Axcient Systems Partner Agreement
This Agreement (“Agreement“) is entered into between the particular Axcient company (“Axcient“) and the Partner (“Partner“) identified on an order form entered into by Axcient and Partner or by Partner with an authorized Axcient distributor (“Order Form”). Axcient and Partner are herein sometimes referred to individually as a “Party” and collectively as the “Parties”. The purpose of this Agreement is to define the terms of the relationship between the Parties for allowing Partner to offer Axcient products and services for end use by the Partner and the Partner’s end-user clients. For good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
- Component Licensors. “Component Licensor(s)” shall mean persons and entities that have licensed software to Axcient that Axcient has bundled or otherwise included in the Services.
- End-User. “End-User” shall mean an end user of any of the Services. Partner will be considered an End-User where Partner is also an end user of Services.
- Service(s). “Service(s)” shall mean the subscription services, including any Software included as part of the Services, and all components thereof, offered by Axcient and subscribed for by Partner, and set forth in one or more Order Forms entered into by the Parties or by Partner with an authorized Axcient distributor.
- Software. “Software” shall mean any client computer programs or software-as-a-service offered by Axcient as part of the Services, including component software licensed from Component Licensors, and the corresponding Documentation. Software includes any corrections, enhancements, updates, or other modifications, including custom modifications, to such computer programs and user manuals.
- Hardware. “Hardware” shall mean any hardware products sold, rented or leased by Axcient to Partner in connection with the use of the Services, and set forth in one or more Order Forms entered into by the Parties or by Partner with an authorized Axcient distributor.
- Rights; Terms and Conditions.
- Grant of Rights. During the Term, subject to the terms and conditions herein, Axcient grants to Partner a non-exclusive, non-assignable, non-transferable, limited right to: (i) market and promote the Services to End-Users and (ii) if applicable, install or assist in the installation of the Services at such End-User’s premises. Partner may only market Services to End-Users; Partner is not authorized to sell, distribute or otherwise provide any Services to resellers, distributors or other third party of any kind without the prior written consent of Axcient. Certain responsibilities of each Party pursuant to the terms of this Agreement are outlined in Exhibit A to this Agreement; however, such listing is not intended to be an all-inclusive list of a Party’s responsibilities and obligations pursuant to this Agreement.
- Use. Partner agrees to (and will ensure that each End-User agrees to) the “Terms of Service” available at [https://axcient.com/master-terms-of-service/]. All use of the Services by Partner and its End-Users is subject to and governed by such Terms of Service. Partner will be considered an End-User for purposes of this Agreement with respect to Services used by Partner as an end-user. Partner will be responsible and liable for its End-Users use of the Services and any violation of the Terms of Service by any End-User.
- Copies. Copies of any Software may only be made in accordance with the Terms of Service and any end user license agreement governing such Software or the related Services. Upon termination of this Agreement, Partner and Partner’s End-Users must cease use of the Services and, if applicable, uninstall, erase, and destroy all Software.
- Restrictions. Except as expressly authorized in this Agreement, Partner shall not: (i) disassemble, decompile or otherwise attempt to reverse engineer any portion or component of the Services; (ii) copy, alter, use, or modify any portion or component of the Services or any user documentation or other operating, training, or reference manuals provided with respect to the Services (“Documentation”); (iii) use the Services or Documentation for any purpose, at any location or in any manner not specifically authorized by this Agreement; (iv) make or retain any copy of the Services or Documentation except as specifically authorized by this Agreement; (v) modify, adapt, translate or create derivative works based upon the Services or Documentation, or combine or merge any part of the Services or Documentation with or into any other software or documentation; (vi) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any copy of the Services or Documentation, or fail to preserve all copyright and other proprietary notices in any copy of the Services or Documentation; (vii) sell, market, license, sublicense, distribute or otherwise grant to any third party, including any customer, outsourcer, vendor or consultant of Partner, any right to use the Services or Documentation, except as described and agreed to in this Agreement; (viii) authorize anyone to use the Services except as authorized by the Terms of Service and any applicable end user license agreement; (ix) use the Services except as described and agreed to in this Agreement.
- Marks. During the term, Axcient grants to Partner a limited, non-exclusive, nontransferable, non-assignable license to use the trademarks, trade names, service marks, service names, and similar designations of Axcient and of Component Licensors that Axcient, in writing, expressly permits Partner to use (the “Marks”), solely in connection with the marketing of the Services, provided that Partner is in compliance with all trademark policies of Axcient and any applicable Component Licensors. Partner shall not, during the term, assert or claim any interest in any such Marks or take any action that might adversely affect the validity or enforceability of any such Marks or the rights of Axcient or Component Licensors or suppliers therein. Partner’s use of such Marks shall inure to the benefit of Axcient or its Component Licensors or suppliers, as applicable. Notwithstanding the foregoing, upon this Agreement’s termination or the earlier discontinuance of the right of Partner to market the Services and, at Axcient’s written request, Partner shall take all action reasonably necessary to transfer and assign to the applicable owner thereof any right, title or interest in or to any of the Marks, and the related goodwill, that Partner may have acquired while marketing the Services. Partner is not permitted to use any Axcient or third party trademarks, trade names, service marks, or service names in connection with any domain name. Partner hereby agrees if any such marks are included in a domain name owned by the Partner, Partner shall assign all right, title, interest and ownership rights in the domain name to Axcient or the appropriate third party upon request and at no cost to the owner of the mark.
- Service Levels. Axcient agrees to provide the Services in accordance with the Axcient Cloud Services SLA set forth at [https://axcient.com/cloud-service-sla/] (the “SLAs”). In the event Axcient fails to meet the requirements set forth in the SLAs, Axcient’s sole obligation and Partner’s sole remedy shall be for Axcient to provide Partner with the service level credits set forth in the SLA
- Branding. During the term, Partner may market the Services under its own brand, subject to the obligations and restrictions set forth in this Agreement.
- No Stand-Alone Use of Components. At no time may any component of the Services be separated from the Services or used in a stand-alone fashion, except as necessary for debugging, testing, maintenance or support purposes by Partner in coordination with Axcient.
- Documentation. Axcient will provide Partner with English language Documentation for the Services in electronic form only. Partner may use and distribute the Documentation, solely in connection with Partner providing services authorized hereunder to Partner’s End-Users. Partner may (i) reproduce and distribute the Documentation, either separately with respect to applicable components, or at the direction of Axcient, in combination with the other Axcient documentation, in hard copy as well as in electronic form solely for the aforementioned permitted use. Partner shall not change the Documentation without Axcient’s prior written consent. All Documentation distributed by Partner shall bear a proprietary rights legend as provided to Partner by Axcient.
- Discontinuance. Axcient may discontinue this Agreement prior to the end of the term, without any liability from Axcient to Partner, and terminate the subscription and license of the right of Partner and its End-Users to use the Services (i) six (6) months from the date Axcient gives Partner written notice of Axcient’s discontinuance; or (ii) ninety (90) days from the failure of any Component Licensor to offer or support the licensed Software within the Services. Any such discontinuance of a component of the Services shall not terminate or otherwise affect the Agreement.
- Versions. Partner acknowledges that Axcient may provide to Partner changes or modifications at any time to the version of the Services that are current at the time of execution of this Agreement. Upon any such change or modification, Partner shall cooperate with Axcient in the incorporation of such change or modification in all copies of the Services in the possession of Partner or its End-Users. Partner may only market the most recent version of the Services provided by Axcient, unless otherwise agreed upon between the Parties in writing.
- No Rental. Except as otherwise expressly provided by this Agreement, Partner and Partner’s End-Users may not, directly or indirectly, rent, lease, lend, pledge, or transfer the Services to any third party, and may not permit any third party to have access to or use the functionality of the Services.
- Export Restrictions. The Services and Hardware are of United States origin for purposes of United States export control laws. Partner agrees to comply and cause its End-Users to comply with all applicable United States and international laws and regulations that apply to the Services and Hardware and any export of the Services and Hardware outside the United States. Partner shall not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any of the Services, Hardware or any other technical materials (collectively, “Export Materials”) to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons, as each may be amended from time to time. Partner represents and warrants that Partner and each of its employees, contractors, agents, consultants, and End-Users who has access to the Export Materials (i) is not an individual located in a Restricted Nation; (ii) is not a business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (iii) is not a government of a Restricted Nation; (iv) is not a business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; and (v) is not an individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons. Partner will defend, indemnify, and hold Axcient, and its directors, employees, shareholders, agents, suppliers, or representatives harmless from and against any and all losses, damages, costs, and expenses, including legal fees, incurred directly or indirectly as a consequence of Partner’s failure to comply with this Paragraph.
- United States Government Restricted Rights. RESTRICTED RIGHTS LEGEND. All Services, including Software licensed from Component Licensors, are commercial in nature. The Services and Documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1) and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Services and its Documentation are licensed to the United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement and the applicable end user license agreements.
- Network Configuration Utility Notice. Where applicable with respect to certain Services, Partner acknowledges that the ShadowProtect component of the Software includes the Network Configuration Utility based on a derivative created by StorageCraft under a license granted by Pierre Mounir (The Truth), a proprietary software copyrighted © 2003-2010 with all rights reserved.
- Reporting. Upon request by Axcient from time to time, Partner will provide Axcient with a written sales report in a form and content acceptable to Axcient. Partner shall provide the report to Axcient within fourteen (14) days after such request. The report will include, without limitation, a list of all Services licensed by or through Partner and the End-Users of such Services, Partner’s marketing efforts and potential new End Users for the Services and such other information as reasonably requested by Axcient.
- Subscriptions. Partner hereby (i) subscribes for the Services set forth in the Order Form (which Services are the initial services being subscribed for by Partner from Axcient and re-sold to Partner’s End-Users), and (ii) purchases, rents or leases, as indicated in the Order Form, the Hardware set forth in such Order Form. If any Hardware is included on an Order Form, the terms and conditions contained on Attachment A hereto shall apply. For any additional sales of subscriptions to Services or sales, rentals or leases of Hardware to Partner after the initial Order Form, Axcient and Partner (or Partner and an authorized Axcient distributor) shall enter into an amendment to the existing Order Form or a new Order Form to document such additional sales.
- Pricing; Payment; Taxes
The Partner agrees to pay for the monthly use by the Partner and Partner’s End-Users as billed each month under the terms outlined in Exhibit B. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in US dollars or local currency as outlined in the Order Form and are nonrefundable. Partner shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added, or other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, except any taxes on the income or any right to do business of Axcient and its Component Licensors, as applicable. If Axcient pays for any such taxes that are the responsibility of Partner under the preceding sentence, Partner shall promptly reimburse Axcient for all such payments.
Partner acknowledges that, except for the rights expressly granted herein, Axcient or its Component Licensors and suppliers, as applicable, own, and retain all right, title and interest in and to the Services, including (i) all copyrights, patent rights, trade secret rights, as well as any and all other intellectual property and proprietary rights in or to the Services and the Documentation, and all copies thereof, and (ii) all service marks, trademarks, trade names or any other designations of Axcient or such Component Licensors and suppliers. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, protect the Services. Partner’s or Partner’s End-User’s possession, access, or use of the Services does not transfer to Partner or Partner’s End-User any ownership of the Services or of any intellectual property rights. Any service or product enhancement suggestions made by Partner or End-User to Axcient become the property of Axcient, and if Axcient implements such enhancements, the resulting enhancements will be exclusively owned by Axcient.
- Confidential Information; Privacy
- Confidentiality. Each Party may disclose to the other Party certain Trade Secrets and Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information that is a trade secret under applicable law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information; the “Disclosing Party” refers to the Party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents or by observation; and “Recipient” refers to the Party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient’s employees, providers or agents. Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. Partner acknowledges that the Services and related materials are the Proprietary Information of Axcient or its Component Licensors and other providers. The obligations in this Paragraph shall continue for so long as such information constitutes Proprietary Information. The foregoing obligations shall not apply if and to the extent that Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement.
- Disclosures Required By Law. Partner acknowledges that Axcient may have to provide Partner’s or its End-Users’ Proprietary Information or other data or information if Axcient or its licensors or providers are ordered by an administrative agency, court or other governmental body of competent jurisdiction to disclose such information, and Partner agrees and consents to such disclosure.
- Use and Training
Partner shall limit the use of the Services to persons who have been appropriately trained. Axcient offers a variety of online training options and access to electronic documentation. For additional training over the standard training provided, Partner shall be responsible for paying Axcient’s then current charges for the provision of such additional training, including, but not limited to, the services of Axcient’s trainers, whose services shall be billed at the then current rate for all hours, including travel time incurred in connection with such training and all costs for transportation, lodging, meals and incidental expenses incurred in connection with such training.
- Disclaimer of Warranty
PARTNER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AXCIENT AND ITS COMPONENT LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AXCIENT AND ITS COMPONENT LICENSORS DO NOT WARRANT THAT (a) THE SERVICES WILL MEET PARTNER OR END-USER’S REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (c) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. PARTNER ACKNOWLEDGES THAT AXCIENT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AXCIENT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Partner acknowledges that the Services may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Services could lead to death, personal injury, or severe physical, property or environmental damage. Partner agrees not to use the Services in such environments and shall cause its End-Users not to use the Services in such environments.
- Limitations Period
No arbitration or other action under or arising out of this Agreement may be brought by either Party against the other more than one (1) year after the cause of action arises with the exception of a failure by Partner to pay Axcient any amounts due hereunder.
- No Consequential Damages; Limitation of Liability
Except to the extent resulting from a breach by Partner of Paragraph 2 or Partner’s indemnification obligations under Paragraph 11, no Party hereto shall be liable to any other Party hereto, and any Axcient Component Licensor, manufacturer, distributor, or supplier shall not be liable to Partner, for indirect, special, incidental, exemplary or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from any such Party’s use or inability to use the Services and Hardware, arising from any cause of action whatsoever, including contract, warranty, strict liability, or negligence, even if any such Party has been notified of the possibility of such damages. Further, in any event, except to the extent resulting from a breach by Partner of Paragraph 2 or Partner’s indemnification obligations under Paragraph 11, any liability of Axcient, Partner or any Component Licensor arising out of this Agreement shall not exceed the amount of fees received by Axcient from Partner relevant to the scope of the incident during the 12 months prior to when the incident was reported.
- Intellectual Property Indemnification
Axcient will defend Partner against any claims, actions, suits, demands, obligations, and proceedings (“Claims”) made or brought against Partner by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify Partner from any damages, attorney fees and costs finally awarded against Partner as a result of, or for amounts paid by Partner under a court-approved settlement of, any such Claim. If Axcient receives information about an infringement or misappropriation claim related to the Services, Axcient may in its discretion (i) modify the affected Services so that they no longer infringe or misappropriate, (ii) obtain a license for Partner’s and its End-Users’ continued use of the affected Services in accordance with this Agreement, or (iii) terminate Partner’s rights to the affected Services and refund to Partner any unused prepaid fees covering the remainder of the term of the terminated subscriptions. This Paragraph states Axcient’s sole liability to Partner, and Partner’s exclusive remedy against Axcient, for a claim of infringement or misappropriation.
- Partner Indemnity
Partner will, at its expense, defend, indemnify, and hold harmless Axcient and its affiliates, and their respective employees, officers, directors, suppliers, providers, Component Licensors, suppliers, vendors and agents (“Axcient Indemnitees”) from and against any and all Claims of any kind threatened, asserted, or filed against Axcient Indemnitees, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) a breach by Partner of this Agreement or a breach by Partner and any End-User of the Terms of Service; (b) any actual or alleged infringement or violation of any copyright, trademark, trade secret, or other proprietary right of a third party by Partner or an End-User; (c) any act or omission by Partner or an End-User or anyone acting on their behalf; or (d) Partner’s or an End-User’s data and use of the Services.
- Indemnity Procedure
The indemnifying Party’s obligations in Paragraphs 10 and 11 are subject to the Party seeking to be indemnified: (a) providing the other Party reasonably prompt notice in writing of any such Claim; (b) providing the other Party information, assistance, and authority, at the indemnifying Party’s expense, to help the indemnifying Party to defend such Claims; and (c) giving the indemnifying Party sole control of the defense and settlement of the Claim. The indemnifying Party will not have any right, without the indemnified Party’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement, blame, or wrongdoing (whether in contract, tort, or otherwise) on the part of the indemnified Party or otherwise requires the indemnified Party to take or refrain from taking any material action (such as the payment of fees).
- Term and Termination
- Effective Date; Term of Agreement and Order Form; Automatic Renewal. The term of this Agreement shall commence on execution of the first Order Form by Partner and Axcient (or by Partner with an authorized Axcient distributor) and continue until the expiration or termination of all outstanding Order Forms. The term of each Order Form shall be as set forth in such Order Form, and such term shall automatically renew for an unlimited number of renewal terms equal to the original term of the Order Form, unless either party provides the other party with written notice of its intention that such Order Form terminate and not renew at least 30 days prior to the expiration of the then current term. If neither party gives written notice of its intention that such Order Form terminate by the deadline set forth above, the term shall automatically renew for the period as set forth above.
- Payment Delinquency. In the event of Partner is past due on any payment obligations hereunder, Partner may not add any new services or access support services. If Partner is past due on payment obligations for fifteen (15) or more days, Axcient has the right to suspend Partner’s access to all Services.
- Termination. Axcient may terminate this Agreement and/or any Order Forms (i) immediately upon Partner’s breach of Paragraph 2, (ii) upon Partner’s material breach of this Agreement (other than the breaches under (i) above) if such breach is not cured within thirty (30) days of written notice; or (iii) upon Partner’s filing a petition in bankruptcy, being adjudicated bankrupt, not dismissing a petition in bankruptcy that is filed against it within ninety (90) days of filing, becoming insolvent, making an assignment for benefit of creditors, or upon the appointment of a receiver. Partner may terminate this Agreement and/or any Order Forms upon Axcient’s material breach of this Agreement if such breach is not cured within thirty (30) days of written notice.
- Obligations Upon Termination. In the event of the termination of this Agreement, all rights granted herein to Partner will terminate and Partner must stop using and accessing the Services and Documentation and destroy all copies of the Services, Documentation and other Axcient Proprietary Information in its possession or control. In the event of termination by Axcient under the first sentence of the prior bullet point titled “Termination”, (i) Axcient may thereafter provide the Services to Partner’s End-Users or direct such End-Users to another partner designated by Axcient to obtain the Services, and (ii) Partner shall cooperate with Axcient in: (a) the removal and deactivation of all copies of the Services from the computers on which they are installed; (b) removal or destruction of all media containing the Services, and (c) transferring Partner’s End-Users to Axcient or another partner designated by Axcient.
Partner shall not assign or otherwise transfer this Agreement without the prior written consent of Axcient, which consent shall not be unreasonably withheld. Axcient’s consent to any such request for assignment or transfer from Partner shall be conditioned upon the Partner’s assignee or transferee assuming liability under this Agreement or signing a similar agreement with Axcient.
- Force Majeure
Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than obligations to pay money) if such delay or failure arises by any reason beyond its reasonable control, including, without limitation, any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, or failures or delay in transportation or communications; provided, however, that lack of funds shall not be deemed to be a reason beyond a Party’s reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement.
The Parties shall settle any dispute, claim or controversy arising out of this Agreement, and including any dispute as to the enforceability of this arbitration provision, by arbitration in Denver, Colorado, in accordance with the Commercial Arbitration rules of the American Arbitration Association. After a demand for arbitration, the Parties shall attempt to agree upon a single arbitrator to arbitrate the dispute. If the Parties do not agree upon an arbitrator within thirty (30) days of the applicable demand for arbitration, then the Parties agree that the dispute shall be arbitrated before a single arbitrator appointed by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator may award injunctive relief, actual damages, and attorneys’ fees and costs as part of the award, but shall have no authority to award any penalties or any special, consequential, punitive, or exemplary damages or to alter or modify any express provision of this Agreement or to render any award which by its terms affects such a modification or alteration. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction, including either of the two courts referred to in Paragraph 18 of this Agreement. The Parties consent to the jurisdiction of such courts referred to in Paragraph 18 for such purpose. Notwithstanding the foregoing, nothing in this Paragraph 16 shall preclude a Party from seeking and obtaining injunctive relief in either of the two courts referred to in Paragraph 18, or in any other Court having jurisdiction where Axcient is the Party seeking the injunction, based upon a breach of this Agreement or facts arising out of this Agreement where such Party does not have an adequate remedy at law.
All notices under this Agreement are to be delivered by (i) depositing the notice in the mail, using certified mail, return receipt requested, addressed to the address below or to any other address as the Party may designate by providing notice, (ii) overnight delivery service addressed to the address below or to any other address as the Party may designate by providing notice, or (iii) hand delivery to the individual designated below or to any other individual as the Party may designate by providing notice. The notice shall be deemed delivered (i) if by certified mail, on the day of delivery, or five (5) business days after the date of the first attempted delivery, whichever date is sooner, (ii) if by overnight delivery service, on the day of delivery, and (iii) if by hand delivery, on the day of hand delivery.
IF TO AXCIENT:
707 17th St. Suite 3900
Denver, CO 80202
IF TO PARTNER:
The legal address provided on the Order Form will be used for notices sent to the Partner unless Partner designates another address by providing notice.
- General Provisions
- Complete Agreement. The Parties agree that this Agreement and all Order Forms (along with the Exhibits attached hereto and any other terms, conditions, policies and agreements incorporated herein or in the Order Form by reference) is the complete and exclusive statement of the agreement between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the Parties relating to this Agreement. Any conflict between this Agreement, the Terms of Service and the Order Form shall be resolved in the following order of preference: (i) the Order Form, this Agreement and the Terms of Service.
- No Change to Standard Contract Form Language. No change to this standard Axcient contract form will be effective, even if Axcient signs the Agreement after the change, unless the change is conspicuous and is initialed by the all of the Parties to this Agreement.
- Amendment. This Agreement may not be modified, altered, or amended except by written instrument duly executed by all Parties.
- Waiver. The waiver or failure of any Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
- Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
- Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of Colorado without regard to its conflicts of laws doctrines.
- Future Software Development. The Parties hereto recognize that from time to time Axcient may offer additional software or other services for Partner to resell to Partner’s End-Users, or obtain the desired software through a license with a third party licensor. In such event, such additional software or other services shall be licensed by Axcient to Partner on the same terms and conditions as set forth in this Agreement. Axcient shall have no obligation to develop any additional software or to obtain a license for such software from a third party.
- Jurisdiction. The Parties agree that the United States District Court for the District of Colorado shall have jurisdiction, subject only to the limitations of that jurisdiction, over any disputes arising from this Agreement which are not subject to arbitration in accordance with Paragraph 16 of this Agreement. If that court lacks jurisdiction, the Parties agree that jurisdiction shall be with the District Court of Denver County, Colorado. Axcient and Partner hereby consent to the jurisdiction of such Courts and agree that such Courts shall have exclusive jurisdiction for such disputes, unless they decline to accept jurisdiction of such matters.
- Headings and References. The headings to the Paragraphs of this Agreement are inserted for convenience of reference and shall not constitute a part hereof. As used herein and unless the context requires otherwise, all references to the singular shall include the plural, references to the plural shall include the singular, and all references to the masculine or neuter genders shall include the feminine gender and vice versa.
- Construction. The Parties hereto acknowledge that they have been represented by counsel or have had the opportunity to be represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or ruling of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document. Each Party shall be deemed to have participated equally in the drafting of this Agreement.
- Independent Contractors. The Parties acknowledge and agree that the relationship of the Parties under this Agreement is that of independent contractors. Neither Party shall represent itself as a legal partner, joint venturer, agent, employee, or representative of the other.
EXHIBIT A TO
Axcient Partner Agreement
Axcient will have the following responsibilities under this Agreement, in addition to any other responsibilities provided by other portions of the Agreement, subject to and in accordance with the terms of this Agreement:
- Axcient will provide the Partner, with the Services and Hardware as indicated in an Order Form. For any branded Software that are part of the Services, Axcient will provide one branded version to the Partner excluding Android and IOS applications. Additional branded versions will be provided, if required, for $250 each.
- Axcient will set the Partner up with the access and tools needed to provide, manage and support Partner’s End-Users.
- Axcient will provide the software, datacenter and equipment needed to operate and manage the datacenter server to deliver the Services outlined in this Agreement.
- Axcient will provide 2nd level support to the Partner as needed. Axcient will not be responsible for providing support directly to End-Users.
- Axcient will provide documentation and other materials electronically.
- Axcient will provide installation and training to Partner via phone/Internet.
Partner will have the following responsibilities under this Agreement, in addition to any other responsibilities provided by other portions of the Agreement, subject to and in accordance with the terms of this Agreement:
- Partner will use commercially reasonable efforts to endorse and promote the Axcient Services. Partner will adhere in good faith to all written Axcient Partner requirements, and in particular agrees to (i) conduct its business in a professional manner in accordance with computer services industry standards, and (ii) not disparage, directly or indirectly Axcient or the Axcient Services.
- Partner will be responsible for identifying and procuring all of Partner’s End-Users.
- Partner will be responsible for installing All Services, including any Software and Hardware, for each End-User.
- Partner will be responsible for billing and collecting from Partner’s End-Users.
- Partner will be responsible for providing 1st level support to Partner’s End-Users.
- If any agreement between Partner and its End-User for Axcient’s Services (“End-User Agreement”) terminates for any reason, Partner will within thirty (30) days of such termination retrieve from its End-User any Axcient property (“Axcient Property”) and return such Axcient Property to Axcient at Partner’s expense. Termination of any End-User Agreement shall not terminate, reduce or otherwise affect Partner’s subscription to Axcient’s Services, which subscription shall continue for the full term set forth in the Order Form.
- During the term of this Agreement, Partner shall carry and maintain in full force and effect professional liability insurance, errors and omissions insurance and cyber liability insurance, each in the amount of at least one million dollars ($1,000,000), shall name Axcient as an additional insured thereon and shall provide Axcient with a certificate of insurance evidencing such coverage.
EXHIBIT B TO
Axcient Partner Agreement
Pricing, Services, Signup Terms and Conditions
Partner agrees to pay for all Services and Hardware utilized by Partner and Partner’s End-Users by the due date of each invoice received.
Pricing – All Services and Hardware will be charged at the rates set forth in the Order Form, as updated through any pricing changes described below. All amounts are in US dollars or local currency as outlined in the Order Form.
Price Changes – Pricing may change for any renewal term under an Order Form by notice from Axcient to Partner at least 30 days in advance of the renewal term.
Additional Services – For any Services requested by Partner that are not set forth in an Order Form (such as extra training, customization charges, onsite service/support, emergency restore and overnight data restoration) are not included in the pricing in the Order Form and will be billed separately as needed at Axcient’s then current rates.
Overages – If Partner or its End-Users exceed any monthly maximum usage, number of users or other metrics (as indicated in an Order Form or pursuant to Axcient’s policies), Axcient will bill for such overages at its standard overage rates.
Payment Terms – Payment for all Services, additional Services, overages and rental or lease payments for Hardware are due no later than 5 days after the date of Axcient’s invoice to Partner. Unless otherwise agreed to by Axcient in writing, all payments must be made through an automatic charge to Partner’s bank account (via ACH) or credit card. Partner must have a valid bank account or credit card on file to permit such charges and Partner hereby authorizes Axcient to fully charge the bank account or credit card on file for all monthly charges and other amounts due hereunder. If a charge is declined due to insufficient funds, lack of credit availability or other reasons, Axcient may re-charge one or more times. If Axcient is not able to collect payment for all amounts due by charging the bank account or credit card on file, Partner shall immediately pay all such amounts due to Axcient. Axcient may also use a third party payment processor to initiate and process the charges against the bank account or credit card on file. If Partner is paying by check and is past due on any payment, (i) Axcient may charge Partner’s bank account (via ACH) or credit card for all past due amounts, (ii) all further payments shall be made by automatic charge to Partner’s bank account (via ACH) or credit card, (iii) Partner authorizes all such charges, and (iv) Partner shall provide Axcient with its current bank account information or credit card details.
Past Due Interest – Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or at the highest rate permitted by applicable law (if lower) on the remaining amount required to be paid, such interest to accrue on a daily basis from the due date until the remaining amount is paid.
Collections Expense – In the event that Partner fails to pay Axcient any amounts due under this Agreement, Partner will pay Axcient all costs of collection, including reasonable attorneys’ fees, incurred in enforcing this Agreement.
Any Hardware sold, rented or leased to Partner is subject to the following terms and conditions. All terms not defined herein shall have the meaning set forth in the Agreement.
Partner may elect to purchase, rent or lease Hardware as indicated in the Order Form. For rentals, the initial term is 18 months, and the rental continues thereafter on a month to month basis. The initial 18 month term is non-cancellable, meaning that Partner may not terminate the rental during such 18 month term. After the initial 18 month term, Partner may terminate on 30 days’ prior written notice to Axcient. For leases, the term is 12, 24, or 36 months. The term is non-cancellable, meaning that Partner may not terminate the lease during such 12, 24 or 36 month term. Axcient hereby reserves, and Partner hereby grants to Axcient, a purchase money security interest in the Hardware. Partner’s failure to pay any amount when due shall give Axcient the right to repossess and remove the Hardware. Partner agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as Axcient may reasonably request in order to perfect Axcient’s security interest in the Hardware.
Software embedded within Hardware may only be licensed, not sold. Axcient hereby grants Partner (and its End-User) a nonexclusive, nontransferable, worldwide right to access and use the Software for the duration of the term solely as necessary to use the Services for Partner’s and End-User’s internal business purposes. Software may only be used in connection with the specified number of Hardware in the applicable Order Form. Partner, on behalf of itself and its End-User, acknowledges that the Hardware contains or is provided with copyrighted Software of Axcient’s suppliers (“Third Party Software”). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Partner’s and End-User’s use of any Third Party Software shall be subject to, and Partner and End-User shall comply with, the applicable restrictions and other terms and conditions set forth (a) in this Agreement or the Documentation applicable to Software and (b) in such Third Party Software documentation or printed materials.
THE HARDWARE AND THIRD PARTY SOFTWARE ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, FROM AXCIENT; HOWEVER, AXCIENT WILL PASS THROUGH ANY TRANSFERRABLE WARRANTIES FROM THE HARDWARE MANUFACTURER.
Axcient may access Partner’s and End-User’s account and the Hardware in connection with providing technical support or respond to complaints about the Axcient Services or Software. Axcient shall also have the right, but not the obligation, to monitor the Axcient Services and Software to determine compliance with this Agreement, including the use rights and restrictions set forth herein.
Unless otherwise provided in an Order Form, Axcient shall ship Hardware to Partner FCA (Incoterms 2010) Axcient’s shipping point designated by Axcient (the ‘Axcient FCA Point’). Upon delivery to Partner’s carrier at the Axcient FCA Point, Partner shall be responsible for and bear the entire risk of loss and damage to any Hardware (including insurance charges). As between Partner and Axcient, title to any Software incorporated in the Hardware remains with Axcient or its licensor at all times. If Partner purchases Hardware, title to such Hardware shall pass to Partner upon delivery at the Axcient FCA Point, but subject to Axcient’s security interest as provided above. If Partner rents or leases Hardware, title to such Hardware shall remain with Axcient. All delivery dates are estimates only. Partner agrees that Hardware shall be deemed irrevocably accepted upon delivery.
Upon termination of the Agreement, Partner shall promptly return and/or certify destruction, at Axcient’s option, of all copies of the Axcient Software and Documentation. Partner shall certify in writing within five (5) business days of termination that it has complied with this requirement and that no Axcient Software is being used or retained on any Hardware. Partner shall, at its own expense, return all rented and leased Hardware to Axcient within thirty (30) days after such termination, but Partner remains fully obligated for all remaining rental or lease payments due during the full term of such rental or lease (monthly rental or lease payment multiplied by the number of months remaining in the applicable term).
Hardware Payment Terms – If Partner purchases Hardware, full payment for such Hardware is due within 5 days after the date of Axcient’s invoice. If Partner elects to rent or lease Hardware, the monthly rental or lease payment is due within 5 days after the date of Axcient’s invoice. Hardware will not ship until payment is made (either full payment for a purchase or the first monthly payment for a rental or lease). Partner is liable for all monthly payments for the full rental or lease term and is not released from such payment obligations by returning Hardware.