Last Revised: September 1, 2021
Welcome! We are Appcowear App Inc., a USA base company, or as we like to go by--“Appcowear”, “We”, “Our”, or “Us”. We design, create, service, and sell a variety of products and services incorporating technology into physical products such as cards, watch bands, stickers, and badges (the “Appcowear Products”) that collect, display, organize, and are accessible on Our software, mobile application, and/or Site (collectively, the “Platform”). Our mission is to change the way you connect to the world!
In agreeing, You represent that You have authority to bind Yourself and/or the entity or company You purport to represent. Capitalized terms are as defined throughout this Agreement. We may periodically supplement, modify, or revise this Agreement or any of the other Appcowear Policies, in Our sole discretion, the date of such modifications will be evidenced by the “Last Revised” designation at the top of this Agreement or the other Appcowear Policies.
2. Purchase and Sale; Price and Payment Terms.
(a) We will sell to You and You will, and do, purchase from us the Appcowear Products and Services (the “Goods”) in the quantities and at the Prices as ordered and set forth on the Order submitted to, and accepted by, Us. You acknowledge and agree that by placing an Order, You make an offer to purchase the Goods pursuant to the terms and conditions of this Agreement (and the other Appcowear Policies). An Order shall not be deemed effective until executed and accepted by Us. For the avoidance of doubt, We have the right, in our sole discretion, to accept or reject any Order. Except with respect to the basic Order terms, any variations made to the terms and conditions of this Agreement by You in any Order are void and have no effect. This Agreement is expressly limited to the terms set forth herein and the specific terms contained in an applicable Order. The terms of this Agreement prevail over any terms or conditions contained in any other document and expressly exclude any of Your general terms and conditions contained in any Order or other document issued by You. In the event of any conflict between the terms of this Agreement and the terms of any Order or any other document submitted by You, the terms of this Agreement prevail.
(b) You acknowledge and agree that You purchase the Goods from Us at the prices set forth on an applicable Order or if none, those advertised by Us at the time such Purchase Order is accepted by Us (the “Prices”). All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by You. You shall be responsible for all such charges, costs, and taxes; provided, that, You shall not be responsible for any taxes imposed on, or with respect to, Our income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) For all reoccurring Orders or subscriptions, You shall pay all invoiced amounts due to Us within 30 days from the date of Our invoice. You shall make all payments by wire transfer or check and in US dollars. You agree to pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You agree to reimburse Us for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. You agree to notify Us in writing of any dispute with any invoice within 5 business days from the date of such invoice. You will be deemed to have accepted all invoices for which We do not receive timely notification of disputes and shall pay all undisputed amounts due under such invoices within the period set forth above. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, You will continue performing You obligations under this Agreement during any such dispute, including, without limitation, Your obligation to pay all due and undisputed invoice amounts.
3. Term and Termination. This Agreement commences as of the date of Our acceptance of an Order and shall continue for the full Subscription Term set forth on each Order (the “Term”). In addition to any remedies that may be provided in this Agreement, We may terminate this Agreement with immediate effect upon written notice to You, if You: (i) fail to pay any amount when due under this Agreement and such failure continues for 10 days; (ii) have not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) become insolvent, file a petition for bankruptcy or commence or have commenced against You proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
4. Shipment and Delivery.
(a) Unless otherwise set forth in an Order, We will select the method of shipment of, and the carrier for, the Goods. We may, in Our sole discretion, without liability or penalty, make partial shipments of Goods and You shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order. Unless otherwise set forth on an Order, You will pay for and shall hold Us harmless from, all shipping charges and insurance costs.
(b) The Goods will be delivered to the address designated by You on the applicable Order (the “Delivery Point”) within a reasonable time after the acceptance by Us of an Order and using Our standard methods for packing and shipping such Goods, provided, however, that any custom Goods (e.g., Appcowear Products bearing a logo or design specifically ordered by You) shall be subject to additional processing and delivery times. Any time quoted by Us for delivery is an estimate only. We are not liable for or in respect of any loss or damage arising from any delay in filling any Order, failure to deliver, or delay in delivery. No delay in the shipment or delivery of any Goods relieves You of Your obligations under this Agreement.
(c) Title and risk of loss will pass to You upon delivery of the Goods at the Delivery Point. If, for any reason You, fail to accept delivery of any of the Goods at the Delivery Point, or if We are unable to deliver the Goods at the Delivery Point on such date because You have not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Goods will pass to You; (ii) the Goods shall be deemed to have been delivered; and (iii) We, at Our option, may store the Goods until You pick them up, whereupon You shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. Inspection and Rejection of Nonconforming Goods.
(a) You must inspect the Goods within 5 business days of delivery at the Delivery Point (“Inspection Period”) and either accept or, if the Goods are Nonconforming Goods, reject such Goods. You will be deemed to have accepted the Goods unless You notify Us in writing (e.g., firstname.lastname@example.org) of any Nonconforming Goods during the Inspection Period and furnishing Us with evidence or other documentation of such nonconformity. “Nonconforming Goods” means only the following: (i) product delivered is materially different than identified in the applicable Order; or (ii) the Good are otherwise defective.
(b) If You timely notify Us of any Nonconforming Goods, We will, in Our sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. You will then ship, the Nonconforming Goods to an address that We designate. If We exercise Our option to replace Nonconforming Goods, We will, after receiving Your return shipment of Nonconforming Goods, ship to You, the replaced Goods to the Delivery Point.
(c) You acknowledge and agree that the remedies set forth in Section 5(b) are Your exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to You are made on a one-way basis and You have no right to return Goods purchased under this Agreement.
6. No Setoff. You do not have any right to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Us, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to You by Us, whether relating to Our breach or non-performance of this Agreement or any other agreement between the Parties, or otherwise.
7. Intellectual Property Rights.
(a) You acknowledge and agree that: (i) any and all Intellectual Property Rights related to, or derived from (e.g., data), the Goods or the Appcowear Platform are the sole and exclusive property of Us and that You receive no such ownership interest in any such Intellectual Property Rights; (ii) if You acquire any Intellectual Property Rights, rights in or relating to any Goods or the Appcowear Platform (including any rights in any trademarks, derivative works, or improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Us, as the case may be, without further action by either of the Parties; and (iii) You shall use Our Intellectual Property Rights solely for purposes of using the Goods and the Appcowear Platform under this Agreement and only in accordance with this Agreement, Terms of Service as to the Appcowear Platform, Our instructions, and other Appcowear Policies. For the avoidance of doubt, We will own all data collected, generated, created, or obtained through the use of the Goods or the Appcowear Platform and any such Good’s interaction with the Appcowear Platform.
(b) Buyer shall not: (i) take any action that might interfere with any of Our rights in or to Our Intellectual Property Rights; (ii) challenge any right, title, or interest of Us in or to Our Intellectual Property Rights; or (iii) copy, modify, or create derivative works of software or Intellectual Property Rights related to the Goods, the Appcowear Platform, or any other Services, in whole or in part.
(c) To the extent You order Goods bearing a design or logo provided by You, You (i) hereby grant to Us a non-exclusive, fully-paid up, and royalty-free license to use the design or logo in performance of this Agreement and (ii) represent and warrant (and shall hold Us harmless) that such design or logo does not infringe on any Intellectual Property Rights of any third-party.
(d) For the purposes of this Agreement, “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or Governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and (v) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
(a) We warrant to You that (i) no Goods will be Nonconforming Goods, (ii) for a period of 1-year from the date of shipment of the Goods (the “Warranty Period”), that such Goods will be free from significant defects in material and workmanship that render the Good unusable. Notwithstanding the foregoing, the warranties set forth above shall not apply where the Goods have been: (x) subjected to abuse, misuse, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions published by Us, (y) reconstructed, repaired, or altered by anyone other than Us, or (z) used with a product or hardware that has not been previously approved by Us in writing.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), APPCOWEAR DEVICE AND APP MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) We shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) You give Us written notice of the defect, reasonably described, within 10 days of the time when You discover or ought to have discovered the defect; (ii) We are given a reasonable opportunity after receiving the notice to examine such Goods and You (if requested to do so by Us) return such Goods to Our designated location at Our cost for the examination to take place there; and (iii) We reasonably verify and agree Your claim that the Goods are defective.
(d) Subject to Section 8(a)(x) – (z) and Section 8(c) above, with respect to any such Goods during the Warranty Period, We shall, in Our sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro-rata contract rate provided that, if We so request, You will, at Our expense, return such Goods to Us.
(e) THE REMEDIES SET FORTH IN SECTION 8(d) SHALL BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND APPCOWEAR’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
9. Limitation of Liability.
(a) IN NO EVENT SHALL APPCOWEAR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT APPCOWEAR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL APPCOWEAR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO APPCOWEAR FOR THE DEFECTIVE OR NON-CONFORMING GOODS SOLD HEREUNDER.
10. Indemnification. You shall indemnify, defend, and hold harmless Us and Our officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to, arising out of, or resulting from, any claim of a third party arising out of or occurring in connection with the products purchased from Us or Your negligence, willful misconduct, or breach of this Agreement or the other Appcowear Policies.
11. Confidential Information. All non-public, confidential or proprietary information of Us that is disclosed to You under this Agreement (e.g., through an Order or otherwise), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Us in writing. Upon Our request, You shall promptly return all documents and other materials received from Us. We shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) lawfully known to You at the time of disclosure; or (c) rightfully obtained by You on a non-confidential basis from a third party.
12. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, legal partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Any person employed or engaged by a Party shall be that Party’s employees or contractors.
13. Assignment and Delegation. You shall not assign any of Your rights or delegate any of You obligations hereunder without the prior written consent of Us. Any purported assignment in violation of this Section 13 shall be null and void.
14. Binding Arbitration; Waiver of Litigation and Class Action Arbitration.
BY ACCEPTING THE TERMS OF THIS AGREEMENT YOU AND US EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. This Section 14 offers a streamlined way to resolve disputes between Us and You if they arise. Most of your concerns can be resolved quickly and satisfactorily by contacting our support team at email@example.com. If We cannot resolve your concern, You and Us agree to be bound by the procedure in this Section to resolve disputes between us. This Section is an agreement between You and Us, and applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries, and assigns. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section. This Section shall be interpreted broadly and shall survive termination of this Agreement.
(a) All disputes, claims, or controversies arising out of or relating to this Agreement, any Appcowear Product or service and its marketing, or the relationship between You and Us ("Disputes") shall be determined exclusively by binding arbitration. This includes claims that accrued before You entered into this Agreement. The only Disputes not covered by this Section are claims (i) regarding the infringement, protection, or validity of Our or Our licensors' trade secrets or copyright, trademark, or patent rights; (ii) if you reside in Australia, to enforce a statutory consumer right under Australia consumer law; and (iii) brought in small claims court (which shall be brought in the State Of Florida).
(b) You and Us shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other ("Notice of Dispute"). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. We will send Our Notice of Dispute to Your billing or email address. You will send your Notice of Dispute to: Appcowear APP INC., firstname.lastname@example.org ATTENTION: Legal Department.
(c) If You and Us cannot resolve a Dispute informally, you or Us may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate and applicable, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing and shall provide a statement of reasons if requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Us may litigate in court to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Arbitration will take place in the State Of Florida.
(d) YOU AND Appcowear AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not consolidate another person's claims with Your claims and shall not preside over any type of representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
15. Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law.
16. Severability. If any term or provision of this Agreement (or any of the Appcowear Policies) is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, this Agreement may be modified to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17. No Waiver or Amendment. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by either Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. No amendment to this Agreement (or an Order) is effective unless it is in writing, identified as an amendment to this Agreement, and signed by each Party.
18. Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement in writing and addressed to the other Party at the addresses set forth on the applicable Order (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), by email (with confirmation of transmission), or by certified or registered mail (in each applicable case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the notice has complied with the requirements of this Section.
19. Interpretation. The words “include” or “including,” and words of similar import and used herein shall not be deemed to be terms of limitation but rather shall be deemed to be followed in each case by the words “without limitation.” The term “or” shall be deemed to mean “and/or”.
20. Entire Agreement. This Agreement, the applicable Order, and the Appcowear Policies, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter.