accessing . . .

 Terms of Use 

BY USING OUR SERVICES OR OUR WEBSITES, YOU ACCEPT THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN YOU MAY NOT USE APPLICA'S SERVICES OR OUR WEBSITES. IF YOU REGISTER FOR A FREE TRIAL OF APPLICA SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. IF YOU ARE A CO-BRANDER USING APPLICA'S CO-BRANDING SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL GOVERN YOUR USE OF APPLICA SERVICES.

WE MAY MODIFY, UPDATE OR DELETE PROVISIONS OF THESE TERMS BY POSTING THOSE CHANGES ON OUR WEBSITE. YOUR CONTINUED USE OF APPLICA'S SERVICES AND/OR OUR WEBSITES AFTER SUCH CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH CHANGES TO THESE TERMS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF SERVICE.

In these Terms, “Applica” “We”, “Us” or “Our” will refer to Boston Digital LLC, d/b/a Applica Solutions, HomeWizard, Car-Wizard, Pet-Wizard, and MedEtips. The terms “You” or “Your” or “Customer” will refer to you. You and Applica are each individually referred to as a “Party” and collectively as “Parties.”

Article I. Definitions 

“Authorized User or User” means You and any of Your employees, consultants, contractors or agents authorized to access and use the Applica Service on behalf of Your business, in each case subject to such person's agreement to be bound by these Terms. 

“Applica Materials” means any documentation, user guides, or other similar materials provided by Applica to You in connection with Your use of the Applica Service

“Applica Services” means any of the Applica set of software-as-a-service (SaaS) solutions that are developed, operated, and maintained by Applica (and its third party service providers) and that are subscribed to through a Applica branded or controlled website (or authorized Applica partner website) or that we otherwise make available to You that includes a link to or makes reference to these Terms.

“Subscription” means Your right to use Applica Services that You have subscribed to or that we otherwise make available to You.

“Subscription Agreement” means these Terms and any online or written subscription order form or contract for the Applica Services accepted by You either during an online subscription process or separately signed by You and submitted to Applica, and any future purchase order, contract, or order form that makes reference to these Terms.

“Subscription Term” means the use term for the Applica Service pursuant to Your Subscription Agreement and any additional renewals of such term.

“Third Party Services” means the products, content, including software code, software-as-a-service offerings, implementation, training, content or other professional services that an Applica partner or other third party may make available in connection with the Applica Service or on the Applica websites or via a link to a third party website.

“Your Data” means registration information and other information relating to Your Authorized Users, and information relating to Your customers, contacts, business, marketing, and finances, and any similar data submitted by You, the persons to whom the data relates, or by Authorized Users to the Applica Service.

Article II. Your Account, Use Rights, Responsibilities, and Restrictions 

2.1 Your Applica Account. You must be at least 18 years of age to purchase or use the Applica Services. To use the Applica Services You will be asked to register for an account. When You create an account for the Applica Services, You must provide accurate account information and promptly update this information if it changes. By creating an Applica account, You consent to receive electronic communications from Applica, via email, telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) including marketing messages, newsletters, and other information regarding Applica Services and products. Further, You consent to receive such phone calls at the telephone number You entered on our website. You do not need to agree to this provision in order to use our websites or purchase the Applica Services, and if You would like us not to contact You by telephone, please contact support at (508) 281-2050. You may always opt-out of receiving future commercial emails and marketing communications from Applica by clicking on the “unsubscribe” link within any emails received. Please note that Your request not to receive unsolicited commercial emails from Applica will not apply to messages that You request or that are transactional in nature as they are related to Your Applica Subscription. For example, Applica may contact You concerning any services purchased, requested, or received from Applica, even if You opt out of receiving unsolicited commercial messages. You are responsible for all activity under Your account using Your credentials. You are responsible for maintaining the security of Your account. Do not share Your account passwords and promptly notify Applica of any known or suspected unauthorized use or breach of the security of Your account. 

2.2 Use Rights, Responsibilities, Restrictions. Subject to these Terms, Applica grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Applica Services (and any Applica Materials provided to You) and to perform contact management, automated marketing, lead tracking, and other related business functions included in the Applica Services, subject to the following restrictions:

(i) except as expressly permitted herein or in a separate partner agreement between You and Applica, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make any part of the Applica Services or the Applica Materials available to any third party;

(ii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Applica Services or Applica Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Applica Services or Applica Materials in order to build a similar or competitive product or service;

(iii) if you are using an Applica Services that includes emailing on Your behalf, then for email addresses which Applica facilitates capturing for You through web page signups, website widgets, etc., You will not send unsolicited emails (spam) to these email addresses.

(iv) Your use of the Applica Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Subscription Agreement for the level of Subscription purchased by You, and You shall not manipulate data in an attempt to circumvent these limits;

(v) Your use of the Applica Service must not cause undue strain or stress on the Applica network through excessive API calls or other non-standard use;

(vi) You will be responsible for each Authorized User’s use of Your Applica Services and for their compliance with these Terms.

If you are using any of Applica's emailing services:

(i) APPLICA DOES NOT ALLOW APPLICA SERVICES TO BE USED FOR SENDING SPAM. YOU AGREE TO ONLY ADD EMAIL ADDRESSES TO YOUR ACCOUNT FOR WHOM YOU HAVE AN EXISTING RELATIONSHIP. ABSOLUTELY NO PURCHASED EMAIL LISTS OR EMAIL ADDRESSES WHERE THERE IS NO EXISTING RELATIONSHIP MAY BE ADDED BY YOU TO YOUR ACCOUNT. TO PROTECT THE INTEGRITY AND AVOID THE RISK OF OUR EMAIL SERVER BEING BLACKLISTED, APPLICA RESERVES THE RIGHT TO REMOVE ANY EMAIL ADDRESSES THAT APPEAR TO BE IN VIOLATION.

(ii) Applica sends emails on Your behalf to the email addresses to Your subscribers, using the 'from' email address and alias that You have provided. If this email address is an ISP address, such as but not limited to gmail, yahoo, aol, etc., then Applica has the right to substitute an email address that is more compatible with mass emailing sending, such as admin@home-wizard.com or admin@car-wizard.com. If You don't provide an email address, then an admin email address will be used for You. The alias that You provide must match Your actual business or personal name;

(iii) to be in compliance with CAN-SPAM regulations, Your business contact information will appear at the bottom of all emails sent on your behalf. The contact information must be accurate and current, and you will not do anything to prevent your contact information from being displayed;

(iv) Applica will actively manage the email addresses that You provide, and will provide Your recipients with readily accessible links to allow unsubscribing, in accordance with CAN-SPAM regulations. If requests for unsubscribing come directly to You, You will unsubscribe them in Your Applica dashboard;

(v) if Applica finds that an email address is non-deliverable, this email address will be removed from Your subscriber list, and this will be indicated when Your subscriber list is displayed in your Applica dashboard;

(vi) Applica provides multiple ways for You to add email addresses to your account. Applica may reject submitted lists that are poorly formatted or unreadable;

(vii) You will not add any content or code that interferes with Applica's ability to display content or deliver emailings on Your behalf.

(viii) Applica makes best efforts to ensure compatibility of its emailings with common browsers, devices, etc. But Applica is not responsible for compatibility issues with any particular system or media.

(ix) if You are using Applica's service that allows you to co-brand your emailings with Your business partners, Applica is not responsible for the content added by Your partners, however, Applica shall have the right to remove content which We deem is inappropriate.

Applica may rely on third-party providers for performing certain of Our Services for You. These third parties may include, but are not limited to, Facebook, LinkedIn, server hosting companies, email processing servers, and the U.S. Consumer Product Safety Commission (CPSC). Applica makes our best efforts to select and integrate with such third party providers to provide the most reliable service to You. We will act expeditiously to work with these third parties to attempt to remedy problems caused by their interruptions, changes in their operations, errors, or how our Services integrate with their operations. However, We are not responsible for damages or losses caused by such problems related to third parties.

Applica provides Services that may allow You to add Your own custom messaging and/or advertising in the content delivered by Our Services for You. Such Services may included, but are not limited to, social media posting, eNewsletters, emailings, and an automated BLOG. You will not include content nor code that interferes with the display or performance of Our Services. Custom messaging or advertising deemed by Us to be inappropriate may be removed by Us. Continued violations may result in the termination of Your Subscription.

Applica provides Services that may allow you to download computer code which includes, but not limited to, web widgets, hyperlinks, and icons. You will not alter any of this code and You will discontinue the uses of this code at the end of the term of Our Services. Applica makes best efforts to ensure compatibility of its downloadable code with common browsers, devices, etc. But Applica is not responsible for compatibility issues with any particular system or media. Use of this downloadable code on your system is at your own risk.

Our Services to You may include enabling You to co-brand with your business partners the eNewsletters that We provide for Your subscribers. Applica will not be responsible for the content added by your co-branders, but may remove any content that is deemed inappropriate. To use our co-branding services, Your co-branders are required to agree to abide by the applicable provisions of these Terms of Use.

Through Our Services and websites, which include but are not limited to Applica-Solutions.com, HomeWizard.com, Car-Wizard.com, Pet-Wizard.com, and MedEtips.com, We provide content such as text, graphics, images, and other materials created by Applica or obtained from Our licensors, that are for informational purposes only. Our content is not intended to be a substitute for professional home, auto, veterinary, financial, marketing, or medical advice, diagnosis, or treatment. Never disregard professional advice or delay in seeking it because of something you have read in Applica's content.

Applica's content mentioned above is protected by the copyright laws in the United States and in foreign countries. Applica authorizes You to use our content beyond Our Services if you include a copyright notice located at the end of the material, such as, "©2020, APPLICA Solutions. All rights reserved." Title to the content remains with Applica or Our licensors. Any use of the content not expressly permitted by these Terms of Use is a breach of these Terms and may violate copyright, trademark, and other laws. Content and other features are subject to change or termination without notice in the editorial discretion of Applica. All rights not expressly granted herein are reserved to Applica and its licensors.

Applica's content may include links to helpful products or services. You shall not be entitled to receive any commissions, royalties, or payments for such products or services.

To realize the fullest value of the Applica Services, Your participation and effort are needed. Depending on Your skill set and available time, You may be required to use additional resources to plan and implement marketing campaigns; create content and supporting the interactions of the Services with Your other sales and marketing tools.

2.3 No Legal or Financial Advice. You acknowledge that from time to time Applica may provide You with marketing information and other coaching, templates, frequently asked questions, and tips on best practices and financial and legal topics. Such information does not constitute, and should not be considered a substitute for financial or legal advice. We do not warrant or guarantee that use of or compliance with such information will be sufficient to comply with Your obligations under these Terms, applicable law, or with third party requirements. Although we have no obligation to monitor the content provided by You or Your use of the Services, we may do so and may block any messages or campaigns, remove any content, including surveys, campaigns, promotions, business content, or otherwise prohibit any use of the Services that we believe may be in violation of these Terms, Acceptable Use Policy, applicable law, and any other relevant use documentation and restrictions made available to You. In no case, will the foregoing make Us responsible or liable for compliance with any such laws or obligations, for which You remain solely responsible and liable.

2.4 Technical Support. During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and other technical support resources for the Applica Services that may be offered by Applica from time-to-time.

2.5 Intellectual Property Rights. Your subscription is a right of access to and use of an online product, the Applica Services. You agree that You receive only a limited right to use the Applica Services and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to You under this Agreement. You acknowledge and agree that Applica retains all proprietary rights in and to the Applica Services, the Applica Materials, and the Applica websites which we may update from time-to-time. Applica also retains all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Applica Services and Applica Materials (including application development, business and technical methodologies, and implementation and business processes, used by Applica to develop or provide the Applica Services or Applica Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted to You under these Terms, You do not acquire any interest in the Applica Services or Applica Materials. Accordingly, You do not have any right to obtain a copy of the software that supports any Applica Service and that Applica at its option may make updates, bug fixes, modifications or improvements to the Applica Services from time-to-time.

Applica’s intellectual property also includes Our user interface display and usability platform comprised in part of the layout, color scheme, HTML pages and source code, etc. You are expressly prohibited from using these for any purpose outside of the intended design and implementation of Your authorized use of the Applica Services. Any replication or use of Applica intellectual property for any purpose designed or intended to compete with Applica Services is strictly prohibited.

You agree that Applica can use and disseminate any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Applica Services or the Applica Materials for any purpose without restriction, obligation or compensation to You. Such information is non-confidential and will become the sole property of Applica and will not be considered Your Confidential Information.

2.6 Free Trial. If we offer You a free trial, the specific terms of Your free trial will be provided in the marketing materials describing the particular trial or at sign up. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.

2.7 Changes to the Services. Applica reserves the right to modify, add to, discontinue, and/or retire any Applica Service and/or any feature of an Applica Service at any time. We will make reasonable attempts to provide You with notice of such modifications by posting them on our website. We have no obligation to provide direct notice to You of any such changes. If You object to such change, Your sole remedy shall be to terminate the Applica Services pursuant to Article VI below. If we discontinue any Service You are using in its entirety, we will make efforts to provide You with advance notice and an opportunity to cancel your Applica account.

2.8 Alpha, Beta and Pre-Release. Applica may also provide You with access to features or services that are identified as alpha, beta or pre-release. You understand that such services are still in development, may have bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on alpha, beta or pre-release features or services is done at Your own risk and is provided “As Is” and without warranty of any kind, and the Applica indemnity in Section 7.4 does not extend to such alpha, beta or prerelease features or services. Alpha, beta, or pre-release features and services may be subject to additional terms made available to You at the time you access such features and services, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You.

2.9 Suspension of Services. In addition to suspension of the Services for non-payment of fees as described in Section 4.4 (Non-Payment; Suspension Rights), We may also suspend the Services immediately upon notice for cause if: (i) You violate (or give us reason to believe You have violated) our Terms; (ii) there is reason to believe the traffic created from Your use of the Services or Your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (iii) We determine, in our sole discretion, that providing the Services is prohibited by applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (iv) subject to applicable Law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if You become the subject of bankruptcy or similar proceeding. We will use commercially reasonable efforts to (a) provide You as much prior notice as possible of any situation that we are aware of that could lead to a right to suspend described in this paragraph, (b) work with You to remedy any situation that could lead to a right to suspend described in this paragraph if such situation can be remedied, and (c) limit any suspension as much a possible given the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic).

Article III. Data Use and Protection  

3.1 Ownership of Your Data. As between You and Applica, Your Data is and will remain Your property. You grant to Applica a non-exclusive right to use, copy, distribute and display Your Data in connection with Applica's operation of the Applica Services, in accordance with these Terms. We may monitor use of the Applica Services by all of our customers and You agree that we may use and publish such information, provided that such information does not identify You or Your customers. Please note that this license continues even if You stop using our Services. You, not Applica, have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Applica will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.

3.2 Data Processing Addendum. By accessing or using our Services, You consent to the processing, transfer and storage of information about You in and to the United States and other countries, where local law may apply.

3.3 Protection of Your Client Data. Applica will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by You or Your Authorized Users).

3.4 Privacy. As a subscriber to Applica's Services, We take your privacy seriously, as well as the privacy of the users of the Services that we provide You. Notwithstanding anything stated otherwise in these Terms, Our Privacy Policy, which is available here (https://applica-solutions.com/PrivacyPolicy) and is incorporated by reference into these Terms, shall govern with respect to the collection, use, retention and storage of Your data.

Applica will protect Your data and We will not share or sell Your data to any third parties. Applica will also protect the data of Your users of Our Services, and We will not share or sell Your users' data to any third parties. However, Applica may share data in an anonymous or aggregate form, so as not to reveal the identities of You or Your users.

Applica makes data and data analytics available to You about Your users to help You better meet their needs. YOU AGREE THAT YOU WILL NOT SHARE OR SELL SUCH USER DATA TO ANY THIRD PARTIES.

3.5 Sensitive Data.  You acknowledge that the Services are not intended for the processing of Sensitive Data. You are responsible for ensuring that suitable safeguards are in place prior to transmitting or processing any Sensitive Data over the Services, or prior to permitting Authorized Users to transmit or process Sensitive Data over the Services. Transmission or processing of Sensitive Data is solely at Your own risk. Applica will have no additional liability, including, without limitation, any indemnification obligations, whatsoever in connection with any Sensitive Data transmitted or processed via the Services. You will not import or incorporate into any contact lists, Applica Service fields or other content You upload to the Service any Sensitive Data.

“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.

3.6 Communications Not Confidential.  Applica does not guarantee that Your communications made using the Services are confidential. Applica generally follows the accepted industry practices to secure the transmission of data to, from and through Our Services, however, You understand, agree and acknowledge that Applica cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with Your use of the Services.

Article IV. Subscription Term, Fees, Taxes and Non-Payment 

4.1 Subscription Term. Your initial subscription period will be specified in Your Subscription Agreement when you signup for Our Services. Your subscription period may be extended by making payment for additional subscription periods

4.2 Fees and Payment. The fees for the Applica Service for any subscription period (“Fees”) are set forth in the Subscription Agreement and are payable in advance, irrevocable, and non-refundable except as set forth in the Subscription Agreement and these Terms.

You agree to provide Applica with complete and accurate billing and contact information for Yourself and Your organization, as applicable, and update such information as necessary. Where You provide Applica with credit card information, You represent that You are authorized to use the credit card that You enter and You authorize Applica (or our third party payment processor) to retain Your payment information and to use the stored payment method and information to charge such credit card (a) at the time that You order the Applica Services set forth in the Subscription Agreement and (b) for any billing frequency otherwise established in the Subscription Agreement. Those credit card payments will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction. Applica reserves the right to verify credit/debit card payments prior to acceptance of Your Order.

4.3 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Applica's net income) arising from the transactions described in these Terms, even if such amounts are not listed on a Subscription Agreement. To the extent You are exempt from sales or other taxes, You agree to provide Applica, upon request, with the appropriate exemption certificate.

4.4 Non-Payment; Suspension Rights. If you do not make full payment prior to the start of a subsequent subscription period, Applica may suspend your Service until such payment is made. Applica may terminate the Applica Services if the billing or contact information provided by You is false or fraudulent.

Article V. Confidentiality; Use of Names 

5.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Subscription Agreement, Your Data, the Applica Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each Party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other Party or by a third-party; (b) not to use the Confidential Information of the other Party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Applica will restrict its employees' access to Your Confidential Information to only those employees necessary as determined in Applica’s sole discretion to successfully provide the Applica Services. Applica may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Applica in connection with the performance of this Agreement. Except for personal information within Your Data which is at all times understood to be Confidential Information, notwithstanding anything to the contrary in these Terms, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other Party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

5.2 Credit Card Information. Applica agrees that it will retain and store Your provided credit card information only for the minimum amount of time required for business, legal, and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.

5.3 Use of Names in Marketing. You may not use Applica's name and credentials without prior written consent. If such consent is granted, You agree to cease or alter such use at Applica's request where such use is contrary to Applica's branding policies, could cause any brand confusion in the market, or is otherwise objectionable to Applica. Applica may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Applica agrees to cease or alter such use at Your written request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and website presentation and promotion, etc.

Article VI. Term & Termination  

6.1 Term. Per Article IV, Your initial subscription period will be specified in Your Subscription Agreement when you sign up for Our Services, and Your subscription period may be extended by making payment for additional subscription periods.

6.2 No Early Termination; No Refunds. The Subscription Term will end on the expiration date and You cannot cancel Your Subscription Agreement early without penalty. All payments are non-refundable, if You should stop using the Applica Services during Your Subscription Term.

6.3 Termination. Applica, at its sole discretion, may terminate these Terms and cancel Your Applica Services account(s) in the event You commit any material breach of these Terms and fail to remedy that breach within five (5) days after Applica provides written notice of that breach to You.

6.4 Effect of Termination. Contingent upon Our receipt of all Fees due Applica, Applica will continue to make Your Data available for downloading for sixty (60) days after the termination date. Following this sixty (60) day grace period, Applica has no obligation to preserve or provide Your Data to You, and Applica may remove or delete Your Data in Our systems for the Applica Services. The provisions of these Terms which by their nature are intended to survive expiration or termination, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification, and payment of unpaid Fees and expenses, shall survive any termination.

Your users may continue to use Applica's Services after Your termination, however these Services may be provided without Your branding.

Article VII. Warranties, Limitation of Liability, and Indemnity  

7.1 Limited Warranties. You warrant that Your business shall comply with these Terms and with all applicable federal, state and local laws and regulations, as well as all incorporated policies, in connection with Your access to and use of the Applica Services. You further represent and warrant that You will not violate any laws and/or regulations that govern Your entity, industry, or relationship with Your own Contacts, including but not limited to consumer protection, privacy, data security, advertising, intellectual property or other laws; or engage in unethical, false or misleading advertising, promotions, or sales efforts and practices in connection with Your use of Applica Services, including but not limited to unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You warrant and agree that You will be responsible for the accuracy, quality and legality of Your Data (including Client Data), including its content and use, obtaining and maintaining all necessary licenses and consents and comply with all relevant legislation in relation to the collection, transfer and disclosure of the Your Data, the means by which You acquired Your Data, Your use of Your Data with the Services, and any information technology infrastructure that interfaces or interoperates with the Applica Services.

7.2 Applica Not Responsible for Third Party Services. Applica may provide You with access to certain Third Party Services in connection with the Applica Services or via the Applica websites. Use of any such Third Party Services may be subject to separate terms of service between You and such third party, and not these Terms. Applica does not warrant in any manner and will not be responsible for such Third Party Services and You agree to look solely to the relevant third party provider (and not Applica) if and to the extent that You have any complaints or issues relating to the Third Party Content or its interaction with an Applica Service. You agree that Applica is not responsible and will not be held liable for any Third Party Services available on other web sites accessed through links from Applica's websites or Applica Services. Links to third-party sites are for Your convenience only, and their inclusion on the Applica website does not imply any endorsement, guarantee, warranty or representation by Applica. APPLICA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL APPLICA BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY SERVICES OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.

7.3 Warranty Disclaimers. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” AND “AS AVAILABLE” AND APPLICA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS TO THE FULLEST EXTENT OF THE LAW. ALPHA, BETA AND PRE-RELEASE OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND APPLICA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH OFFERINGS. YOU ACKNOWLEDGE THAT THE APPLICA SERVICES MAY NOT BE DESIGNED, INTENDED, OR RECOMMENDED AS A MEANS BY WHICH TO STORE OR TRANSMIT “PROTECTED HEALTH INFORMATION” (OR ‘PHI’) AS DEFINED UNDER THE UNITED STATES’ HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED OR SIMILAR LAWS (COLLECTIVELY, “HIPAA”). EXCEPT AS OTHERWISE AGREED IN A SEPARATE WRITING SIGNED BY APPLICA, APPLICA MAKES NO REPRESENTATION OR WARRANTY THAT THE APPLICA SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA. TO THE EXTENT THE FOREGOING DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW

7.4 Indemnity. Applica will defend, indemnify, and hold You harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions (“Claim”) brought or threatened against You by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”). However, Applica will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of Your use of the Services in breach of these Terms, or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing.

You will defend, indemnify and hold Applica, its officers, directors, employees, agents, stockholders, and affiliates (“Applica Indemnified Parties”) harmless from and against all Claims brought or threatened by a third party against a Applica Indemnified Party and any Losses related thereto alleging or arising out of (a) Your or any of Your Users’ breach of or activities under these Terms; (b) Your or any of Your Users’ use of the Services; or (c) Your acts or omissions in connection with the provision of Your products or services, including, without limitation, any related intellectual property Claims.

If Your use of the Services has become, or in Applica’s opinion is likely to become, the subject of any infringement Claim, Applica may at its option and expense: (a) procure for You the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 7.4 states your exclusive remedy for any infringement Claim by a third party.

In the event of an indemnity obligation under this Section 7.5, the Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of such claim; (ii) allow the Indemnifying Party sole control of its defense and settlement (provided that a party may not settle, defend or resolve a claim unless it unconditionally releases the other party of all liability to any third party); and (iii) provide the Indemnifying Party all available information and reasonable assistance at the Indemnifying Party’s cost. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. A party’s indemnification obligations are expressly conditioned upon the Indemnified Party’s compliance with this Section 7.5, provided that, the failure to provide notice of a claim will not limit the rights of an Indemnified Party hereunder except to the extent that such failure materially prejudices the ability of the Indemnifying Party to defend such claim.

7.5 Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF YOUR OBLIGATIONS UNDER SECTION 2.2, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COVER, LOSS OF DATA, LOSS OF BUSINESS, EVEN IF APPLICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL APPLICA'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO APPLICA DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT NEITHER APPLICA NOR THE APPLICA SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE RECOMMENDATIONS RELATED TO YOUR USE OF THE APPLICA SERVICES. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY BASED ON YOUR RELIANCE ON OR USE OF ANY INFORMATION CONTAINED IN ANY APPLICA SERVICES OR APPLICA MATERIALS. APPLICA WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE, PERSONAL, OR CLIENT DATA SENT TO APPLICA.

When using Our Services or websites, information will be transmitted over a medium that may be beyond the control and jurisdiction of Applica and Our suppliers. Accordingly, Applica assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use Our Services or websites.

Our websites and content are provided on an "as is" basis. APPLICA, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. Without limiting the foregoing, Applica, its licensors, and its suppliers make no representations or warranties about the accuracy, reliability, completeness, currentness, or timeliness of the content, software, links, or communications provided on or through the use of Our Services or websites.

In no event shall Applica, its licensors, its suppliers, or any third parties mentioned on Our websites be liable for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use Our websites or content, whether based on warranty, contract, tort, or any other legal theory, and whether or not Applica, its licensors, its suppliers, or any third parties mentioned on Our websites are advised of the possibility of such damages. Applica, its licensors, its suppliers, or any third parties mentioned on Our websites shall be liable only to the extent of actual damages incurred by You, not to exceed U.S. $1000. Applica, its licensors, its suppliers, or any third parties mentioned on Our websites are not liable for any personal injury, including death, caused by Your, or Your users', use or misuse of Our websites or content. Any claims arising in connection with your use of Our websites or content must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms are exclusive and are limited to those expressly provided for in these Terms.

Article VIII. General Provisions

8.1 Notices. Notices to Applica will only be effective when delivered to support@applica-solutions.com with a copy to: Applica Solutions, 171 Locke Drive #103, Marlborough, MA 01752, USA, or any subsequent address we may provide for the Applica Services. We may give general notices within the Applica Services, which will be effective when posted. Alternatively, we may give You notice at our choice either (a) by email or mail to the last known email or physical address that we have on record for You, which will be effective when we send it; or (b) via telephone, by calling the number we have on record for You, which will be effective when we talk with You. You agree that any notices, agreements, disclosures or other communications that We send to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. It is Your responsibility to keep all Your contact information current and You waive Your right to receive such notices if You do not provide current contact information.

8.2 Assignment. You do not have a right to assign these Terms without providing prior notice to and obtaining the prior written consent of Applica. Any purported assignment in violation of this Section shall be void. We can assign these Terms without Your consent.

8.3 Integration; Modification. These Terms, as updated, along with the information incorporated into these Terms (information contained in an embedded URL or referenced policy), together with any applicable Subscription Agreement, become part of Your agreement with Applica relating to the Applica Services and Applica Materials, and will apply instead of any, conflicting or additional communications.

We may modify, update, add or remove all or parts of these Terms at any time. Your continued access to, or use of, the Applica Services means You have agreed to be bound by the most current version of these Terms which will govern our relationship with You as soon as they become effective. Since we might update these Terms from time-to-time or at any time, we suggest You review them occasionally and check the “Revised” date which will reflect the date the current version was posted.

8.4 Governing Law. These Terms shall be governed exclusively by the laws of the Commonwealth of Massachusetts, USA, excluding its conflict of laws rules and, where applicable, will be governed by the federal laws of the United States. We and You agree to the exclusive jurisdiction and venue of the state or federal courts in Middlesex County, MA, USA for any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties.

8.5 Dispute Resolution; Binding Arbitration. Any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Services, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in Middlesex County, Massachusetts (the “Agreement to Arbitrate”). Notwithstanding the foregoing, either of Us can bring a claim in small claims court in Middlesex County, Massachusetts, if it qualifies to be brought in that court. Any arbitration under these Terms will be conducted by the American Arbitration Association under then prevailing American Arbitration Association Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules, or as otherwise mutually agreed by You and Applica. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims must be brought within the statute of limitations or other time required by applicable law. You agree that You shall bring any claim, action or proceeding arising out of or related to the Agreement in Your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND APPLICA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.

Unless the Parties agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate, as a result of a decision by the arbitrator or a court order, or the Parties have reserved their rights to pursue legal action in a court of law, You agree that any claim or dispute that has arisen or may arise between the Parties must be resolved exclusively by a state, federal, or small claims court located in Boston, Massachusetts. The Parties agree to submit to the personal jurisdiction of a state court located in Middlesex County, Massachusetts or a United States District Court for the District of Massachusetts located in Boston, Massachusetts.

8.6 Force Majeure. Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.

8.7 Export. All or part of our services may be subject to U.S. export control and economic sanctions laws and other applicable export and import laws (“Export Controls”). You agree to abide by all Export Controls as they relate to Your access and use of Our Services. You may not access or use the Services if You are located in a jurisdiction where the provision of Our Services is prohibited by law (a “Prohibited Jurisdiction”), and You may not provide access to our Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent and warrant that: (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction; and (iii) You will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You are located.

8.8 Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.

8.9 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Applica and You as a result of these Terms or use of the Applica Services.

8.10 Waiver. 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.


Updated on: November 5, 2020