APPSMITH SUBSCRIPTION AGREEMENT
PLEASE READ THIS APPSMITH SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY APPSMITH, INC. (“APPSMITH”). BY MUTUALLY EXECUTING OR ACCEPTING ONE OR MORE ORDERS WITH APPSMITH WHICH REFERENCE THIS AGREEMENT (EACH, AN “ORDER FORM”), YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THIS AGREEMENT (TOGETHER WITH ALL ORDER FORMS) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA APPSMITH’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY APPSMITH SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. CUSTOMER AGREES THAT IT HAS READ AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
APPSMITH reserves the right to change, modify or remove portions of this AGREEMENT at any time. APPSMITH will provide you with 75 days’ notice prior to making any material changes by posting a notice on APPSMITH’S website, by sending you an email and/or by some other means. The most current version of the Standard Contract will be posted at https://www.appsmith.com/terms-and-conditions.
Certain capitalized terms used herein are set forth below, other terms shall have the respective meanings set forth elsewhere in this Agreement or the applicable Order Form.
“Application” means Customer’s application that is developed using the Platform.
“Community Edition” means the features and functionality of the Platform included in the generally available open source version of the Platform.
“Enterprise Edition” means the features and functionality of the Platform that require an enterprise key to access and use.
“Fee(s)” means the fees set forth on an applicable Order Form.
“Initial Term” means one (1) year from the Effective Date unless a different period is specified on an applicable Order Form.
“Order Form” means a Appsmith Order Form that has been signed and executed by both Customer and Appsmith that incorporates these Terms.
“Platform” means Appsmith application development platform (in both object code and source code form) and related documentation as specified on the applicable Order Form, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise generally made available by Appsmith in connection with the Services without additional charge. Platform shall refer to the Community Edition and the Enterprise Edition either individually or collectively, as the context applies.
“Renewal Term(s)” means a period of one (1) year from the end of the Initial Term or any Renewal Term, unless this Agreement is otherwise terminated as set forth herein.
“Services” means (a) Appsmith’s provision of technical support, as described in Section 2.2 below; and (b) other services as Appsmith may offer to licensees of the Appsmith software as described on the applicable Order Form.
“Term” means the Initial Term or a Renewal Term, as applicable.
“Third Party Works” means third party software, source code or technology licensed to Appsmith and made available to Customer.
“Usage” means Customer’s predicted usage of the Platform as set forth on an applicable Order Form.
2. LICENSES AND SERVICES.
2.1 Platform License and Restrictions.
2.1.1 Community Edition. The Community Edition is licensed to Customer pursuant to the Apache License 2.0 located at https://github.com/appsmithorg/appsmith/blob/release/LICENSE (“Community License”). The terms and conditions of the Community License are incorporated herein. In the event of a conflict between the terms and conditions of this Agreement and the Community License, this Agreement shall control.
2.1.2 Enterprise Edition. During the Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Appsmith grants to Customer a non-exclusive, non-transferable, non-sublicensable license to install on servers/nodes/clusters owned or operated by or on behalf of Customer, access and use, the Enterprise Edition of the Platform for Customer’s internal business purposes to create, modify and deploy Applications.Customer agrees that the Platform is for Customer’s internal use (and not for resale or for the benefit of any third party).
2.1.3 Third Party Works. Third Party Works made available by Appsmith shall be subject to the applicable licenses, restrictions, terms and conditions as made available in connection with the applicable Third Party Work.
2.1.4 Restrictions. Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform (except and solely to the extent that such restrictions are prohibited by applicable statutory law); (b) modify, translate, or create derivative works based on the Platform; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Platform; (d) use the Platform for any benchmarking, timesharing or service bureau purposes or otherwise for the benefit of a third party; or (e) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof. Customer will use the Platform only in compliance with (i) the applicable Order Form and documentation, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations, including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise.
2.1.5 Usage Information. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that the Platform may be configured to collect and send to Appsmith usage data and telemetry regarding Customer’s use of the Platform (“Usage Data”), and Company will be free (during and after the Term hereof) to use Usage Information (a) to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Appsmith offerings and (b) to verify Customer’s use of the Platform and payment of applicable Fees. In the event that the Platform is not configured to automatically provide Usage Data to Appsmith, Customer agrees that Customer shall provide applicable Usage Data via email or other electronic means on a monthly basis or as otherwise requested by Appsmith using tools or instructions provided by Appsmith.
2.2.1 Delivery, Installation and Configuration. Appsmith will make the Platform available for download by electronic delivery. Customer will be responsible for installing and configuring the Platform in an environment owned or controlled by Customer. Appsmith may provide reasonable assistance in connection with such installation and configuration.
2.2.2 Services. Appsmith will use reasonable commercial efforts to provide basic support services for the Platform consisting of:
Technical support provided by e-mail (firstname.lastname@example.org) or our official Discord channel during our normal business hours;
Commercially reasonable efforts to provide fixes, updates or work-arounds for identified errors in the unmodified, then-current release of the Platform in accordance with Appsmith’s standard procedures; and
Platform updates (including service packs and hot fixes) that Appsmith, in its discretion, makes generally available without additional charge.
2.2.3 Exclusions. Appsmith shall have no obligation to support: (a) versions of the Platform other than the current release; (b) modified or altered versions of the Platform or any portion of the Platform incorporated with or into other software; or (c) Platform problems caused by Customer’s negligence, abuse or misapplication, use of platform other than as specified in Appsmith’s documentation or other causes beyond the control of Appsmith
3. PAYMENT; TAXES.
Fees are due and payable as set forth in an applicable Order Form. Appsmith will invoice Customer as set forth in the Order Form. All Fees under this Agreement are due upon the date(s) set forth in this Agreement and are payable within thirty (30) days from the date of Appsmith’s invoice. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in currency specified on the Order Form and are nonrefundable. Customer will report its actual Usage data on a monthly basis, to ensure compliance with all applicable license rights and restrictions All payments will be made in accordance with payment terms in the Order Form.
3.2 Late Payment.
Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and 1.5% per month (18% per annum) on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid.
All Fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Customer shall be responsible for payment of such taxes and duties of any kind, provided however that Appsmith shall be responsible for payment of taxes levied or imposed based upon Appsmith’s net income. Without limitation, Customer will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Appsmith with an exemption certificate acceptable to the applicable authorities.
4. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and continue for the Initial Term unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive Renewal Terms, unless either party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the applicable Term.
4.2 Termination for Breach.
Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days after receipt of notice of material breach.
Sections 1, 3, 4.3, 5, 6.4, 7, 8, 9 and 10 of this Agreement shall survive the termination of this Agreement for any reason.
5. PROPRIETARY RIGHTS.
5.1 Appsmith Rights.
Except for the licenses explicitly granted in this Agreement, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Platform and the Services, including derivative works, are and shall remain the exclusive property of Appsmith and/or its suppliers and licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Appsmith and its suppliers reserve any and all rights not expressly granted in this Agreement. Appsmith is a trademark of Appsmith, and shall not be used by Customer without Appsmith’s express authorization.
5.2 Customer’s Ownership Rights.
Customer shall retain all right, title and interest in and to Applications created utilizing the Platform and all Customer data, content, information and materials stored or processed by the Platform (“Customer Data”). Nothing in this Agreement will confer on Appsmith any right of ownership or interest in any Customer Data, or the intellectual property rights therein.
To the extent Customer provides Appsmith with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Appsmith shall own all right, title and interest in and to such Feedback (and Customer hereby makes and agrees to make all assignments necessary to achieve such ownership).
6. WARRANTY AND DISCLAIMER.
Appsmith warrants to Customer that: (a) the Platform will materially perform in accordance with the applicable documentation for ninety (90) days after initial delivery to Customer; and (b) any Services performed by Appsmith under this Agreement will be performed in a workmanlike manner, in accordance with general industry standards.
Appsmith’s warranties in this Section 6 do not extend to problems that result from: (a) Customer’s failure to implement updates issued by Appsmith during the warranty period; (b) any alterations or additions to the Platform not performed by or at the direction of Appsmith; (c) failures that are not reproducible by Appsmith in a stand-alone environment; (d) Customer’s operation of the Platform in violation of this Agreement or not in accordance with its documentation; (e) failures caused by software, hardware or products not licensed or provided by Appsmith; or (f) Third Party Works.
In the event of a breach of a warranty under this Section 6, Appsmith will, at its discretion and cost, either repair, replace or re-perform the Platform or Services or refund a portion of Fees previously paid to Appsmith that are associated with the defective Platform or Services. The foregoing states Customer’s exclusive remedy, and Appsmith’s sole liability, arising in connection with the limited warranties herein.
EXCEPT AS SET FORTH IN THIS AGREEMENT, THE PLATFORM AND SERVICES ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND. APPSMITH AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APPSMITH AND ITS SUPPLIERS DO NOT WARRANT THAT THE PLATFORM OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
Each party (“Receiving Party”) agrees that all code, inventions, algorithms, know-how and ideas and all other business, technical and financial information it obtains from the other party (“Disclosing Party”) are the confidential property of the disclosing party (“Confidential Information” of the Disclosing Party). The Receiving Party shall hold in confidence and not use or disclose any Confidential Information of the Disclosing Party other than in connection with performing its obligations or exercising its rights pursuant to this Agreement. Confidential Information shall not include information that Receiving Party can document: (a) is generally available to the public other than through breach of this Agreement; (b) is rightfully disclosed to Receiving Party by a third party without restriction; (c) was in Receiving Party’s rightful possession without restriction prior to the disclosure to Receiving Party and was not obtained by Receiving Party either directly or indirectly from Disclosing Party; or (d) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. Upon expiration or termination of this Agreement for any reason, each party will return all copies of all Confidential Information of the other party in its possession or control. Receiving Party may disclose Confidential Information as required by government or judicial order, provided Receiving Party gives Disclosing Party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.
Customer will defend, indemnify and hold Appsmith harmless against any Losses arising from any such claim or allegation or in connection with (a) Customer’s use of the Platform and Services in violation of this Agreement, (b) Customer’s breach of this Agreement, including Customer’s breach of any covenant, representation, warranty, term, or condition set forth herein, (c) Customer Data, or (d) Customer’s violation of any law or regulation or of any third party rights, including infringement, libel, misappropriation, or other violation of any third party’s intellectual property or other legal rights.
9. LIMITATION OF LIABILITY.
EXCEPT FOR BREACHES OF SECTION 7 (CONFIDENTIAL INFORMATION), CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 8 (INDEMNIFICATION), OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR TECHNOLOGY.
9.2 Aggregate Liability.
EXCEPT FOR BREACHES OF SECTION 7 (CONFIDENTIAL INFORMATION), CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 8 (INDEMNIFICATION), OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAYABLE TO APPSMITH (IN THE CASE OF CUSTOMER) OR ACTUALLY PAID TO APPSMITH BY CUSTOMER (IN THE CASE OF APPSMITH) DURING THE SIX (6) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.
If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Appsmith’s prior consent (at Appsmith’s sole discretion). Any attempt by Customer to assign this Agreement without Appsmith’s prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third party beneficiaries of this Agreement.
10.3 No Waiver; Limitations.
Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.
10.4 Governing Law.
This Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in New Castle County, Delaware. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.
Unless otherwise agreed to by the parties, any notice, authorization, or consent required or permitted to be given or delivered under this Agreement shall be in writing, in English and addressed and delivered to Appsmith at the address specified on the Appsmith Website or to Customer at the address specified in the applicable Order Form. Notices shall be deemed to have been received by a party, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one business day after being sent electronically with a confirmed delivery receipt. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
10.6 Export Law Assurances.
Customer acknowledges that the Platform may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the Platform. Customer agrees that the Platform is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
10.7 U.S. Government Restricted Rights.
If the Platform is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Platform and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.The Platform and related documentation are provided with “Restricted Rights” (as defined in FAR section 52.227-19). Use, duplication or disclosure by the United States Government is subject to the restrictions set forth in Federal Acquisition Regulation (“FAR”) FAR 12.212 and DFAR 227.7202. No other FAR, or Defense Federal Acquisition Regulation (“DFAR”) or any other governmental or other terms apply unless explicitly set forth on the Order Form.
10.8 Force Majeure.
Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, epidemics, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 or 7, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship without obtaining the express prior written consent of the other party. Notwithstanding anything to the contrary in this Agreement, Appsmith may reference Customer as a Appsmith Platform user in its marketing and promotional materials, including but not limited to the Appsmith website. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Appsmith.
10.11 Entire Agreement.
This Agreement together with all applicable Order Forms and the Support Services comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Appsmith’s acceptance of any document submitted by Customer to Appsmith shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Appsmith.