WHEREAS, Axonius is in the business of providing licenses to use its proprietary device management software; and
WHEREAS, Company wishes to receive and Axonius is prepared to provide Company with a limited license to use its Solution (defined below), subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereafter set forth, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement and all Exhibits thereto, the following capitalized terms shall have the following meaning:
1.1.“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
1.2. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
1.3. “Documentation” means Axonius’s user manuals, handbooks, and installation guides relating to the Solution that Axonius provides or makes available to Company in any form or medium which describe the functionality, components, features, or requirements of the Solution, including any aspect of the installation, configuration, integration, operation, or use of the Solution.
1.4. “Intellectual Property Rights” means all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) trademarks, trade names, service marks, logos, domain names, goodwill and trade dress; (d) rights relating to the protection of trade secrets and confidential information; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.5. “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.6. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.7. “Solution” means Axonius’s proprietary device management software, whether in SaaS or an instance installed on site (as set forth in Sales Order), including Documentation, and updates and upgrades that are generally made available for free by Axonius to all of its customers, but will not include other software, solutions, platforms, services or new functionality (unless otherwise agreed in writing by Axonius, in which case such other software, solutions, platforms, services or new functionality shall be deemed part of the Solution for all purposes hereof).
1.8. “Sales Order” means any purchase order agreed in writing by the parties, identifying the Solution to be made available by Axonius pursuant to this Agreement, the subscription term, fees associated with the Solution, and any additional terms and conditions described therein.
1.9. “Territory” means worldwide, except for (i) those territories identified in Section 3(iii); (ii) the People’s Republic of China, and (iii) Russia.
1.10. “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Axonius, including any third-party: (i) documents, data, content or specifications; (ii) any materials contemplated by Section 12.11 or other software, hardware or other products, facilities, equipment or devices; and (iii) accessories, components, parts or features of any of the foregoing
2. License and SLA.
2.1. License. Subject to the terms and conditions of this Agreement (including without limitation compliance with any payment obligations) and during the subscription period set forth in Sales Order (“Subscription Period”), Axonius shall grant Company a limited, non-exclusive, non-transferable and non-sublicensable right to use the Solution internally, for its intended purpose, in the Territory.
2.2. Service Level. During the Subscription Period, Axonius shall provide customer support (and, if expressly indicated in the Sales Order, technical account management) in accordance with the terms available on https:/www.axonius.com/service-levels-technical-support.
3. Limitations on Use; Covenants. Company shall not: (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Solution, or publicly perform, display or communicate, the Solution, or otherwise use the Solution in a time-sharing, outsourcing, or service bureau environment or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or create any derivative works of the Solution or attempt to access or discover its source code; (iii) ship, transfer, or export the Solution or use the Solution in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Solution: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Lebanon, Libya, North Korea, Sudan or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. Company agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (iv) contest Axonius’s Intellectual Property Rights to the Axonius IPR; (v) remove or add any labels, notices or logos to the Solution; (vi) perform any act or be responsible to any omission that is illegal; (vii) use the Solution for any purpose other than as permitted by this Agreement; (viii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Solution, such as features that restrict or monitor use of the Solution; and (ix) cause or permit any third party to do any of the foregoing.
4. Warranties and Representations . Each party warrants and represents to the other party that (i) it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization; and (iii) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms. Company warrants and represents that it has, and will continue to have throughout the Term, all licenses and permits that are required for the conduct of its business.
5. Intellectual Property Rights.
5.1. Ownership. Axonius, its Affiliates or licensors (as applicable) own all right, title, and interest in and to the Solution, including without limitation any and all data, computer code, UI, design and structure, and all modifications, enhancements and derivatives thereof and all Intellectual Property Rights related thereto (“Axonius IPR”). Company acknowledges that, except for the limited license to the Solution set forth in Section 2, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise to Company or to any third party, and Company or any third party did not and shall not acquire, any right, title, or interest in, or to any part of, the Solution or Axonius IPR.
5.2. Company Cooperation and Notice of Infringement. Company shall, during the Term: (i) safeguard the Solution (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (ii) at Axonius’s expense, take all such steps as Axonius may reasonably require to assist Axonius in maintaining the validity, enforceability and Axonius’s ownership of the Axonius IPR; (iii) promptly notify Axonius in writing if Company becomes aware of: (a) any actual or suspected infringement, misappropriation or other violation of Axonius IPR; or (b) any claim that the Solution, including any production, use, marketing, sale or other disposition of the Solution, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and (iv) fully cooperate with and assist Axonius in all reasonable ways in the conduct of any Action by Axonius to prevent or abate any actual or threatened infringement, misappropriation or violation of Axonius’s rights in, and to attempt to resolve any Actions relating to, the Solution.
6.1. Company shall pay Axonius all fees set forth in Sales Order (“Fees”) in accordance with the timetables therein. The Fees are non-refundable. An increase in unique device bandwidth usage volume as set forth in your Sales Order shall automatically trigger a corresponding increase in fees on a pro-rated basis (“True Up”) and not less than once per year in accordance with the Sales Order. True Ups shall not require notification and shall continue to apply regardless of any future decrease in bandwidth usage volume (including in any renewal term). Axonius systems shall be the sole basis for determining True Ups. All payments not made when due shall bear interest at the rate of 1.5% per month (calculated daily and compounded monthly) or at the highest interest rate allowed by law, whichever is less, from the due date until paid. In addition and without derogating from any other right Axonius has under law or contract, in the event the Company fails to make any payment when due, it shall constitute sufficient cause for Axonius to immediately suspend its performance and grant of rights under this Agreement.
6.2. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in the course of its performance of this Agreement. All amounts due to Axonius under this Agreement shall be made in USD to Axonius’s account, free and clear from any withholdings and/or deductions of any amounts, including without limitations of any bank fees, taxes (including VAT), duties or levies whatsoever. All payments are exclusive of all charges, taxes and levies of any nature, all of which shall be borne solely by Company.
7.1. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, THE SOLUTION, INCLUDING ANY DATA THEREIN OR RESULTING THEREFROM AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. AXONIUS DOES NOT PROVIDE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY, TIMELINESS AND/OR ACCURACY.
7.2. AXONIUS DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTION.
8. Confidential Information. . The parties shall comply with the provisions of the Non Disclosure Agreement (“NDA”) attached hereto as Exhibit A, or such other non-disclosure agreement executed by the parties; provided, that notwithstanding anything to the contrary in such other agreement, the Fees and any other financial terms negotiated and agreed between the parties (in a Sales Order or via any other instrument) shall be deemed Confidential Information.
9.1. Axonius Indemnification. Axonius shall indemnify, defend, and hold harmless Company from and against any and all Losses incurred by Company resulting from any Action by a third party that the Solution, or any use of the Solution in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights in the Territory. This Section 9.1 does not apply to the extent that the alleged infringement arises from: (i) Third-Party Materials; (ii) combination, operation, or use of the Solution in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Axonius or specified for Company’s use in the Documentation; (iii) modification of the Solution other than: (a) by Axonius in connection with this Agreement; or (b) with Axonius’s express written authorization and in strict accordance with Axonius’s written directions and specifications; (iv) use of any version of the Solution other than the most current version or failure to timely implement any maintenance release, modification, update, or replacement of the Solution made available to Company by Axonius; (v) use of the Solution after Axonius’s notice to Company of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; (vi) negligence, abuse, misapplication, or misuse of the Solution by or on behalf of Company, Company’s Affiliates, or a third party; (vii) use of the Solution by or on behalf of Company that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Axonius’s instructions; (viii) events or circumstances outside of Axonius’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (ix) third-party claims or Losses for which Company is obligated to indemnify Axonius pursuant to Section 9.2.
9.2. Company Indemnification. Company shall indemnify, defend, and hold harmless Axonius, its Affiliates, and each of its and their respective officers, directors, employees, agents, representatives, subcontractors, permitted successors and assigns (each, a “Axonius Indemnitee”) from and against any and all Losses incurred by the Axonius Indemnitee resulting from any Action by a third party: (i) that any Intellectual Property Rights or other right of any Person, or any law, is or will be infringed, misappropriated, or otherwise violated by any: (a) use or combination of the Solution by or on behalf of Company or any of its representatives with any hardware, software, system, network, service, or other matter that is neither provided by Axonius nor authorized by Axonius in this Agreement and the Documentation or otherwise in writing; and (b) information, materials, or technology directly or indirectly provided by Company or directed by Company to be installed, combined, integrated, or used with, as part of, or in connection with the Solution; (ii) relating to facts that, if true, would constitute a breach by Company of any representation, warranty, covenant, or obligation under this Agreement; (iii) relating to negligence, abuse, misapplication, misuse or omission (including recklessness or willful misconduct) by or on behalf of Company or any of its Affiliates with respect to the Solution or otherwise in connection with this Agreement; or (iv) relating to use of the Solution by or on behalf of Company or any of its Affiliates that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Axonius’s instructions.
9.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
9.4. Sole Remedy. THIS SECTION 9 SETS FORTH COMPANY’S SOLE REMEDIES AND AXONIUS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOLUTION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitation of Liability. . UNDER NO CIRCUMSTANCES WILL AXONIUS ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, LICENSORS, SERVICE PROVIDERS, SUPPLIERS, PERMITTED SUCCESSORS AND PERMITTED ASSIGNS (COLLECTIVELY, THE “AXONIUS GROUP”) BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (III) LOSS OF GOODWILL OR REPUTATION, (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR THIRD-PARTY MATERIALS, (V) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (VI) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE AXONIUS GROUP AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SOLUTION OR OTHERWISE SHALL NOT EXCEED THE PAYMENTS MADE TO AXONIUS BY COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
11. Term and Termination.
11.1. Unless earlier terminated pursuant to Section 11.2 below, the term of the Agreement shall be from the Effective Date and until the expiration of the Subscription Period (“Term“).
11.2. Either party may terminate this Agreement by notice to the other: (i) upon the breach by the other party of any of its obligations hereunder and such other party’s failure to cure such breach within thirty (30) days of such written notice; (ii) by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for either party or its property; (b) either party makes a general assignment for the benefit of its creditors; (c) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) either party is liquidated or dissolved.
11.3. Upon expiration or termination of this Agreement for any reason: (i) all of Company’s rights and licenses hereunder shall immediately terminate and Company shall immediately cease using the Solution (and delete it from all media); (ii) Company shall promptly erase, destroy or return to Axonius, at Axonius’s election, all of Axonius’s Confidential Information (as such term is defined on Exhibit A or other applicable non-disclosure agreement between the parties) and Axonius IPR held or controlled by it in any form or media; (iii), upon Axonius’s request, certify to Axonius in writing that it has complied with the requirements of this Section 11.3. The following Sections shall survive termination/expiration hereof: 1, 3-10, 11.3 and 12.
12. General. . (12.1)Waiver; Remedies. Failure of a party to insist upon the performance by the other party of any term hereof shall not be deemed a waiver of the rights of the first-mentioned party with respect thereto. All waivers must be in writing. (12.2)Notices. All notices and other communications required or desired to be communicated by one party to the other shall be in writing and shall be deemed delivered immediately when sent by email (with written confirmation of receipt), or delivered by hand or five (5) days after mailing by registered mail to the respective addresses set forth at the head of the Agreement. Provided, however, that any notice of change of address shall be effective only upon receipt. (12.3) Assignment. Other than in connection with a merger, consolidation, reorganization, sale of all the stock or all or substantially all of either party’s assets or any similar transaction, neither party may assign or transfer any of its rights or obligations hereunder, except with the other party’s prior written consent not to be unreasonably withheld, conditioned or delayed. (12.4) Relationship of the Parties. The relationship established between the parties by this Agreement is solely that of independent contractors. Neither party shall be deemed to be an agent or legal representative of the other party and no employee of either party shall be considered to be an employee of the other party for any purposes whatsoever. Neither party shall be liable for any expenses incurred by the other party which arise out of or in connection with the Agreement. (12.5) Entire Agreement; Modification. This Agreement, including the Exhibits hereto, sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior discussions, agreements, representations, and understandings between them. This Agreement shall not be modified except by a written instrument signed by both parties. (12.6) Governing Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted, and defined by and under the laws of the State of New York, US without regard to the conflict of law provisions thereof. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the competent Federal and State courts of New York, US, in each case located in New York City, and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. (12.7) Severability. Any provision of this Agreement prohibited by, or unenforceable under, applicable law shall be ineffective to the extent of such prohibition and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect unless the ineffectiveness of any provision shall substantially affect the consideration received by either party hereunder. (12.8) Force Majeure. With the exception of payment obligations, neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, pandemic, governmental regulations, communication or utility failures, or casualties. (12.9) Aggregate Data. Notwithstanding anything to the contrary, Axonius may use, retain, and transfer aggregate usage and transaction data in respect of the use of the Solution for any purpose and without any restrictions or payment obligations. (12.10) No Third-Party Beneficiaries. Other than as provided in Sections 9-10, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Company and Axonius any rights, remedies or other benefits under or by reason of this Agreement. (12.11) Open Source. The Solution includes open source components the use of which is governed by, and subject to, the terms and conditions of the applicable open source licenses. (12.12) Anti-Corruption. Company has not received or been offered any illegal or improper bribe, payment, gift, kickback or thing of value from any of Axonius, its Affiliates, and any of their respective employees or agents in connection with this Agreement. If Company learns of any violation of such restriction, Company shall promptly notify Axonius. (12.13) Reseller. If Company purchased the Solution from a reseller or distributor authorized by Axonius (“Reseller”), then to the extent there is any conflict between this Agreement and the agreement between Company and the Reseller, including any purchase order (“Reseller Agreement”), then, as between Company and Axonius, this Agreement shall prevail. Any rights granted to the Company in such Reseller Agreement which are not contained in this Agreement, apply only in connection with the Reseller. (12.14) Interpretation. For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (v) words denoting any gender include all genders. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Whereas, either party may disclose, from time to time, Confidential Information (as hereinafter defined) to the other party, pertaining to such party and its respective activities, whether financial, technological or other for the evaluation of the possible transaction between the parties (the “Purpose”), and other information deemed by the disclosing party as being Confidential Information; and
Whereas, the parties would like to maintain their respective rights in, protect the confidentiality of, and prevent the unauthorized use and disclosure of, such Confidential Information.
Now therefore, in consideration of the foregoing premises and the mutual covenants hereafter set forth: