Axcient Master Subscription Agreement

IMPORTANT – PLEASE READ CAREFULLY: THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND AXCIENT (“AXCIENT,” WE,” “US,” OR “OUR”) AND GOVERNS YOUR USE OF THE AXCIENT SERVICES. AXCIENT AND YOU MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS “PARTIES.”

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN AXCIENT ORDER FORM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE AXCIENT SERVICES.

This Agreement was last updated on November 29, 2016. It is effective between You and Axcient as of the date you accept this Agreement (“Effective Date”) as set forth above.

You may not access the Axcient Services if you are Axcient’s direct competitor, except with Axcient’s prior written consent. In addition, you may not access Axcient Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking purposes.

TERMS AND CONDITIONS

This Agreement governs Your access and use, and Our provision, of the Axcient Services.

1. DEFINITIONS.

1.1. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or Control of more than fifty percent (50%) of the voting interests of the subject entity.

1.2. “Axcient Services” means the off-site automated data protection, backup, and recovery services that are ordered by You under an Order Form, in connection with Your use of any licensed Software therein.

1.3. “Data Center” means the third party location where Axcient stores the backups of Your Data.

1.4. “Documentation” means the then current online user guides, documentation, and help and training materials which are published and made generally available by Axcient for the Axcient Service.

1.5. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including but not limited to, viruses, worms, time bombs and Trojan horses.

1.6. “Order Form” means an ordering document specifying the hardware and services to be provided hereunder that is signed by an authorized representative of both You and Us or any of Our Affiliates, including any addenda and supplements thereto.

1.7. “Software” means any computer program, in object code format, including without limitation firmware, delivered or downloaded hereunder, whether downloaded or delivered separately, and whether or not there is a separate charge therefor.

1.8. “Subscription Term” means the period of time that You may use and access the Axcient Services as set forth in the applicable Order Form.

1.9. “Users” means employees, agents, contractors, consultants or other individuals who are authorized to use the Axcient Service.

1.10. “Virtual Appliance” means the virtual appliance embedded with the Software used to create local backups of Your Data.

1.11. “Your Data” means electronic data and information submitted by or for You to the Axcient Services or collected and processed by or for You using the Axcient Services.

1.12. “Declared Disaster” means the virtualization of a full or partial environment in the Axcient Cloud for production purposes.  Disasters can be declared in the self-service Axcient Web Application or by calling Axcient Support.

1.13. “Declared Disaster Recovery Test” means the virtualization of a full or partial environment in the Axcient Cloud for test purposes. Disaster recovery tests can be declared in the self-service Axcient Fusion Web Application or by calling Axcient Support.

2. PROVISION OF SERVICES.

2.1. Provision of Axcient Services. Pursuant to the terms and conditions of this Agreement and the applicable Order Forms, We shall provide You during the Subscription Term (a) the Axcient Services (b) online access to Your Data in the form of a backup for restoration and recovery purposes, and (c) Our standard support for the Axcient Services and upgraded support if purchased. We reserve the right to physically ship the backup data on a disk or other reasonable media to You within twenty-four (24) hours of request.

2.2. Restrictions. You shall not, and shall not direct others to, (a) allow access to any of the Axcient Service to anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent, lease, or include in a service bureau or outsourcing offering or otherwise commercially exploit any Axcient Service, (c) use the Axcient Service to store or transmit (1) infringing, libelous, or otherwise unlawful or tortious material, (2) material in violation of third-party privacy rights, or (3) Malicious Code, (d) interfere with or disrupt the integrity or performance of any Axcient Service, (e) attempt to gain unauthorized access to any Axcient Service, or related systems or networks, (f) modify, customize, reverse engineer, reverse assemble or reverse compile the Axcient Service, or any part thereof, (g) frame or mirror any part of any Axcient Service other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (h) access any Axcient Service, in order (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics, or (i) remove any title, trademark, copyright and/or restricted rights notices or labels from the Axcient Service or Documentation.

2.3. Freedom of Action. Nothing in this Agreement shall limit in any way Our right to develop, use, license, create derivative works of, or otherwise exploit the Axcient Service, or to permit third parties to do so.

2.4. Future Functionality. Your purchases and licenses are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

3. RESPONSIBILITIES.

3.1. Our Responsibilities. We will use industry standard security measures to maintain Your Users’ login information (e.g., User IDs and passwords) for the Axcient Services in confidence. All storage, backup and archival media, containing Your Data shall be (a) physically stored in a secure area, (b) logically separated from any other customer’s data, and (c) protected by industry standard encryption methods.

3.2. Your Responsibilities. You shall (a) obtain and maintain all telephone, computer hardware and other equipment needed for access to and use of the Axcient Service and all charges related thereto, (b) be responsible for Users’ compliance with this Agreement, (c) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Axcient Service and notify Us promptly of any actual or suspected unauthorized access or use, (e) use Axcient Service only in accordance with the Documentation and applicable laws and government regulations, and (f) implement reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery.

3.3. Access and Monitoring. We may access Your account as necessary to identify or resolve technical problems or respond to complaints about the Axcient Services. We shall also have the right, but not the obligation, to monitor the Axcient Services to determine Your compliance with the license grant and restrictions set forth herein. Without limiting the foregoing and with two (2) days prior written notice, We shall have the right to remove any material submitted to the Axcient Services that We find to be in violation of the provisions hereof.

4. FEES AND PAYMENTS.

4.1. Fees and Payment. You shall pay us all fees in accordance with the dates and amounts specified in the applicable Order Form. Except as otherwise provided in an Order Form, (a) fees shall be due upon date of invoice, (b) fees are based on Axcient Services ordered and not actual usage, payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased or licensed cannot be decreased during the relevant Subscription Term. Any invoiced amount not received by Us by the due date, without limiting Our rights or remedies, may accrue, at Our discretion, from the date due until paid, a rate equal to the lesser of (i) the maximum amount chargeable by law, or (ii) 1.5% per month. You shall be liable for Our costs of collection, including reasonable attorneys’ fees.

4.2. Taxes. Fees are exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the Axcient Service in countries other than the United States. You are responsible for paying all taxes associated with Your orders hereunder. Any such taxes, duties, or fees that are required to be levied shall be added to the invoice or paid directly by You unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3. Suspension of Service and Dispute. If any amount owed by You is thirty (30) or more days overdue, We may, with five (5) business days’ prior written notice to You, without limiting Our other rights and remedies, suspend your use of the Axcient Services and access to Your Data until such amounts are paid in full. We shall not exercise Our rights under this Section 4.3 (Suspension of Service and Dispute) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. If You believe, in good faith, that an invoice contains incorrect fee information, You shall send a written notice to Us within fifteen (15) days of date of invoice (“Dispute Period”) providing a reasonably detailed explanation of the nature of the dispute. If You do not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, You remain obligated to pay Us for all portions of the applicable invoice that are not under reasonable and good faith dispute. The parties shall work together expeditiously and in good faith to resolve all fee disputes.

5. INTELLECTUAL PROPERTY RIGHTS.

5.1. Reservation of Rights. We reserve and retain all right, title and interest in and to the Axcient Service, Our Confidential Information and Documentation, including, without limitation, all modifications, enhancements and intellectual property rights therein. No rights are granted to You hereunder other than as expressly set forth herein.

5.2. Ownership of Your Data. You own all right, title and interest in and to Your Data and Your Confidential Information. You grant Us a worldwide, limited- term license to host, copy, transmit and display Your Data as necessary for Us to provide the Axcient Services in accordance with this Agreement.

5.3. Feedback and Suggestions. You grant to Us a worldwide, royalty free, perpetual, irrevocable, transferable, sub-licensable license to use and incorporate into the Axcient Services any suggestions, enhancement requests, recommendations, corrections or other feedback provided by You or Users relating to the Axcient Services.

6. CONFIDENTIALITY.

6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms of this Agreement and all Order Forms (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes, Your Data and the Axcient Service.

6.2. Exclusions. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

6.3. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect its own confidential information of like kind but no less than reasonable care. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except as authorized in writing by the Disclosing Party. The Receiving Party shall limit access to Confidential Information to its employees and contractors who have a need to know the information for purposes consistent with this Agreement and who are bound by terms with the Receiving Party containing protections no less stringent than those provided herein. We will notify you promptly in the event of a known security breach related to Your Data. The confidentiality obligations in this section 6 will survive termination of this agreement for a period of 3 years.

6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party shall, to the extent legally permissible, give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.5. Remedies. The parties acknowledge that monetary damages would be inadequate to compensate the Disclosing Party for breach of this Section 6 (Confidentiality) by the Receiving Party and may cause the Disclosing Party irreparable injury. Accordingly, in addition to any other remedies that may be available, in law or in equity, the Disclosing Party may seek injunctive relief to enjoin such disclosure.

7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.

7.1. Mutual Representations and Warranties. Each party represents and warrants that it has the legal authority to enter into this Agreement, and that the person signing this Agreement has the authority to bind such party.

7.2. Our Warranties and Disclaimers. We warrant during the Subscription Term that the Axcient Service will perform in substantial conformance with the applicable Documentation. We shall use commercially reasonable efforts to correct any substantial non-conformance, if such non-conformance cannot be corrected after using commercially reasonable efforts, You may terminate the non-conforming services and receive a refund of any applicable amounts paid since the time of the non-conformance. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION WE MAKE NO WARRANTY OF ANY KIND WITH RESPECT TO THE AXCIENT SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, REASONABLE CARE, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR NON-INFRINGEMENT.

8. MUTUAL INDEMNIFICATION.

8.1. Indemnification by Us. Subject to the terms of this Agreement, We shall defend, indemnify and hold You harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred due to any claim, demand, suit or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Axcient Service in accordance with this Agreement infringes the third party’s intellectual property rights; provided that You (a) promptly give Us written notice of the Claim, (b) give Us sole control of the defense and settlement, provided We may not settle any Claim unless such settlement unconditionally releases You of all liability, and (c) give Us all reasonable assistance, at Our cost. Notwithstanding the foregoing, We shall have no liability or indemnity obligation for any claim of infringement based on (i) the use of a superseded or altered release of the Axcient Service if the infringement would have been avoided by the use of a current unaltered release of the Axcient Service or (ii) use of the Axcient Service than in accordance with the Documentation and this Agreement.

8.2. Indemnification by You. Subject to the terms of this Agreement, You shall defend, indemnify and hold Us harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred due to any claim, demand, suit or proceeding (“Claim”) made or brought against Us by a third party alleging that Your Data or Your use of a the Axcient Service in violation of this Agreement infringes the third party’s intellectual property rights; provided that We (a) promptly give You written notice of the Claim, (b) give You sole control of the defense and settlement, provided You may not settle any Claim unless such settlement unconditionally releases Us of all liability, and (c) give You all reasonable assistance, at Your cost.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

9. LIMITATION OF LIABILITY AND DAMAGES.

9.1. Limitation of Liability. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HEREUNDER WHETHER AN ACTION IS IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.2. Exclusion of Consequential Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE AXCIENT SERVICES, HOWEVER CAUSED AND WHETHER AN ACTION IS IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY. EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. TERM AND TERMINATION.

10.1. Term of Agreement. The term of this Agreement shall commence on the Effective Date and continue until all Subscription Terms have expired or have been terminated.

10.2. Term of Subscription and Renewal. Subscription Terms shall automatically renew at the end of the Subscription Term for a period equal to the expiring Subscription Term or one (1) year, whichever is shorter, unless either party provides written notice of non-renewal thirty (30) days prior to the end of the relevant Subscription Term. The price for any renewal term will not increase by more than ten percent (10%) from the price for the immediately prior Subscription Term or renewal term. The price increase may be greater than designated above if the pricing in the prior Subscription Term was designated as “promotional” or “one-time”.

10.3. Termination. Either party may terminate this Agreement for cause (a) upon thirty (30) days written notice to the other party of a material breach (other than a failure to pay) if such breach remains uncured at the expiration of such period, (b) upon the other party’s filing a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding, or (c) as otherwise provided herein. We may terminate this Agreement for cause upon five (5) days’ notice of Your breach of your payment obligations under Section 4 (Fees and Payments) of this Agreement.

10.4. Effects of Termination. Upon any termination or expiration of this Agreement as provided in this Section the rights and licenses granted hereunder shall automatically terminate and the Axcient Services may become non-operational. You shall pay any amounts due to Us within five (5) business days of any termination of expiration and promptly return and/or certify destruction, at Our option, all copies of the Documentation. We shall promptly remove and delete all of Your Data including any data maintained in a Data Center and You shall be responsible for retrieving and/or making any necessary copies or additional backups of Your Data prior to termination or expiration of the Subscription Term. If this Agreement is terminated by You for Our uncured material breach in accordance with Section 10.3 (Termination), We will refund You any prepaid fees covering the remainder of Your Subscription Term after termination. If this Agreement is terminated by Us based on Your uncured material breach in accordance with Section 10.3 (Termination), You will pay Us any unpaid fees covering the remainder of the Subscription Term. Termination of this Agreement shall not relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination or limit the parties from pursuing any legal or equitable remedies available to it.

11. MISCELLANEOUS PROVISIONS.

11.1. Entire Agreement, Amendment, and Waiver. This Agreement including all exhibits, addenda, and Order Forms is the complete and entire agreement between the parties regarding the subject matter herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter. Any modification, amendment, or waiver of any provision of this Agreement will only be effective if in writing and signed by an authorized representative of the party against whom the modification, amendment, or waiver is to be enforced. In the event of any conflict or inconsistency between this Agreement’s provisions and the provisions of an exhibit, addendum, or Order Form, the terms of such exhibit, addendum, or Order Form shall prevail. Notwithstanding any language to the contrary therein, any additional terms or conditions in any other document shall not become a part of this Agreement and shall be void. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce any subsequent breach or right.

11.2. Severability. If any provision or portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable the remaining provisions of this Agreement will remain in full force and effect.

11.3. Relationship of the Parties and Third Party Beneficiaries. The parties are entering into this Agreement as independent contractors, and no branch, agency, association, joint venture, partnership, employer-employee or franchiser-franchisee relationship is created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties hereto and is not intended to benefit any third party. Accordingly, only the parties to this Agreement may enforce this Agreement.

11.4. Assignment. Without the written consent of the other party, not to be unreasonably withheld, neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise. However, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets unless the assignee is a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

11.5. Federal Government End Use Provisions. If You are a branch or agency of the United States Government, the following provision shall apply. Government technical data and software rights related to the Axcient Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement.

11.6. Force Majeure. Subject to the further provisions of this Section, any delays or failures, except for Your payment obligations under Section 4 (Fees and Payments), by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party (“Force Majeure Event”). The period of excused performance due to a Force Majeure Event shall be only the actual period during which such Force Majeure Event continues. Accordingly, neither party hereto shall have the right to terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.

11.7. Notice. All notices required hereunder shall be in writing and shall be deemed to have been given upon (a) personal delivery, (b) three (3) business day after mailing as certified mail with postage paid, (c) the following business day after sending by confirmed facsimile, or (d) the same business day after sending by email. Notice via email shall not be sufficient for termination or an indemnifiable Claim. Notices from You shall be delivered or mailed to Axcient, 707 17th Street Suite 3900, Denver, CO 80202 and notices from Us shall be delivered or mailed to You at the address given above.

11.8. Customs and Export Compliance. The Axcient Service, as well as other technology We make available, and any derivatives thereof may be subject to the customs, export laws and regulations of the United States and other jurisdictions where they are manufactured or received. You shall comply fully with all relevant export laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Axcient Service in a U.S. embargoed country or in violation of any U.S. export law or regulation.

11.9. Name and Logo. Either party may include the other’s name and logo in customer or vendor lists including those customer or vendor lists used in press releases.

11.10. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California excluding its conflict of law rules and shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The exclusive jurisdiction and venue of any action with respect to this Agreement shall be the federal or state courts located in Santa Clara County and the parties hereby consent to personal jurisdiction and venue therein.

11.11. Survival. The rights and obligations of the parties under Sections 4 (Fees and Payments), 5 (Intellectual Property Rights), 6 (Confidentiality), 7 (Representations, Warranties, and Disclaimers), 8 (Mutual Indemnification), 9 (Limitation of Liability and Damages), 10 (Term and Termination), 11 (Miscellaneous) shall survive any termination or expiration of this Agreement.

11.12. Terms. We will provide notice to You of any changes to this Agreement by posting it online at the location set forth in the Order Form or by other reasonable means. You agree to review this Agreement periodically for changes. Your continued use of the Axcient Services after such notice constitutes Your binding acceptance of Our amended Agreement. If any such revision is unacceptable to You, Your only remedy is to terminate Your use of the Axcient Services. For any material changes to this Agreement, such amended terms will automatically be effective thirty (30) days after they are initially posted by Us.

DATA PRIVACY & DATA SECURITY ADDENDUM