MASTER SUBSCRIPTION AGREEMENT
ENOSIX, INC., A DELAWARE CORPORATION LOCATED AT 250 E FIFTH STREET, SUITE 1500, CINCINNATI, OH 45202 (“ENOSIX”) PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR, BY USING SUCH SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT, YOU AND THE PERSON ON BEHALF OF WHOM YOU ARE ACCEPTING THE AGREEMENT (THE “CUSTOMER”) (A) ACCEPT THIS AGREEMENT AND AGREE THAT THE CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) IF THE CUSTOMER IS AN INDIVIDUAL, HE OR SHE IS OF LEGAL AGE AND HAS SUFFICIENT LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON THE CUSTOMER’S BEHALF HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER AND BIND THE CUSTOMER TO ITS TERMS. IF THE CUSTOMER OR THE PERSON ACCEPTING THIS AGREEMENT ON ITS BEHALF DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, ENOSIX WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO THE CUSTOMER AND THE CUSTOMER MAY NEITHER DOWNLOAD, INSTALL, NOR USE THE SOFTWARE OR THE DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR THE CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT THE CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE SOFTWARE.
This Agreement was last updated on December 10, 2019. It is effective as of the date of Customer’s acceptance of this Agreement (“Effective Date”).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the issued and outstanding voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Customer” means the company or other legal entity which has executed this Agreement, and
Affiliates of that company or entity which have signed Order Forms.
“Customer Side Components” the components of the Software which reside on one or more client devices for the purpose of making a connection between the client device and the Server Side Components.
“Documentation” means user manuals, technical manuals and any other materials provided by enosiX, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
“enosiX” means enosiX, Inc.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-enosiX Application” means a Web-based, mobile, offline, or other software application functionality that is provided by Customer or a third party and interoperates with the Software, including, for example, an application that is developed by or for Customer by a third party.
“Order Form” means the order form filled out and submitted by or on behalf of Customer, and accepted by enosiX, for Customer’s license of the Software. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to it.
“Software” means the software programs for which Customer is purchasing or receiving a free trial license, as expressly set forth in the Order Form, which may include both Customer Side Components and Server Side Components. If customer is purchasing a license, Software will include all production released versions issued during the applicable subscription period.
“Server Side Components” means the components of the Software which reside on the Customer’s computer network and connect to an instance of SAP.
“Support” means Level 3 support services for the Software, which will include providing all production released versions issued during the subscription period. Level 3 support services are those services which are necessary to correct a defect in the workmanship or functionality of the Software independent of the Customer’s use of the Software or the Software’s interoperation with any Non-enosiX Application. Unless otherwise agreed in a professional services agreement, enosiX has no obligation to provide Level 1 and Level 2 support for the Software or any support whatsoever for any Non-enosiX Application.
“User” means an individual who is authorized by Customer to use the Software, for whom Customer has purchased a subscription (or in the case of any Software provided by enosiX without charge, for whom Software has been provisioned), and to whom Customer (or, when applicable, enosiX at Customer’s request) has supplied a user identification and password (for Software utilizing authentication). Users may include, for example, Customer’s or any of its Affiliate’s employees, consultants, contractors, and agents, and third parties with which Customer transacts business.
2. FREE TRIAL SOFTWARE.
If Customer downloads the Software for a free trial through the Salesforce App Exchange, enosiX will make certain features of the applicable Software available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Software, (b) the start date of purchased subscriptions for the applicable Software indicated on the applicable Order Form, (c) termination by enosiX, in its sole discretion. Please note that enosiX provides Customer with a trial version of the Software without charge up to certain limits and with limited functionality as described in the Documentation, Order Form, or elsewhere. Usage over these limits or expanded functionality would require Customer to purchase additional resources, services, or a subscription to a non- trial version of the applicable Software. Customer agrees that enosiX, in its sole discretion and for any or no reason, may terminate Customer’s access to the free trial of the Software or any part thereof. Customer agrees that any termination of its access to the free trial of the Software may be without prior notice, and Customer agrees that enosiX will not be liable to Customer or any third party for such termination.
3. OUR RESPONSIBILITIES
3.1 Provision of the Software. As of the Effective Date, enosiX will (a) make the Software available to Customer pursuant to the terms this Agreement and the applicable Order Form(s), and (b) provide applicable Support to Customer at no additional charge, and/or upgraded support if purchased, such upgraded support will be subject to a separate professional services agreement.
3.2 enosiX Personnel. enosiX will be responsible for the performance of enosiX’s personnel (including enosiX’s employees and contractors) and enosiX’s compliance with enosiX’s obligations under this Agreement.
4. USE OF THE SOFTWARE
4.1 As of the Effective Date, Customer has the non-exclusive, perpetual (unless limited by subscription term), irrevocable (during the subscription term), worldwide, royalty-free (other than the fees agreed to be paid in the Order Form), non-transferable (except as permitted herein), non-sublicensable, limited right, exercisable solely by and through the Users, to:
(a) Download, copy, and install, in accordance with the Documentation, (i) one (1) copy of the Server Side Components included in the Software set forth on and in accordance with the Order Form; (ii) copies of the Customer Side Components of the Software on devices owned or leased, and controlled by, Customer or its Users up to a maximum of the number of concurrent Users set forth on the Order Form. In addition to the foregoing, Customer has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for the purpose of creating a redundant system, provided that Customer shall not, and shall not allow any person to, install or use such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Customer uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Customer (A) will be the exclusive property of the enosiX and/or its licensor, as applicable; (B) will be subject to the terms and conditions of this Agreement; and (C) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
(b) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely for Customer and any of its Affiliate’s business purposes.
(c) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Customer: (i) will be the exclusive property of enosiX and/or its applicable licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
(d) Transfer any copy of the Software from one computer to another, provided that the number of computers on which the Software is installed at any one time does not exceed the number permitted under clause (a) above.
(e) Customer by and through its Users may install, access and use a reasonable number of copies of the Software for training, testing, customization and configuration, development and integration, back-office and HelpDesk support, maintenance and support, and legal and regulatory compliance purposes, including use in Customer’s development labs and pre-production environments. All copies of the Software made by the Customer (A) will be the exclusive property of the enosiX and/or its licensor, as applicable; (B) will be subject to the terms and conditions of this Agreement; and (C) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
4.2 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Customer purchases access to the Software as subscriptions, (b) Customer may add subscriptions during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) Customer’s use and access to any added subscriptions will terminate on the same date as the underlying subscriptions.
4.3 Usage Limits.
The Software is subject to usage limits agreed to in writing in any Order Form. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Software may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Software. If Customer exceeds a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Software promptly upon enosiX’s request, and/or pay any invoice for excess usage in accordance with Section 4.3.
The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features. Upon enosiX’s written request no more than once every calendar year, Customer shall conduct a review of its and its Users use of the Software and certify to enosiX in a written instrument signed by the Chief Information Officer of the Customer that it is in full compliance with the Usage Limits or, if Customer discovers any noncompliance Customer shall immediately remedy such noncompliance and provide enosiX with written notice thereof. Customer shall provide enosiX with reasonable access and assistance to further evaluate and remedy such noncompliance.
4.4 Restrictions on Use. Customer will not (a) make the Software available to, or use the Software for the benefit of, anyone other than Customer or its Users, unless expressly stated otherwise in any Order Forms or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent, or lease the Software, or include the Software in a service bureau or outsourcing offering, (c) use the Software or Non-enosiX Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software or Non-enosiX Application to store or transmit Malicious Code, (e) permit direct or indirect access to or use of the Software in a way that circumvents a contractal usage limit, or use the Software to access or use any of enosiX’s Intellectual Property except as permitted under this Agreement, an Order Form, or the Documentation, (f) copy the Software or any part, feature, function, or user interface thereof except as permitted in this Agreement, Order Form, or Documentation, or (g) reverse engineer the Software (to the extent such restriction is permitted by law).
4.5 Customer’s Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify enosiX promptly of any such unauthorized access or use, (c) use the Software only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, (d) comply with terms of service of any Non-enosiX Applications with which Customer uses the Software, and (e) be responsible for obtaining any SAP or other third party licenses and environments required for the operation of the Software.
4.6 Audit. During the term of this Agreement, enosiX may, in enosiX’s sole discretion and expense, audit Customer’s use of the Software to ensure Customer’s compliance with this Agreement or any Order Form, provided that (i) any such audit shall be conducted on not less than ten days’ prior written notice to Customer, and (ii) no more than one audit may be conducted in any 12-month period except for good cause shown. enosiX also may on not less than ten days’ prior written notice to Customer, in its sole discretion and expense, audit Customer’s systems within 12 months after the end of any the term of any Order Form to ensure Customer has ceased use of the Software and removed all copies of the Software from such systems as required under this Agreement and the applicable Order Form. The Customer shall cooperate with enosiX’s personnel conducting such audits and provide all reasonable access to records, systems, equipment, information and personnel, including machine IDs, serial numbers and information related to Customer’s use of the Software. enosiX may conduct audits only during Customer’s normal business hours and in a manner that does not unreasonably interfere with the Customer’s business operations. If the results of such an audit indicate that Customer’s use of any Software exceeds or exceeded the Usage Limits by more than 5%, Customer shall pay to enosiX, within 30 days following the date of enosiX’s written request therefor, enosiX’s reasonable costs incurred in conducting the audit. If the use exceeds or exceeded the use permitted by this Agreement by more than 19%, enosiX shall also have the right to terminate this Agreement and any Order Form issued hereunder and any rights granted hereunder or thereunder, effective immediately upon written notice to Customer
5. NON-ENOSIX PROVIDERS.
5.1 No Warranty for Non-enosiX Applications. enosiX or third parties may make available third-party products or services, including, for example, Non-enosiX Applications and other consulting services. Customer’s acquisition of such products or services, and any exchange of data between Customer and any Non-enosiX provider, product, or service is solely between Customer and the applicable Non-enosiX provider. enosiX does not warrant or support Non-enosiX Applications or other Non-enosiX products or services, whether or not they are designated by enosiX as “certified” or otherwise, unless expressly provided otherwise in Order Forms. Notwithstanding anything to the contrary herein, to the extent enosiX engages a third party to perform services for the installation and/or configuration of the Software licensed to Customer hereunder, enosiX warrants that such services will be performed in a good and workmanlike manner, by trained and experienced professionals in the technology area applicable to the services being performed, utilizing the highest standards of business and technical practices then commonly recognized by industry professionals as being the highest standards. For the avoidance of doubt, the preceding warranty shall not apply to third parties which Customer engages directly regardless of whether enosiX has recommended or has a previous relationship with such third party.
5.2 Integration with Non-enosiX Applications. The Software may contain features designed to interoperate with Non-enosiX Applications. To use such features, Customer may be required to obtain access to such Non-enosiX Applications from their providers, and may be required to grant enosiX access to Customer’s account(s) on such Non-enosiX Applications.
enosiX cannot guarantee the continued availability of the Software’s features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-enosiX Application ceases to make the Non-enosiX Application available for interoperation with the corresponding Software features in a manner acceptable to enosiX or integration of the a Non-enosiX Application makes the Software inoperable.
6. FEES AND PAYMENT FOR THE SOFTWARE
6.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or such Order Forms, (a) fees are based on the Software subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non- refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
6.2 Expenses. Customer agrees to reimburse enosiX for actual, reasonable out-of-pocket costs for travel related to the Customer’s installation of, use of, and access to the Software and any services that enosiX performs on behalf of Customer, if applicable, which are incurred in accordance with Customer’s travel and expense policies and approved in advance by Customer (the “Expenses”). These Expenses are in addition to and may be invoiced separately from the Fees set forth any applicable Order Form.
6.3 Invoicing and Payment. enosiX will invoice Customer in advance and otherwise in accordance with the terms of the relevant Order Form. Unless otherwise stated in the applicable Order Form, invoiced charges are due net 45 days from receipt of invoice. Customer is responsible for providing complete and accurate billing and contact information to enosiX and notifying enosiX of any changes to such information.
6.4 Overdue Charges. If any invoiced amount is not received by enosiX by the due date, then without limiting enosiX’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) enosiX may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.3.
6.5 Suspension of the Software; Acceleration. If any amount owing by Customer under this or any other agreement for the Software is 30 or more days overdue, enosiX may, without limiting enosiX’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Customer’s license to the Software until Customer pays such amounts in full.
6.6 Payment Disputes. enosiX may not exercise its rights under Sections 6.4 or 6.5 of this Agreement if Customer has disputed the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
6.7 Taxes. enosiX’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If enosiX has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6.7, enosiX will invoice Customer and Customer will pay that amount unless Customer provides enosiX with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, enosiX is solely responsible for taxes assessable against it based on its income, property, and employees.
6.8 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by enosiX regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, enosiX, and its licensors, reserve all of their respective right, title, and interest in and to the Software, including all of their respective related Intellectual Property Rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement or any Order Forms. Without limiting the generality of the foregoing, Customer acknowledges and agrees that enosiX retains all right, title, and interest in and to the Software and any software that is derived from the Software, whether or not co-developed specifically for the Customer, including any Intellectual Property Rights contained therein.
7.2 License to Use Feedback. Customer grants to enosiX and enosiX’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into enosiX’s and/or enosiX’s Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Software.
7.3 Customer Reference. enosiX may only use the name, service mark, or trademark of Customer (including the use of the name of Customer in reference lists or for advertising and other promotional purposes) or any information about enosiX’s relationship with Customer or any of its Affiliates, with the express written permission of Customer’s Chief Information Officer.
7.4 Customer-Owned Property. All equipment, materials, drawings, software, or data of every description that enosiX receives directly from Customer or from a third party on behalf of Customer, shall be the property of Customer (“Customer-Owned Property”). For the avoidance of doubt, Customer-Owned Property shall not include the Software, any software that is derived from the Software, or any of the respective Intellectual Property Rights contained in either. enosiX shall mark all Customer-Owned Property as such, and shall return all Customer-Owned Property to Customer upon Customer’s request, or upon the termination of this Agreement, whichever is earlier.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the generality of the foregoing, Customer’s Confidential Information includes Customer’s data, including information related to Customer’s customers and vendors; enosiX’s Confidential Information includes the Software; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 Use of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have been made aware of and agreed to comply with the restrictions in this “Confidentiality” Section. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, consultants and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel, consultants or accountants will remain responsible for such Affiliate’s, legal counsel’s, consultant’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, enosiX may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-enosiX Application provider to the extent necessary to perform enosiX’s obligations under this Agreement, under written terms of confidentiality materially as protective as set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.4 Return of Confidential Information. Upon any termination of this Agreement for any reason, each party shall, within thirty (30) days: a) return or destroy (at the discretion of the other party) all Confidential Information then in such party’s possession and enosiX shall return to Customer all Customer-Owned Property; and b) each party shall provide written certification to the other party, by an appropriate officer of the party, of such actions.
9. REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS
9.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 enosiX’s Warranties. Other than for free trials of the Software (which enosiX provides to customer “as is” and without warranty of any kind), enosiX warrants that during an applicable subscription term (a) the Software will perform materially in accordance with the applicable Documentation and (b) subject to Section 5.2 of this Agreement, enosiX will not materially decrease the overall functionality of the Software. Additionally, enosiX warrants that, to the knowledge of enosiX, the Software is free from authorization codes, viruses, disabling programming codes, instructions, or other contaminants, including any codes or instructions that could (i) terminate, disrupt or allow unauthorized access to software, computer equipment or other resources or data of Customer, or (ii) cause in whole or in part, directly or indirectly, damage to or loss of Customer’s computer files or programs, or (iii) disrupt or otherwise interfere with Customer’s use of its computer operating system or Customer’s use of the Software in accordance with this Agreement, or (iv) damage, erase or destroy the Software, or any other programs or data that Customer uses in connection with the Software. For any breach of a warranty above, Customer’s exclusive remedies are those described in the Sections 12.3 and 12.4 of this Agreement.
9.3 Customer’s Warranties. Customer warrants that during the applicable subscription term (a) Customer is not enosiX’s direct competitor and (b) Customer and Users are not accessing the Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
9.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1 Indemnification by enosiX. enosiX will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the Software infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages, fines, penalties, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by enosiX in writing of, a Claim Against Customer, provided Customer (a) promptly give enosiX written notice of the Claim Against Customer, (b) give enosiX sole control of the defense and settlement of the Claim Against Customer (except that enosiX may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give enosiX all reasonable assistance, at enosiX’s expense. If enosiX receives information about an infringement or misappropriation claim related to the Software, enosiX may in its sole discretion and at no cost to Customer (i) modify the Software so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that the Software in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Software upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term for the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim against Customer arises from a Non-enosiX Application, Customer’s use of the Software in violation of this Agreement, the Documentation, or applicable Order Forms, or a modification to the Software by Customer or enosiX at the request and direction of Customer.
10.2 Indemnification by Customer. Customer will defend enosiX against any claim, demand, suit, or proceeding made or brought against enosiX by a third party to the extent caused by Customer’s use of the Software in violation of the Agreement, the Documentation, Order Form, or applicable law, or arising from any modification to the Software by Customer or enosiX at the request and direction of Customer (each a “Claim Against enosiX”), and Customer will indemnify enosiX from any damages, fines, penalties, attorney fees and costs finally awarded against enosiX as a result of, or for any amounts paid by enosiX under a settlement approved by Customer in writing of, a Claim Against enosiX, provided enosiX (a) promptly gives Customer written notice of the Claim Against enosiX, (b) gives Customer sole control of the defense and settlement of the Claim Against enosiX (except that Customer may not settle any Claim Against enosiX unless it unconditionally releases enosiX of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND CUSTOMER’S AFFILIATES HEREUNDER FOR THE SOFTWARE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT (I) CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 6.1 OF THIS AGREEMENT, OR (II) EITHER PARTY’S LIABILITY FOR A VIOLATION OF ITS OBLIGATIONS UNDER SECTION 8, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW OR TO EITHER PARTY’S LIABILITY FOR A VIOLATION OF ITS OBLIGATIONS UNDER SECTION 8, OR FOR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at enosiX’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for the Software has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12.3, enosiX will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by enosiX in accordance with Section 12.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to enosiX for the period prior to the effective date of termination.
12.5 Customer’s Use of the Software Upon Termination. Upon termination of this Agreement, the license granted under this Agreement shall also terminate, and Customer shall cease using and destroy all copies of the Software and Documentation.
12.6 Surviving Provisions. Sections 6, 7, 8, 9.4, 10, 11, 12.4, 12.5, 12.6, 13.1, and 14 will survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW, AND JURISDICTION
13.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in the most recent Order Form unless otherwise communicated to enosiX in writing.
13.2 Agreement to Governing Law and Jurisdiction. With respect to all matters arising out of or relating to this Agreement and any claim or controversy arising between the parties with respect to the subject matter hereof, including without limitation any claim or cause of action arising out of tort, shall be governed in accordance with the laws of the State of Ohio, without regard to any conflict of law provisions thereof. Each party to this Agreement hereby irrevocably submits to the exclusive jurisdiction of any Ohio state or federal court sitting in Hamilton County, Ohio, over any action or proceeding arising out of or relating to this Agreement and any and all transactions related to or arising out of this Agreement, and each of the parties hereby irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined in such Ohio state or federal court. Each party hereby irrevocably waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the laying of venue in any action or proceeding in any such court as well as any right it may now or hereafter have to remove such action or proceeding, once commenced, to another court on the grounds of forum non conveniens or otherwise. Each party agrees that a final, non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law
14. GENERAL PROVISIONS
14.1 Export Compliance. The Software, other technology enosiX makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Software in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
14.2 Entire Agreement and Order of Precedence. This Agreement together with any Order Form referencing this Agreement or any other document expressly incorporated herein by reference represents the entire agreement between the parties regarding Customer’s use of the Software and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, enosiX will refund to Customer any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
13.9 Required Coverage and Amounts. The Parties will obtain and maintain at their sole cost and expense during the term of this Agreement commercially reasonable insurance coverage to cover any liability that may arise as a result of their respective obligations under this Agreement.