support and Maintenance pursuant to this Section.

Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information, and (iv) for Customer as Receiving Party, not to use such Proprietary Information except as reasonably required to use the Products as permitted herein. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Appistry may collect data with respect to and report on aggregate measures of the Product’s performance and other measures to enhance the performance of the Products. Customer acknowledges that Appistry does not wish to receive any Proprietary Information from Customer that is not necessary for Appistry to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Appistry may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

Parties will have the right to disclose the existence but not the terms and conditions (including without limitation pricing) of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers, or to suppliers or licensors.

Indemnification. Appistry will defend Customer, and its officers, directors and employees, against any unaffiliated third party claim alleging that the Software violates a valid U.S. intellectual property right, and Appistry will pay all finally awarded to or settled amounts with such unaffiliated third party including related costs and expenses (including reasonable attorneys’ fees) in connection with such action, provided that Customer (i) notifies Appistry of such action within 10 days of first learning thereof, (ii) give Appistry sole control and authority of the defense and any settlement of such action, and (iii) provides all reasonable assistance requested by Appistry (at Appistry’s expense). Appistry shall have no liability for any settlement of any such action to which it has not expressly consented in writing. This “Indemnification” section states the entire liability of Appistry for any infringement of intellectual property rights.

Appistry will have no indemnification obligations with respect to (i) the use of any Products, Software, or any part thereof, in combination with products not supplied by Appistry, (ii) that are made in whole or in part in accordance with Customer’s specifications (iii) that are modified after shipment by Appistry, if the alleged infringement relates to such modification (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination (v) to the extent Customer continues the allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement (vi) where Customer's use of the Products or Software is incident to an infringement not resulting primarily from the Products or Software or is not strictly in accordance with the terms and conditions of this Agreement. Notwithstanding anything in this Agreement to the contrary, Appistry will have no indemnification obligations with respect to the Software or services from Hardware suppliers, third party software, or any open source software (i.e. software that is based upon or refers to an 'open source' license such as the GNU General Public License or other licenses listed at www.opensource.org.

Customer will indemnify Appistry and its suppliers, licensors, officers, directors and employees against any unaffiliated third party claim alleging that the Customer Data or any other claim of infringement or misappropriate excluded from Appistry’s indemnification obligations by this sentence and Customer will pay all finally awarded to or settled with such unaffiliated third party including related costs and expenses (including reasonable attorneys’ fees) in connection with such action, provided that Appistry (i) notifies Customer of such action within 10 days of first learning thereof, (ii) gives Customer sole control and authority of the defense and any settlement of such action, and (iii) provides all reasonable assistance requested by Customer (at Customer’s expense). Appistry shall have no liability for any settlement of any such action to which it has not expressly consented in writing.

If the Product, or parts thereof (including without limitation the Software), becomes, or in Appistry’s opinion may become, the subject of an infringement claim, Appistry may, at its option, (i) procure for Customer the right to continue using such Product, (ii) modify or replace such Products with substantially equivalent non-infringing products, or (iii) require the return of such Software and Product and refund to Customer a pro-rata portion of the purchase price of the Products and Software identified as defective based on a three-year straight line amortization of the purchase price. This “Indemnification” Section states the entire liability of Appistry for any infringement of intellectual property rights.

Warranty Disclaimer. EXCEPT AS OTHERWISE PROVIDED HEREIN, APPISTRY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY PRODUCTS OR SOFTWARE PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. ALL SUPPORT AND MAINTENANCE IS PROVIDED “AS IS.”

Limitation of Liability. IN NO EVENT WILL APPISTRY OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). APPISTRY’S TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL IN NO EVENT EXCEED THE PURCHASE PRICE RECEIVED FROM CUSTOMER FOR SUCH PRODUCTS SUBJECT TO THE CLAIM OR ACTION. THE LIMITATIONS SET FORTH IN THIS “LIMITATION OF LIABILITY” SECTION WILL APPLY EVEN IF APPISTRY OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Force Majeure. Neither Party will be liable to the other Party for any default (other than failure to pay money) hereunder, for so long as such default is caused by an event beyond such Party’s control, including, without limitation, acts or failures to act of the other Party; strikes, labor or civil disputes; component shortages; unavailability of transportation; fires, war, governmental requirements; and acts of God. In the event of threatened or actual nonperformance as a result of any of the above causes, the non-performing Party will exercise commercially reasonable efforts to avoid and cure such nonperformance.

Miscellaneous. Either party may assign or transfer this Agreement either to an Affiliate or to an Acquirer or in connection with a sale of substantially all of the business to which this relates without the other party’s prior written consent. Except as expressly provided for in this “Miscellaneous” Section, neither party may assign this Agreement. Any attempt to assign this Agreement in violation of this provision shall be void. "Affiliate" of a party shall mean an entity directly or indirectly controlling, controlled by or under common control with that party. Each of Appistry’s licensors and suppliers shall be entitled to enforce the rights of Appistry under this Agreement and those rights under this Agreement that are for the benefit of such licensor or supplier as if such licensor or supplier was a party to this Agreement.

All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service to the other party at the address set forth in the Order Form. All notices shall be in writing and shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above.

This Agreement shall be governed by Missouri law as it applies to contracts entered and performed in Missouri between two of its residents. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. During the Term, Customer authorizes Appistry to identify Customer as an Appistry customer on Appistry’s website and in Appistry’s marketing materials. No joint venture, partnership, employment, or agency relationship exists between Customer and Appistry as a result of this Agreement or use of the Product. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any modification or amendment of the terms and conditions of this Agreement shall be in writing signed by the parties.

This Agreement, together with any applicable Order Form or exhibits, comprises the entire agreement between Customer and Appistry regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. The following Sections shall survive any expiration or termination of this Agreement and Order Form: “Payment of Fees”, “Permitted Uses, Restrictions, and Ownership”, “Confidentiality, “Indemnification”, “Warranties and Warranty Disclaimer”, “Limitation of Liability” and “Miscellaneous”.

Back to Top

APPLIANCE AGREEMENT

Hardware Purchase. Customer agrees to purchase the hardware listed on the attached Order Form for the price and on the payment terms listed therein and in below.

All sales of any hardware purchased under the Order Form ("Hardware") are final. Customer may not return any Hardware. If Customer refuses delivery of Hardware that Customer ordered, Customer will be responsible for shipping and handling charges and additional return or restocking fees may apply.

Maintenance services being provided to Customer in connection with the Hardware are provided in accordance with the terms and conditions of the Commercial Terms of Sale ("CTS") and any and all applicable service descriptions set forth at www.dell.com/servicecontracts (the "Hardware Website") or otherwise provided to Customer in connection with the services to be provided (collectively, "Service Agreements"). Customer hereby acknowledges and agrees to be bound by the terms set forth therein and that Dell is a third party beneficiary to this agreement. Customer further acknowledges and agrees that (i) the CTS and any or all Service Agreements may be amended from time to time; (ii) Customer will monitor the Hardware Website for amendments to the CTS and Service Agreements; (iii) the posting of any amendments to the CTS and Service Agreements on the Hardware Website constitutes adequate notice of any such amendments; and (iv) Customer's continued use of any services provided by Dell after any such amendments to the CTS /or Service Agreements manifests Customer's consent to such amendments.

All non-Appistry software distributed with Hardware is provided subject to the End-User license agreement that is provided with the Hardware. Customer agrees that Customer and its End-Users will be bound by such license agreement.

Customer's order of Hardware is subject to acceptance or cancellation by Dell, in Dell's sole discretion.

Software License. Subject to Customer's compliance with all of the terms and conditions of this Agreement, Appistry hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the Appistry software installed on the Hardware ("Software") in accordance with the Documentation for the term specified on the order form. Except as expressly set forth herein, Appistry alone (and its licensors, where applicable) will retain all intellectual property rights in the Software, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software is hereby assigned to Appistry and maintained as Proprietary Information of Appistry. Notwithstanding anything contained herein, all Software is licensed and not sold.

All such Open Source Software is Third Party Software. The Open Source Software is not subject to the terms and conditions of this Agreement, except for this Section, “Software License”. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this document limits Client's rights under, or grants Client rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. In particular, nothing in this document restricts Client's right to copy, modify, and distribute that Open Source Software subject to the terms of the GPL and LGPL. As required by the terms of the GPL and LGPL, Appistry makes the Open Source Software (executable code and source code) provided under the GPL and LGPL, and Appistry's modifications to that Open Source Software, available by written request at the notice address below. Client shall be fully responsible for its compliance with all license terms, conditions or restrictions establish by Appistry's licensors and suppliers with respect to any Third Party Software including any Open Source Software.

Customer will receive a license key containing coded instructions which will enable the Software, or specific functionality of the software, to operate (i) for a specified term, and (ii) for a specified number of Processor Units. “Processor Units” are the sum of physical CPUs in a given machine (e.g. ‘sockets’) multiplied by the number of installations of the Software in concurrent use on that same machine. An individual “Processor Unit” shall mean either a single, physical CPU in a given machine or a virtual machine or operating system instance running on that machine. Appistry may suspend use of the Software in the event of expired license keys or violations of restrictions on the Software verified using the license keys.

Permitted Uses, Restrictions, and Ownership. Customer acknowledges that the internal structure, composition and organization of the Hardware and Software, constitute valuable trade secrets of Appistry and its suppliers and licensors. Accordingly, Customer shall not (and shall not permit others) to: (a) modify, adapt, alter, translate, or create derivative works from the Hardware or Software; (b) distribute, sublicense, lease, rent, loan, time share or otherwise transfer the Hardware or Software to or allow use thereof by any third party, or use the Products or Software for the benefit of any third party (including in any service for a third party); (c) exceed the number of Sequences authorized by Appistry in the applicable Order Form (d) use the Software for any purpose other than internal, noncommercial research purposes, including without limitation, for any commercial, resale, or benchmarking purposes; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Hardware or Software or otherwise attempt to discover the internal structure, organization or composition of the Hardware, except to the extent such a restriction is prohibited by applicable law notwithstanding this restriction; (f) remove, alter, or obscure in any way any proprietary rights notices or markings of Appistry or its suppliers or licensors on or within the Software or Hardware; or (g) copy the Software except as reasonably required for backup and archive purposes.

Customer acknowledges that Appistry and its suppliers and licensors retain, at all times, all right, title and interest in and to the Hardware and Software, the user manuals and other written materials for the Hardware and Software, and all related intellectual property rights (the “Documentation”).

Customer represents and warrants that Customer owns all Customer Data and that Customer Data does not violate any third party rights of any kind. Customer also represents and warrants that it shall comply with all laws and regulations, whether foreign or domestic, applicable to Customer with respect to the purchase and use of the Hardware and Software. Customer acknowledges and agrees that the Hardware purchased, and Software licensed, under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer will not export or re-export any Hardware purchased, or Software licensed, under this Agreement into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.

The Software and Documentation are “commercial items,” “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the United States Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

Customer may make a reasonable number of copies of the Software for back-up or disaster planning purposes. Any further attempt to copy the Software, or any portion thereof, will be deemed a material breach of this Agreement.

Acceptance, Title, and Risk of Loss. All sales are made F.O.B. point of shipment at Appistry’s designated facility, and title and risk of loss to the Hardware will pass to Customer at time of Appistry’s, or its designee's, tender of delivery of Hardware to the common carrier. The carrier shall be deemed Customer’s agent, and any claims for damages in shipment must be filed with the carrier. Appistry is authorized to designate a carrier pursuant to Appistry’s standard shipping practices unless otherwise specified in writing by Customer.

All Hardware and Software will be deemed accepted upon receipt by Customer unless Customer notifies Appistry within five (5) days of delivery of any Hardware or Software do not conform to the specifications in the Order Form.

Payment of Fees. Customer shall pay Appistry the applicable fees, including the purchase price for any Hardware and Support and Maintenance, set forth on the Order Form or otherwise agreed in writing between the parties (the “Fees”). Customer shall make all payments through the identified Payment Method and in accordance with the terms and conditions of this Agreement unless otherwise set forth on the Order Form and herein. If not otherwise specified in an Order Form, payments will be due within thirty (30) days of invoice. All payments with respect to Hardware must be made in advance of delivery.

Appistry may suspend Customer’s rights to use the Hardware if Customer is more than ten (10) days late on a payment. Customer shall pay a late fee on any amount that is not paid when due that shall be calculated at an interest rate of 1.5% per month on any such outstanding balance, or the maximum rate permitted by law, whichever is less, from the date due, plus all expenses of collection.

Customer will be billed, and payments will be made, in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Appistry’s net income.

Appistry retains a security interest in each item of Hardware until Customer pays Appistry in full for all Hardware provided hereunder. Customer agrees to execute all documents requested by Appistry (such as a UCC-1 or its equivalent) which may be necessary for Appistry to perfect a security interest in such Hardware.

Term and Termination. The terms and conditions of this Agreement become effective upon acceptance of the first Order Form. Unless earlier terminated as provided below, these terms and conditions (except for those provisions identified in “Miscellaneous” Section shall automatically expire when no Order Form is effective or has been effective for a twelve month period.

Either party may terminate these terms and conditions (and all outstanding Order Forms) upon thirty (30) days notice (but immediately in the case of a breach of Sections “Software license” and “Permitted Uses, Restrictions, and Ownership”). If the other party breaches any material term of these terms and conditions and fails to cure such breach within thirty (30) days after notice of such breach. Material breach by the Customer includes any breach of Customer’s payment obligations or unauthorized use by Customer of the Software or Hardware. In case Customer terminates due solely to material breach by Appistry, upon return of the Hardware and Software and all Documentation, Customer will be entitled (as its sole remedy) to a pro-rata refund of Fees paid in advance of the date Customer notifies Appistry of such breach.

Upon termination, Customer must return the Hardware to Appistry or its designee and destroy the Software, including all documentation. Customer understands and agrees that upon expiration, the License Key will expire, causing the Software to become inoperable.

Support and Front Line Maintenance. Subject to Customer’s compliance with the terms and conditions of this Agreement, Appistry shall use commercially reasonable efforts to provide front-line support and maintenance for the Hardware and Software (the “Support and Maintenance”), as set forth in this Section. Support and Maintenance shall include (i) telephone and email support from 8 am - 5 pm (EST) Monday-Friday (excluding holidays) for diagnosis of problems or performance deficiencies of the Software, and (ii) the use of commercially reasonable efforts to engage its service providers cure reported and reproducible Errors in the Software pursuant to maintenance agreements purchased by Customer hereunder. An “Error” in the Software means a failure of the Software to perform materially in accordance with the Documentation. Customer acknowledges that all reported Errors may not be corrected. Appistry will use commercially reasonable efforts to pass through any manufacturer warranties to the extent feasible, for Hardware purchased in accordance with this Agreement.

Subject to Customer’s compliance with the terms of this Agreement, Appistry will provide Customer with such patches, updates, releases and new versions of the Software that are commercially released by Appistry at no additional charge to Appistry’s other customers receiving Support and Maintenance. All patches, updates, release and new versions provided hereunder will be considered part of the Software and subject to this Agreement. Notwithstanding anything herein to the contrary, the Support and Maintenance set forth herein, including patches, bug fixes and corrections, will be provided only for (i) the most current release version of the Software currently shipping to new customers, and (ii) any other versions of the Software released during the Term of the Agreement.

Appistry shall have no obligation to provide Support and Maintenance if: (i) the Hardware or Software was not used in accordance with Appistry’s then current published specifications or those of the Hardware manufacturer; (ii) the Hardware or Software was altered, modified or corrected by Customer without Appistry’s prior written consent; (iii) Customer’s computer(s) malfunctioned and the malfunction caused a error or defect in the Software; or (iv) any other cause outside the control of Appistry.

Appistry’s support obligations hereunder are expressly conditioned on Customer: (i) using reasonable efforts to resolve internally any support questions prior to requesting Support and Maintenance services; (ii) reporting Errors promptly in writing in English; (iii) providing sufficient information to Appistry for Appistry to duplicate the circumstances indicating a reported Software defect or Error; (iv) promptly incorporating the bug fixes, patches, updates, upgrades, releases and new versions provided hereunder; and (v) providing all reasonable cooperation access and full information to Appistry with respect to Appistry’s furnishing of Support and Maintenance hereunder. Appistry hereby reserves the right to deny any service requests if, in Appistry’s good faith discretion, such service is not required to resolve Customer’s technical problem or if Customer has violated any of its obligations hereunder. Customer’s exclusive remedy and Appistry’s sole liability with respect to (y) Software will be to provide Support and Maintenance pursuant to this Section; and (z) Hardware will be to provide the pass through the maintenance obligations in the “Hardware Purchase” Section.

Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Appistry may collect data with respect to and report on aggregate measures of the Hardware’s performance and other measures to enhance the performance of the Hardware. Customer acknowledges that Appistry does not wish to receive any Proprietary Information from Customer that is not necessary for Appistry to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Appistry may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

Parties will have the right to disclose the existence but not the terms and conditions (including without limitation pricing) of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

Indemnification. Appistry will defend Customer, and its officers, directors and employees, against any unaffiliated third party claim alleging that the Software violates a valid U.S. intellectual property right, and Appistry will pay all finally awarded to or settled amounts with such unaffiliated third party including related costs and expenses (including reasonable attorneys’ fees) in connection with such action, provided that Customer (i) notifies Appistry of such action within ten (10) days of first learning thereof, (ii) give Appistry sole control and authority of the defense and any settlement of such action, and (iii) provides all reasonable assistance requested by Appistry (at Appistry’s expense). Appistry shall have no liability for any settlement of any such action to which it has not expressly consented in writing. This Section states the entire liability of Appistry for any infringement of intellectual property rights.

Appistry will have no indemnification obligations with respect to the use of any Hardware, Software, or any part thereof, (i) in combination with products not supplied by Appistry, (ii) that are made in whole or in part in accordance with Customer’s specifications (iii) that are modified after shipment by Appistry, if the alleged infringement relates to such modification (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination (v) to the extent Customer continues the allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement (vi) where Customer's use of the Hardware or Software is incident to an infringement not resulting primarily from the Hardware or Software or is not strictly in accordance with the terms and conditions of this Agreement. Notwithstanding anything in this Agreement to the contrary, Appistry will have no indemnification obligations with respect to Hardware, related software or services from Hardware suppliers, third party software, or any open source software (i.e. software that is based upon or refers to an 'open source' license such as the GNU General Public License or other licenses listed at www.opensource.org.

Customer will indemnify Appistry and its officers, directors and employees against any unaffiliated third party claim alleging that the Customer Data or any other claim of infringement or misappropriate excluded from Appistry’s indemnification obligations by this sentence and Customer will pay all finally awarded to or settled amounts with such unaffiliated third party including related costs and expenses (including reasonable attorneys’ fees) in connection with such action, provided that Appistry (i) notifies Customer of such action within ten (10) days of first learning thereof, (ii) gives Customer sole control and authority of the defense and any settlement of such action, and (iii) provides all reasonable assistance requested by Customer (at Customer’s expense). Appistry shall have no liability for any settlement of any such action to which it has not expressly consented in writing.

If the Hardware, or parts thereof (including without limitation the Software), becomes, or in Appistry’s opinion may become, the subject of an infringement claim, Appistry may, at its option, (i) procure for Customer the right to continue using such Hardware, (ii) modify or replace such Hardware with substantially equivalent non-infringing products, or (iii) require the return of such Software and Hardware and refund to Customer a pro-rata portion of the purchase price of the Hardware and Software identified as defective based on a three-year straight line amortization of the purchase price. This “Indemnification” Section states the entire liability of Appistry for any infringement of intellectual property rights.

Warranty Disclaimer. APPISTRY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY HARDWARE, SOFTWARE, SERVICES OR HARDWARE PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. ALL SUPPORT AND MAINTENANCE IS PROVIDED “AS IS.” THE LIMITED WARRANTIES APPLICABLE TO HARDWARE CAN BE FOUND AT WWW.DELL.COM/WARRANTY OR IN THE DOCUMENTATION PROVIDED WITH THE HARDWARE. APPISTRY'S SUPPLIERS MAKE NO OTHER WARRANTIES FOR DELL-BRANDED HARDWARE AND MAKES NO WARRANTIES WHATSOEVER FOR SERVICE, SOFTWARE, MAINTENANCE OR SUPPORT OR FOR NON-HARDWARE. SUCH HARDWARE, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY APPISTRY'S SUPPLIERS "AS IS" AND ANY THIRD-PARTY WARRANTIES, HARDWARE, SOFTWARE, SERVICES, MAINTENANCE OR SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY DELL. SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER. APPISTRY'S SUPPLIERS MAKE NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN DELL'S APPLICABLE DELL-BRANDED WARRANTY IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. DELL-BRANDED WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND DELL IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL DELL RECEIVES PAYMENT IN FULL. DELL MAY REQUEST CANCELLATION OF THIRD-PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE OR SUPPORT IF DELL DOES NOT RECEIVE PAYMENT. IF CUSTOMER PURCHASES THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.

Limitation of Liability. IN NO EVENT WILL APPISTRY OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). APPISTRY’S TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL IN NO EVENT EXCEED THE PURCHASE PRICE RECEIVED FROM CUSTOMER FOR SUCH HARDWARE SUBJECT TO THE CLAIM OR ACTION. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY EVEN IF APPISTRY OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Force Majeure. Neither Party will be liable to the other Party for any default (other than failure to pay money) hereunder, for so long as such default is caused by an event beyond such Party’s control, including, without limitation, acts or failures to act of the other Party; strikes, labor or civil disputes; component shortages; unavailability of transportation; fires, war, governmental requirements; and acts of God. In the event of threatened or actual nonperformance as a result of any of the above causes, the non-performing Party will exercise commercially reasonable efforts to avoid and cure such nonperformance.

Miscellaneous. Either party may assign or transfer these Terms either to an Affiliate or in connection with a sale of substantially all of the business to which this agreement relates without the other party’s prior written consent. Except as expressly provided for in this “Miscellaneous” Section, neither party may assign these Terms. Any attempt to assign these Terms in violation of this provision shall be void. "Affiliate" of a party shall mean an entity directly or indirectly controlling, controlled by or under common control with that party.

All notices required to be provided under these Terms must be delivered in writing by nationally recognized overnight delivery service to the other party at the address set forth in the Order Form. All notices shall be in writing and shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above.

This Agreement shall be governed by Missouri law as it applies to contracts entered and performed in Missouri between two of its residents. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of these Terms. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. During the Service Term, Customer authorizes Appistry to identify Customer as an Appistry Customer on Appistry’s website and in Appistry’s marketing materials. No joint venture, partnership, employment, or agency relationship exists between Customer and Appistry as a result of these Terms or use of the Service. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any modification or amendment of these Terms shall be in writing signed by the parties. This Agreement, together with any applicable Order Form or exhibits, comprises the entire agreement between Customer and Appistry regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. The following Sections shall survive any expiration or termination of these Terms: “Payment of Fees”, “Permitted Uses, Restrictions, and Ownership”, “Confidentiality, “Indemnification”, “Warranties and Warranty Disclaimer”, “Limitation of Liability” and “Miscellaneous”.

Back to Top

Patent and Trademark Portfolio

Appistry has been issued the following patents and trademarks.


Issued patents:

US 7,363,346

US 7,363,959

US 8,060,552

US 8,200,746


Issued Trademarks:

US 3,086,755         Appistry (goods)

US 3,225,726         Appistry (services)

US 3,225,761         Appistry (stylized)

US 3,723,689         CloudIQ

Share this Page