Last updated: 10/16/2023
This Master Subscription Agreement, effective as of the later of the dates beneath the parties’ signatures below (“Effective Date”), is by and between Auxi Labs, Inc. (“Auxi”) a Delaware corporation with offices at 18429 Veterans Memorial DR E, Bonney Lake, WA 98391-9997 #7291 and Customer (“Customer”). As Auxi provides a subscription Service to which Customer intends to subscribe, this Agreement establishes the business relationship and allocation of responsibilities regarding the Service and the parties therefore agree as follows:
1. Provision of Service During the Term of this Agreement, Auxi shall: (i) make the Service available to Customer in accordance with the terms of this Agreement; (ii) not use Customer Data except to provide the Service, or to prevent or address service or technical problems, verify Service Improvements, in accordance with this Agreement and the Documentation, or in accordance with Customer’s instructions; and (iii) not disclose Customer Data to anyone other than Authorized Parties in accordance with this Agreement.
1.1 Invoices & Payment. Subscription Service Fees and all other fees due hereunder will be invoiced to Customer in the United States and payment will be remitted by Customer from the United States. All fees due hereunder (except fees subject to good faith dispute) shall be due and payable within thirty (30) days of invoice date. Auxi may send all Customer invoices electronically (by email or otherwise). All fees are based on access rights acquired and not actual usage. Customer shall provide Auxi with complete and accurate billing contact information including a valid email address. Upon Auxi’s request, Customer will make payments via electronic bank transfer. All remittance advice and invoice inquiries can be directed to support@auxi.io
1.2 Suspension for Non-Payment. If Customer's account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Auxi reserves the right to suspend the Service upon thirty (30) days written notice, without liability to Customer, until such amounts are paid in full.
1.3 Taxes. Fees invoiced pursuant to this Agreement do no include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but no limited to, value added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”). Customer shall pay all Taxes imposed on the Service or any other services provided under this Agreement, the appropriate amount will be computed based on Customer’s address listed in the address on the Order Form, and invoiced to and paid by the Customer, unless Customer provides Auxi with a valid tax exemption certificate authorized by the appropriate taxing authority.
2 Customer Obligations. Customer may enable access of the Service for use only by Authorized Parties solely for the internal business purposes of Customer and its Affiliates and not for the benefit of any third parties. Customer is responsible for all Authorized Party use of the Service and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Auxi promptly of any such unauthorized access or use. Customer shall not: (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the data contained therein; or (v) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation. Customer shall designate a maximum number of named contacts as listed in the applicable Order Form to request and receive support services from Auxi (“Named Support Contacts”). Named Support Contacts must be trained on the Auxi product(s) for which they initiate support requests. Customer shall be liable for the acts and omissions of all Authorized Parties and Customer Affiliates relating to this Agreement.
3. Proprietary Rights. As between Auxi and Customer, Customer owns all the right title and interest to its Customer Data. As between Customer, Auxi and Auxi’s licensors, Auxi or its licensors own all right, title and interest in and to the Service, Documentation, and other Auxi Intellectual Property Rights. Except for the limited rights expressly granted to the Customer hereunder. Auxi reserves all rights, title and interest in and to the Service and Documentation, including all related Intellectual Property Rights. Customer hereby grants Auxi a royalty free, worldwide transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into its services any Customer input. Auxi will have no obligation to make Customer Input as an Improvement. Customer will have no obligation to provide Customer Input.
3.1 Restrictions. Customer shall not (i) modify or copy the Service or Documentation or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Auxi in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
4. Confidentiality. Each party (the “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of the like and kind (but in no event using less than a reasonable standard of care) not to disclose or use any Confidential Information of the other party (the “Discloser”) except as reasonably necessary to perform the Recipient’s obligations or to exercise the Recipient’s rights under this Agreement or with the Discloser’s prior written permission. For purposes of clarification, this Section 4 also applies to the Confidential Information either party or it’s Affiliates shares with the other party or its Affiliates related to potential future subscription services. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers.
5. Protection and Security of Customer Data. Auxi maintains a security program that conforms to the Auxi Security Exhibit. Auxi shall not materially decrease the protections provided by the controls set forth in Auxi’s Security Exhibit.
5.1 Unauthorized Disclosure. If either party believes that there has been a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so, within forty-eight hours or any shorter period as may be required by Law. Additionally, each party will reasonably assist the other party in mitigating any potential damage. As soon as reasonably practicable after any such Security Breach, Auxi shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Customer.
6. Warranties. Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. Auxi warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; (ii) the functionality of the Service will not be materially decreased during the Term; and (iii) to the best of its knowledge, the Service does not contain any Malicious Code. Auxi further warrants that it will not knowingly introduce any Malicious Code into the Service.
6.2 Warranty Remedies. In the event of a breach of the warranty set forth in Section 6.1 (i) and (ii), (a) Auxi shall correct the non-conforming Service at no additional charge to Customer, or (b) in the event Auxi is unable to correct such deficiencies after good-faith efforts, Auxi shall refund Customer amounts paid that are attributable to the defective Service from the date Auxi received such notice. Customer shall use its commercially reasonable efforts to notify Auxi in writing within thirty (30) days of identifying a deficiency, but Customer’s failure to notify Auxi within such thirty (30) day period shall not affect Customer’s right to receive warranty remedies unless Auxi is somehow unable to, or impaired in its ability to, correct the deficiency due to Customer’s failure to notify Auxi within the thirty (30) day period. Notice of breaches of the warranty in Section 6.1(i) shall be made through Auxi’s then-current error reporting system; notices of breaches of any other warranty shall be made in writing to Auxi in accordance with the Notice provisions of this Agreement. The remedies set forth in this subsection shall be Customer’s sole remedy and Auxi’s sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of the Agreement and Customer elects to terminate the Agreement in accordance with the Section entitled “Termination.”
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUXI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. AUXI DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.
7. Indemnification
7.1 Auxi Indemnity. Auxi shall defend Customer, at Auxi’s expense against any third party Claim brought against Customer alleging that the use of the Service as contemplated hereunder infringes that third party’s Intellectual Property Rights and shall indemnify and hold Customer harmless against any Losses arising from such third party Claim. Auxi will have no liability for Claims or Losses to the extent they arise from (1) modification of the Service by anyone other than Auxi; (2) use of the Service in a manner inconsistent with the Documentation or in violation with this agreement; or (3) use of the Service in combination with any other product or service not provided by Auxi. If Customer is enjoined from using the Service or if Auxi reasonably believes it will be enjoined, Auxi may, at its sole option, obtain for Customer the right to continue use of the Service or replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Auxi, then either party may terminate the applicable Service and Auxi’s sole liability, in addition to the indemnification obligations in this section, will be to refund any prepaid Subscription Fees for the Service that was to be provided after the effective date of termination.
7.2 Customer Indemnity. Customer shall defend Auxi, at Customer’s expense, from any third-party Claim against Auxi alleging that the use of (1) Customer Data, or (2) data submitted by Customer, its Affiliates or its Authorized Parties pursuant to its use of the Service as contemplated under this Agreement, infringes or misappropriates such third-party’s Intellectual Property Rights and Customer shall indemnify and hold Auxi harmless against any Losses relating to such Claim.
7.3 Conditions. The indemnitor’s obligations in Sections 7 and 7.1 are conditioned on the indemnitee: (1) promptly giving written notice of the third party Claim to the indemnitor (although a delay of notice will not relieve the indemnitor of its obligations under this section except to the extent that the indemnitor is prejudiced by such delay); (2) giving the indemnitor sole control o the defense and settlement of the third party Claim (although indemnitor may not settle any third party Claim unless it unconditionally releases indemnitee of all liability); and (3) providing to the indemnitor, at the indemnitor’s cost, all reasonable assistance. Sections7 through 7.2 state each indemnitee’s exclusive remedies and the indemnitor’s sole obligations related to the subject matter of these sections.
8. Limitation of Liability.
8.1 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (i) AUXI’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, (ii) RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD, (iii) AUXI’S REMEDIATION OBLIGATIONS IN SECTION 5.3; OR (iv) CUSTOMER’S PAYMENT OBLIGATIONS,
(a) IN NO EVENT SHALL EITHER PARTY'S (OR AUXI’S AFFILIATES’ OR THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWELVE (12) MONTH PERIOD).
(b) AUXI’S AGGREGATE LIABILITY FOR ITS BREACH OF THIS AGREEMENT (INCLUDING THE DATA PROCESSING EXHIBIT) RESULTING IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, OR BREACH OF ITS SECURITY, PRIVACY AND/OR CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWENTY-FOUR (24) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE SECOND ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWENTY-FOUR (24) MONTH PERIOD).
8.2 EXCLUSION OF DAMAGES. EXCEPT WITH RESPECT TO AMOUNTS TO BE PAID BY EITHER PARTY PURSUANT TO A COURT AWARD OR SETTLEMENT AS WELL AS THE DEFENSE COSTS UNDER THE INDEMNIFICATION OBLIGATIONS NO MATTER HOW SUCH DAMAGES MAY BE CHARACTERIZED, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. CUSTOMER WILL NOT ASSERT THAT ITS PAYMENT OBLIGATIONS AS SET FORTH IN AN ORDER FORM ARE EXCLUDED AS AUXI’S LOST PROFITS.
8.3 DIRECT DAMAGES. SUBJECT TO SECTION 8.1 AND NOTWITHSTANDING SECTION 8.2 ABOVE, THE PARTIES AGREE THAT WITH RESPECT TO AUXI’S BREACH OF ITS OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE FOLLOWING SHALL BE CONSIDERED DIRECT DAMAGES AND AUXI SHALL REIMBURSE CUSTOMER FOR REASONABLE COSTS AND EXPENSES ACTUALLY PAID TO THIRD PARTIES FOR: (i) AMOUNTS PAID TO AFFECTED THIRD PARTIES AS DAMAGES OR SETTLEMENTS ARISING FROM SUCH BREACH; (ii) FINES AND PENALTIES IMPOSED BY GOVERNMENTAL AUTHORITY ARISING FROM SUCH BREACH; AND (iii) LEGAL FEES, INCLUDING REASONABLE ATTORNEYS’ FEES, TO DEFEND AGAINST THIRD PARTY CLAIMS ARISING FROM SUCH BREACH.
9. Term & Termination.
9.1 Term of Agreement. The Term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties. Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Order Form.
9.2 Termination. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event 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. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon any termination by Customer pursuant to this section, Auxi shall refund Customer any prepaid fees for the affected Service that were to be provided after the effective date of termination.
9.3 Effect of Termination. Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under the section entitled “Retrieval of Customer Data”) and Auxi Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Auxi prior to the effective date of termination and termination for any reason other than for uncured material breach by Auxi shall not relieve Customer of the obligation to pay all future amounts due under all order forms.
9.4 Retrieval of Customer Data. Upon written request by Customer made prior to any expiration or termination of this Agreement, Auxi will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to sixty (60) days after such request is received by Auxi. After such sixty (60) day period, Auxi will have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data by deletion of Customer’s Tenant; provided, however, that Auxi will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Auxi will continue to protect the Customer Data in accordance with this Agreement. The foregoing deletion obligation will be subject to any retention obligations imposed on Auxi by Law. Additionally, during the Term of the Agreement, Customers may extract Customer Data using Auxi’s standard web services.
9.6 Surviving Provisions. The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) sub-clause (i) of Section 1.1 “Auxi Obligations”; (ii) Section 3.2 “Grant of Rights”; and (iii) any Order Form(s). All other provisions of this Agreement shall survive any termination or expiration of this Agreement.
10. General Provisions.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
10.2 Publicity Customer hereby grants Auxi the non-exclusive right to publicly identify Customer as a user of Company's SaaS platform and to use Customer's name and logo in Company's sales and marketing materials, including but not limited to websites, brochures, social media, and presentations
11. Definitions.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement, including the Auxi Production Support and Service Level Availability Policy (as may be updated from time to time), any exhibits or attachments hereto, and any fully executed Order Form.
“Authorized Parties” means Customer’s or an authorized Affiliate’s Employees and third party providers authorized to access Customer’s Tenants and/or to receive Customer Data by Customer (i) in writing, (ii) through the Service’s security designation, or (iii) by system integration or other data exchange process.
“Confidential Information” means (a) any software utilized by Auxi in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).
“Customer Data” means the electronic data or information submitted by Customer or Authorized Parties to the Service.
“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Employees and Authorized Parties relating to the operation or functionality of the Service.
“Documentation” means Auxi’s user guide and technical documentation for the Service which may be updated by Auxi from time to time.
“Employee” or “Worker” means employees, consultants, contingent workers, independent contractors, and retirees of Customer and its Affiliates whose business record(s) are or may be managed by the Service and for which a subscription to the Service has been purchased pursuant to an Order Form.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation, as developed by Auxi and made generally available for Production use without a separate charge to Customers.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“Order Form” means the separate ordering documents under which Customer subscribes to the Auxi Service pursuant to this Agreement that have been fully executed by the parties.
“Personal Data” means any information that is related to an identified or identifiable individual and has been provided by Customer or its Affiliates as Customer Data within the Auxi Service to enable Auxi to Process the data on its behalf.
“Production” means the Customer’s or an Employee’s use of or Auxi’s written verification of the availability of the Service (i) to administer Employees; (ii) to generate data for Customer’s books/records; or (iii) in any decision support capacity.
“Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Customer Data; provided that an incidental disclosure of Customer Data to an Authorized Party or Auxi, or incidental access to Customer Data by an Authorized Party or Auxi, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any applicable Law and (ii) any security breach (or substantially similar term) as defined by applicable Law.
“Service” means Auxi’s software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.
“Subscription Service Fee” means all amounts invoiced and payable by Customer for the Service.