MASTER SUBSCRIPTION SERVICES AGREEMENT
TERMS AND CONDITIONS
THIS MASTER SUBSCRIPTION SERVICES AGREEMENT sets out the terms and conditions governing the contract between Axiom EPM (UK) Ltd, incorporated and registered in England and Wales with company number 6800902 whose registered office is at 29 Gildredge Road, Eastbourne, East Sussex BN21 4RU (“Axiom”) and a Licensee (as defined below) for the Licensee’s access to and use of the Services (as defined below).
This Agreement is effective from the date that the Licensee executes an Order Form (the “Effective Date”).
In this Agreement, the following definitions apply:
“Agreement” means this Master Software Licence Agreement, together with all Order Forms and all amendments and addendums made in accordance with the terms hereof.
“Annual Renewal Fee” means the fees payable by Licensee for the renewal of both the applicable Software Subscription and Support Services for a Renewal Subscription Period. The applicable Annual Renewal Fee is based off the prior licence period’s fees for Software Subscription and Support Services, subject to a nominal, annual increase.
“Authorised Entities” means the Affiliates listed in an applicable Order Form authorised to access and use the Software for Licensee’s internal business purposes. “Affiliate,” for purposes of this definition, means any corporation or entity, the existence of which is recognized by a U.S. governmental authority, in which Licensee has a direct controlling ownership interest of at least 51%. “Control” for purposes of this definition, means direct possession of the power to direct or cause the direction of the management and policies of such entity. If no entities/locations are listed, Authorised Entity shall be limited to Licensee.
“Axiom Materials” means and shall include, without limitation, any and all products, data, plans, processes, specifications, reports, designs, technological “know how”, methodologies, documentation and other information or materials which Axiom, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires or obtains knowledge of at any time before, after or during the term of this Agreement without breach of Axiom’s duty of confidentiality to Licensee.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Documentation” means the technical materials, including user guides, documentation, and help and training materials, as updated from time to time, provided by Axiom to Licensee in hard copy or electronic form, describing the use and operation of the Software.
“Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
“Hosting Fee” means the fees (price) listed on the applicable Order Form that are payable by Licensee to entitle Licensee to access to and use of the Hosting Services.
“Host Server” means the server provided by Axiom or its agent through which Licensee accesses the Hosting System.
“Hosting Services” means the Hosting System services consisting of electronic access to the Software and Host Server to store Licensee data and make Host Server available on demand by Licensee via remote access using an internet connection as more specifically identified herein.
“Hosting System” means the computer software in object code form owned or provided by Axiom for which Licensee has licence rights granted pursuant to this Agreement, updates and upgrades to the Hosting System, and related online documentation.
“Instance” means a use of the Software on one operating system file directory created for the purposes of supporting the application module(s) included in the Software. An Instance shall be provided by Axiom to a single operating entity or business unit of Licensee that uses the same general ledger or accounting system, and centrally budgets for its operations. Axiom shall have the right in its sole discretion to determine whether Licensee uses the Software in more than one Instance, which may require additional fees.
“Intellectual Property Rights” means all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications and disclosures, moral rights, rights in databases, contract rights, and other proprietary rights.
“Licensee” an entity to whom Axiom has agreed to provide the Services and who has executed at least one Order Form.
“Licensee Data” means all information entered into the Hosting System by Licensee in the course of its authorised use of the Hosting System and stored on the Host Server for access by the Hosting System and retrieval by Licensee.
“Licensor” has the meaning set out in clause 3.5.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Master Agreement” means the Master Subscription Services Agreement between the Parties.
“Number of Users” means the total number of Users set forth on the applicable Order Form that are permitted to access and use the Software and Hosting System.
“Order Form” means an ordering document specifying the Software to be provided hereunder that is entered into between Licensee and Axiom.
“Pass-Through Terms” has the meaning set out in clause 3.5.
“Professional Services” means implementation, training and consulting services related to the Software
“Renewal” means the definition assigned to it in Section 7.1.2 (Term of Subscriptions).
“Reproducible Failure” means any failure reported by Licensee that Axiom is able to reproduce using commercially reasonable efforts.
“Services” means, collectively, the services associated with the Software that are ordered by Licensee under an Order Form, including Support Services and Hosting Services.
“Software” means all or any part of the software program or programs licensed by Licensee, described in the applicable Order Form, including all Documentation, in Executable Code form.
“Subscription” means the definition set forth in Section 3.1 (Subscriptions).
“Subscription Fee” means the fee payable for Licensee for the applicable Subscription.
“Subscription Period” means the period between an Order Form’s effective date and the date the Order Form expires or is terminated pursuant to this Agreement.
“Support Fee” means the portion of fees payable by Licensee to entitle Licensee to Support Services during the initial Licence Period.
“Support Services” means the maintenance and support services as described in Section 5.1 (Maintenance and Support Services).
“Taxes” means all duties, sales, use, excise, value added and other taxes (including interest and penalties imposed thereon) assessed by any government or governmental unit or agency having taxing authority over Axiom or Licensee relating to this Agreement, other than taxes imposed on or measured by Axiom’s net income.
“Territory” means the geographical locations from which the Services and Software may be accessed and used, set forth in the applicable Order Form.
“User” means an employee of Licensees who is authorised by Licensee to use a Software and to whom Licensee has supplied a User ID and password. Licensee shall inform all Users of the restrictions and obligations contained in this Agreement, and Users shall be bound by confidentiality obligations at least as restrictive as those contained in this Agreement.
“User ID” means the unique identification used to access the Software issued to each User.
2. ORDER FORMS
2.1 This Master Agreement sets forth the terms and conditions whereby Axiom agrees to provide Licensee with Software, Hosting Services and Professional Services set forth in one or more Order Forms that are separately executed by authorised representatives of both Parties, which are incorporated herein by this reference.
2.2 In the event of any conflict between this Master Agreement and an Order Form, the Order Form shall control with respect to the Software and Hosting Services set forth in such Order Form and solely to the extent of the conflict, except this Master Agreement shall govern all terms relating to intellectual property rights, confidential information, warranty, indemnity, and liability.
2.3 The Parties are entering into an initial Order Form upon execution of this Agreement. Unless otherwise provided in the applicable Order Form, (a) additional software may be licensed during a Subscription Period, prorated for the portion of that Subscription Period remaining at the time the new software is added, and (b) the Subscription Period for any added software will terminate on the same date as the underlying software. Unless designated as replacing a specific Order Form, subsequent Order Forms will be considered to be additive to currently effective Order Forms.
3.1 Subscriptions. Licensee will receive access to the Software upon entering into a written Order Form and Licensee’s payment of the applicable Subscription Fee (“Subscription”). Upon execution by both Parties, each Order Form will be incorporated into this Agreement. Each Order Form will specify the Software and any specific terms applicable to that order. In the event of any conflict between this Subscription Services Agreement and an Order Form, the Order Form shall control with respect to the Software set forth in such Order Form and solely to the extent of the conflict, except this Subscription Services Agreement shall govern all terms relating to intellectual property rights, confidential information, warranty, indemnity, and liability. The Parties are entering into an initial Order Form upon execution of this Agreement. Unless otherwise provided in the applicable Order Form, (a) Software is purchased as subscriptions, (b) subscriptions may be added during a Subscription Period, prorated for the portion of that Subscription Period remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Unless designated as replacing a specific Order Form, subsequent Order Forms will be considered to be additive to currently effective Order Forms.
3.2 Licensee’s Responsibilities. Licensee will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Licensee’s Data and the means by which Licensee acquired its Data, (c) use best efforts to prevent unauthorised access to or use of the Services, and notify Axiom promptly of any such unauthorised access or use, and (d) use the Software only for Licensee’s internal business purposes in accordance with this Agreement, the Documentation and applicable laws.
3.3 Restrictions on Use. Licensee agrees that it shall not and will not permit any User or other party to: (a) make the Software or Hosting System available to, or use the Software or Hosting System for the benefit of, anyone other than Licensee’s internal business purposes; (b) sell, resell, licence, sublicense, distribute, loan, rent, lease or otherwise transfer the Software or Hosting System, or include the Software or Hosting System in a service bureau or outsourcing offering; (c) modify, adapt, alter, translate or create derivative works of the Software or Hosting System; (d) permit direct or indirect access to or use of the Software or Hosting System in a way that circumvents a contractual usage limit; (e) rely on the Software or Hosting Services in order to build a competitive product or service; (f) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of the Software; (g) merge the Software with other software; or (h) use or copy the Software except as expressly allowed hereunder. All rights in and to the Software and Services not expressly granted to Licensee are reserved by Axiom.
3.4 Authorised Entities and Users. Any Instance of the Software permitted under this Agreement shall be accessed and used only by the Authorised Entity(ies) and Users through the User IDs, and only by the aggregate Number of Users designated in the applicable Order Form. Upon departure of any User, Licensee may reassign access to the Software to a newly designated User. In no event shall the aggregate number of all Users exceed the Number of Users designated in the applicable Order Form(s). Any request by Licensee to add an Authorised Entity(ies) or for an increase in the Number of Users must be approved by Axiom, evidenced by execution of an additional Order Form, and subject to the payment by Licensee of additional Subscription Fees. If Licensee exceeds a contractual usage limit, Licensee shall promptly execute an Order Form for additional Authorised Entity(ies) or Number of Users, and/or pay any invoice for excess usage at Axiom then current rates in accordance with Section 6 (Fees and Payment). Authorised Entities and Users are bound by the same obligations as Licensee under the Agreement. Licensee is responsible and shall be liable for all use of the Software and Services derived from this Agreement.
3.5 Pass-through terms. The original licensor of the Software (“Licensor”) may require the Licensee to comply with certain terms and conditions, a copy of which will be provided to the Licensee (the “Pass-Through Terms”). The Licensee shall comply fully with the Pass-Through Terms (if any). As between Axiom and the Licensor, Axiom accepts all obligations and liabilities of the Licensor under the Pass-Through Terms. If the Pass-through Terms conflict with the terms of this Agreement then the Pass-Through Terms shall apply, save that :
3.5.1 all terms in this Agreement relating to fees, charges and payment shall apply to the exclusion of any similar terms in the Pass-Through Terms;
3.5.2 the length or term of this Agreement and any Subscription or Subscription Period shall be governed by this Agreement, to the exclusion of any similar terms in the Pass-Through Terms;
3.5.3 any reference to professional or consultancy services in the Pass-Through Terms refers to professional or consultancy services to be provided by the Licensor, not to any professional or consultancy services provided by Axiom.
The Licensor shall retain the right to pursue claims directly against the Licensee for any breach by the Licensee of the Pass-Through Terms.
4. HOSTING SERVICES
4.1 Delivery. Axiom will procure the hosting of the Software and make it available to Licensee on a Hosting System provided by the original licensor of the Software or its agents under the terms of an agreement between Axiom and such supplier (but for the avoidance of doubt as between Axiom and the Licensee all obligation and liability for such hosting shall rest with Axiom under the terms of this Agreement). Licensee acknowledges that no physical copy of the Software or its source code will be provided to Licensee.
4.2 Hosting System. Axiom will provide Licensee with access to the online Hosting System and will provide for the storage and retrieval of Licensee Data in connection with use of the Hosting System. Licensee is responsible for obtaining access to the Internet using software and hardware that meet Axiom minimum requirements.
4.3 Access. Licensee is responsible for the confidentiality and use of account names and passwords. Any communication, data transfer, or use of the Hosting System received under Licensee account names and passwords are deemed to be for Licensee’s benefit and use. Licensee agrees to notify Axiom if account names or passwords are lost, stolen, or being used in an unauthorised manner. Licensee represents and warrants that it has the rights to all Licensee Data, including the right to upload Licensee Data to the Host Server in connection with its authorised use of the Hosting System. Licensee agrees that the Licensee Data and its use do not infringe the rights of any third party and agrees to indemnify and hold Axiom harmless from any third-party claims of infringement under the same terms and conditions as set forth below in Section 11.2 (Indemnification by Licensee).
4.4 Alterations, Fixes, and Improvements. Axiom may alter the Software from time-to-time as ongoing fixes and improvements are made. The screen view may therefore change.
4.5 Data Security. Licensee agrees to access the Hosting System and to store and retrieve data using third party programs, including Internet “browser” and/or other remote connectivity programs that support data security protocols compatible with those specified by Axiom. Axiom agrees to back-up and maintain the security of Licensee Data using industry-standard back-up tools and data security protocols, and other methods reasonably deemed to be adequate for secure business data and to notify Licensee in the event of a breach of security involving Licensee Data.
4.6.1 Licensee agrees to fully comply with all applicable international, federal, state, and local privacy laws in connections with the use of the Hosting System.
4.6.2 Licensee shall (a) be responsible for compliance with this Agreement by Authorised Entity(ies) and Users, (b) be responsible for the accuracy, quality and legality of Licensee Data and the means by which Licensee acquired Licensee Data, (c) use best efforts to prevent unauthorised access to or use of the Software or Hosting System, and notify Axiom promptly of any such unauthorised access or use, (d) use the Software, Hosting Services and Hosting System only for Licensee’s internal business purposes in accordance with this Agreement, the Documentation and applicable laws, and (e) properly maintain all associated equipment, software and environmental conditions in accordance with applicable industry standards.
4.6.3 Licensee agrees it will not use the Hosting System to (a) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (b) use the Hosting System to store or transmit Malicious Code; (c) interfere with or disrupt the integrity or performance of the Hosting System or third-party data contained therein; or (d) copy the Hosting System or any part, feature, function or user interface thereof.
4.7 Verification. Axiom has the right to electronically inspect, audit, and keep record of Licensee’s use of the Hosting System at any time as reasonably necessary to ascertain compliance with the terms of this Agreement. If such inspection or audit indicates Licensee is not in compliance with this Agreement, or if fraudulent activity is suspected, Axiom reserves the right to take such action as Axiom deems necessary, including, but not limited to, suspension or termination of the Hosting Services or this Agreement.
5. SUPPORT SERVICES
5.1 Maintenance and Support Services. For the term of this Agreement Axiom will provide the following maintenance and support services (“Support Services”):
5.1.1 Corrections, Updates & Improvements. Licensee will receive access to any corrections, updates and improvements to the Software that are officially released and any Documentation related to the Software published by Axiom. For the avoidance of doubt, corrections, updates, and improvements shall not include any new functionality in the Software, which is subject to additional fees.
5.1.2 Error Correction. Axiom will use commercially reasonable efforts to correct any Critical Error. “Critical Error” means a reported Reproducible Failure of the Software to substantially conform to the applicable Documentation that prevents Licensee from using the Software for the Software’s intended purpose where no reasonable workaround is available. Axiom will use commercially reasonable efforts to correct any Reproducible Failure of the Software to substantially conform to the applicable Documentation that is not a Critical Error in the subsequent version or release of the Service; provided that Axiom may not provide a correction for all such nonconformities. Onsite support will be provided only upon mutual agreement of the Parties and may be subject to additional fees. Any non-support work shall be professional services, subject to Axiom standard rate in effect at that time.
5.1.3 Phone Support. Licensee will receive reasonable telephone support, for the production environment only, during standard UK business hours, Monday through Friday, except for holidays. In order to receive such services, Licensee must provide the name under which the Licence is issued and Licence number at the time the call is made.
5.2 Professional Services. The Licensee may from time to time request Axiom to supply Professional Services related to the Software. The Licensee acknowledges that the provision of such Professional Services is at the reasonable discretion of Axiom and shall in part depend on the availability of appropriate resources at the time in question.
5.2.1 Where Axiom agrees to provide Professional Services, such agreement shall be embodied in a Statement of Work substantially in the form set out the appropriate Order Form which shall set out the Fees payable in respect of such service provision.
5.2.2 Professional Services will be provided at Axiom’s then current Professional Services rates, plus reasonable travel and subsistence costs. Axiom’s Professional Services rates are subject to change without prior notice.
5.2.3 The Licensee acknowledges and agrees that any rescheduling by the Licensee of any Professional Services may cause Axiom to incur additional costs or fees and that the Licensee will be responsible for any such additional costs or fees incurred.
5.2.4 Axiom shall use its reasonable endeavours to ensure that, while on the Licensee’s premises, all its employees who enter such premises for the purpose of, or in connection with, this Agreement adhere to the Licensee’s security procedures and health and safety regulations, as from time to time notified to Axiom. The Licensee may remove or refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, Axiom shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with the terms of this clause.
6. FEES AND PAYMENT
6.1 Fees. Licensee shall pay all applicable fees in accordance with the applicable Order Form(s). Except as otherwise specified herein or in an Order Form (i) Subscription Fee are based on Software purchased and not actual usage, and (ii) quantities purchased cannot be decreased during the relevant Subscription Period. Any changes to Subscription Services and the related Subscription Fee will be mutually agreed upon and executed through an additional Order Form. Licensee agrees that the Hosting Fee specified in an Order Form contemplates certain data storage and resource usage estimates, based on Axiom’s understanding of Licensee’s needs at the time the Order Form is signed. Axiom reserves the right to increase the Hosting Fee if during a Licence Period Licensee desires to improve system performance. Any changes to Hosting Services and related Hosting Fees will be mutually agreed upon and executed through an additional Order Form.
6.2 Hosting. Licensee agrees that the Hosting Fee specified in an Order Form contemplates certain data storage and resource usage estimates, based on Axiom’s understanding of Licensee’s needs at the time the Order Form is signed. Axiom reserves the right to increase the Hosting Fee if during a Licence Period Licensee desires to improve system performance. Any changes to Hosting Services and related Hosting Fees will be mutually agreed upon and executed through an additional Order Form.
6.3 Expenses. Licensee agrees that it will reimburse Axiom for reasonable costs and expenses incurred by Axiom under this Agreement, including travel costs and expenses when travel to Licensee’s location is required.
6.4 Invoicing. Axiom will issue invoices in advance, either annually or in accordance with any different billing frequency stated in an applicable Order Form. Licensee is responsible for providing and maintaining current complete and accurate billing and contact information.
6.5 Payment Terms. All amounts due under this Agreement are due and payable upon receipt of invoice, in Pounds Sterling. Except as expressly allowed under Section 6.6 (Taxes), under no circumstances shall any amount due to Axiom under this Agreement be reduced, whether by set-off, counterclaim, adjustment or otherwise, by virtue of any claim of Licensee or a third party. Axiom reserves the right to suspend the Licence and Services until all past due amounts are paid in full, subject to Section 7.2.1 (Termination by Axiom). Past due invoiced amounts are subject to a monthly interest fee of the lesser of either five percent (5%) or the maximum rate allowable by law. Interest charges will not accrue to the extent Licensee is disputing such charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Licensee must notify Axiom of any billing discrepancies within thirty (30) days from the date of the applicable invoice.
6.6 Taxes. All fees are exclusive of Taxes. Licensee is responsible for, and will indemnify and hold Axiom harmless from, all applicable Taxes. If Licensee claims it is exempt from payment of applicable Taxes, Licensee must provide Axiom with a copy of Licensee’s tax exemption certificate at the time the Order Form is signed.
7. TERM AND TERMINATION
7.1.1 Agreement. This Master Agreement shall commence upon the Effective Date and continue until all Subscriptions hereunder have expired or have been terminated (“Term”), unless earlier terminated in accordance with the provisions of Section 7.2 (Termination). Expiration or termination of one Order Form shall not affect any other Order Form, unless the Agreement as a whole is terminated under Section 7.2.
7.1.2 Term of Subscriptions. The term of each Subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Subscriptions will automatically renew for additional periods equal to the expiring Subscription Period or one year whichever is shorter (except if the expiring Subscription is shorter than one year, the Subscription shall automatically renew for a period of at least one year), unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the then current Subscription Period. The Subscription Fee is subject to a nominal increase upon each automatic renewal.
7.2.1 By Axiom. Axiom may terminate this Agreement as follows: (i) effective immediately upon written notice to Licensee, if Licensee breaches any provision of Sections 3 (Software), 4.6 (Compliance), 8 (Proprietary Rights) and 9 (Confidentiality); (ii) effective immediately upon written notice to Licensee, if Licenses breaches any other provision of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof; (iii) effective immediately upon Licensee’s failure to pay the Annual Renewal Fee prior to the expiration of the then current Subscription Period; or (iv) effective immediately, if Licensee has a receiver appointed, or resolves to enter into or is the subject of any judicial management or liquidation or reorganisation proceedings, or attempts to make an assignment for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due.
7.2.2 By Licensee. Licensee shall be deemed to have terminated this Agreement if Licensee fails to pay the Annual Subscription Renewal Fee on or before the expiration of the then current Licence Period, with such termination to be effective as of the last day of the then current Subscription Period, unless otherwise agreed to by the Parties.
7.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Axiom under this Agreement before or as of such termination or expiration shall be immediately due and payable, all licence rights granted and obligations to perform services under this Agreement shall immediately cease to exist, and Licensee must (a) promptly discontinue all use of the Hosting System and Software, (b) erase all copies of the Software from Licensee’s computers and systems, and (c) return to Axiom or destroy all copies of the Software on tangible media in Licensee’s possession or control. Each Party shall return or destroy all Confidential Information of the other Party and shall certify to the other in a writing signed by an authorised representative that it has fully complied with the requirements of this Section 7.3. To the extent any Confidential Information may still reside on a Party’s backup tapes, the Party shall limit further use of such Confidential Information only to those purposes that make the destruction or return of the Confidential Information infeasible. Notwithstanding the foregoing, recipient Party may retain the Confidential Information in accordance with any pre-existing document retention policy for archival purposes only. Upon Licensee’s request made within 30 days from the effective date of termination or expiration of this Agreement, Axiom will make Licensee Data available to Licensee for export or download. After that 30-day period, Axiom will have no obligation to maintain or provide Licensee Data.
7.4 Surviving Provisions. Sections 6 (Fees and Payment), 7.3 (Effects of Termination), 8 (Proprietary Rights), 9 (Confidentiality), 10.5 (Disclaimer), 11 (Indemnification), 13 (Limitations of Liability), 14.2 (Choice of Law), 14.5 (Third-Party Beneficiaries), 14.6 (Severability) and 14.11 (Construction) shall survive any termination or expiration if this Agreement and shall continue to be binding upon the parties.
8. PROPRIETARY RIGHTS
8.1 Software. The Software (including Source Code and Executable Code formats), Services, and any inventions or other work product created in the performance of this Agreement, and all Intellectual Property Rights therein, are the exclusive property of Axiom and its suppliers.
8.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Axiom and Axiom suppliers reserve all of their respective rights, title and interests in and to the Software, and all other material provided to Licensee hereunder, including all related Intellectual Property Rights. No rights are granted to Licensee hereunder other than as expressly set forth herein. All uses of the Software, Services or any such materials accrue solely to the benefit of Axiom. Licensee shall not remove, alter, or obscure any Intellectual Property Rights notices of Axiom or its suppliers on the Software, Hosting System or Axiom Materials. Licensee shall not use any trademark, service mark or trade name of Axiom’s or of any Axiom affiliated companies.
8.3 Licensee Data. Licensee shall retain ownership of all Licensee Data stored or retrieved in connection with use of the Hosting System. Licensee grants Axiom and Axiom affiliates a worldwide, limited-term licence to host, copy, transmit and display Licensee Data as necessary for Axiom to provide the Hosting Services in accordance with this Agreement. Subject to this limited licence, Axiom acquires no right, title or interest from Licensee under this Agreement in or to Licensee Data. Notwithstanding anything to the contrary in this Agreement, Axiom may use Licensee Data in connection with the preparation and use of abstracts, compilations, statistical analyses or other similar uses that do not (i) identify Licensee, or (ii) disclose Licensee confidential information.
8.4 Loss of Licensee Data. In the event of any loss or damage to Licensee Data, the Licensee’s sole and exclusive remedy against Axiom shall be for Axiom to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest back-up of such Licensee Data maintained by Axiom (if any). Axiom shall not be responsible for any loss, destruction, alteration or disclosure of Licensee Data caused by any third party (except those third parties sub-contracted by Axiom to perform any part of the Hosting Services for which it shall remain fully liable under section 12.6).
8.5 Submissions. Licensee acknowledges and agrees that any questions, comments, suggestions, enhancement request, recommendation, correction, ideas, feedback or other information relating to this Agreement, the Software, or the Services (“Submissions”), provided by Licensee to Axiom are non-confidential and shall become Axiom sole property. Axiom shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Licensee.
9.1 Confidential Information. Each party (the “Discloser”) may from time to time during the term of this Agreement disclose to the other party (the “Recipient”) certain information regarding the Discloser’s business, including financial, employee, strategic planning, and other confidential or proprietary information (“Confidential Information”). Confidential Information shall be designated as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure. Notwithstanding the foregoing, Licensee Confidential Information includes Licensee Data, and Confidential Information of Axiom includes: (a) the Software, Source Code and all methodologies, routines, algorithms and processes underlying or relating to the Software, (b) the terms (such as pricing, discounts, payment terms, indemnification or warranty terms) but not the existence of this Agreement, and (c) the results of any benchmarking or similar testing related to the Software. Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party under this Agreement.
9.2 Use of Confidential Information. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Discloser in writing, to limit access to Confidential Information of Discloser to those of its employees who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations to Recipient at least as stringent than those contained herein. Additionally, before Licensee permits any consultant or third-party contractor (“Contractor”) to access or Use the Software or Hosting Services, each Consultant must execute a confidentiality agreement with Axiom in form and substance reasonably satisfactory to Axiom.
9.3 Exceptions. Confidential Information does not include any information that: (a) is received from a legitimate third party without breach of any obligation owed to the Discloser; (b) is, was, or through no fault of the Recipient has become, generally available to the public via legitimate sources; or (c) was independently developed by the Recipient without reliance on or use of the Confidential Information. In addition, the Recipient may disclose Confidential Information of the Discloser to the extent necessary for the Recipient to enforce its rights under this Agreement or required by law or by order of a court or similar judicial or administrative body; provided the Recipient promptly notifies the Discloser in writing (to the extent not otherwise prohibited by law) of such required disclosure and cooperates with the Discloser in any lawful action to contest or limit the scope of such required disclosure.
10. REPRESENTATIONS, WARRANTIES
10.1 Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
10.2 Warranty. Axiom warrants that as long as Licensee is eligible for Support Services and Licensee is not in default of any material provision of this Agreement, the Software will perform substantially in accordance with the Documentation. Axiom warrants that to the best of its knowledge, at the time of delivery the Software will be free of any computer viruses, time bombs or other malicious hidden routines which could intentionally cause damage to or corrupt data, storage media or equipment.
10.3 Exceptions. Notwithstanding the above warranties, Axiom is not responsible for, and has no obligation to repair, any problems with the Software caused by:
(a) Improper use, neglect or misuse of the Software or Hosting System,
(b) Any fault of Licensee’s agents or employees,
(c) Any attempts at repairs, maintenance, or modifications to the Software or Hosting System performed by other than authorised personnel of Axiom,
(d) Failure or interruption of any electrical power, communication line or like cause,
(e) A nonconformity resulting from any of Licensee or third party services, software, hardware or other equipment that affect the performance of the or Hosting System, including failed internet connections, or
(f) Any other cause external to the Software or Hosting System except ordinary use.
10.4 Remedy for Breach of Warranty. In the event of a breach of Section 10.2 (Warranty), Axiom will at its election either replace the Software or correct any Critical Error such that the Software conforms to the warranty in Section 10.2. If the foregoing remedies are not, in Axiom’s sole judgment, commercially feasible, Axiom will promptly refund the Subscription Fee or Annual Renewal Fee actually paid to Axiom by Licensee for the nonconforming Software in the 12 months immediately preceding the warranty breach. Upon such refund, this Agreement may be terminated by Axiom in accordance with Section 7.2.1 (Termination by Axiom). Axiom warrants Software replaced under this warranty only while Licensee is eligible for Support Services. Licensee agrees that the remedies provided under this Section 10.4 shall be Axiom’s sole liability and Licensee’s exclusive remedy with respect to a breach of Section 10.2.
10.5 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 10.2 (Warranty) AND 10.5 THE SOFTWARE, HOSTING SYSTEM, HOSTING SERVICES, AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY AXIOM IN RELATION TO THIS AGREEMENT ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, QUALITY, OR INTEGRATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXIOM DOES NOT WARRANT THAT THE SOFTWARE OR HOSTING SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.6 The Hosting Services may be subject to limitations, delays, and other problems inherent in the use of the internet, remote connectivity, and electronic communications. Axiom is not responsible for any delays, delivery failures, or other damage resulting from such problems.
11.1 Indemnification by Axiom. Axiom shall defend Licensee against any claim, demand, suit or proceeding made or brought against Licensee by a third party alleging that the use of the Software in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify Licensee from any damages, reasonable attorneys’ fees and costs finally awarded against Licensee as a result of, or for amounts paid by Licensee under a court-approved settlement of, a Claim Against Licensee, provided Licensee (a) promptly gives Axiom written notice of the Claim Against Licensee, (b) gives Axiom sole control of the defense and settlement of the Claim Against Licensee (except that Axiom may not settle any Claim Against Licensee unless it unconditionally releases Licensee of all liability), and (c) provides to Axiom reasonable assistance in defense of the claim, at Axiom’s expense.
If Axiom reasonably determines that the Software may infringe the patent, copyright or trade secret of a third party, Axiom may, in Axiom’s sole discretion and at no cost to Licensee, (i) modify the Software to make it functionally equivalent and non-infringing; (ii) procure for Licensee the right to use the Software in accordance with this Agreement; or (iii) replace the Software with other non-infringing functionally equivalent product(s). If Axiom reasonably determines that none of the foregoing alternatives are available on commercially reasonable terms, Axiom may terminate this Agreement and the Licence granted hereunder for the infringing Software. In such event, Axiom will refund to Licensee a pro-rata portion of the Subscription Fee or Annual Renewal Fee paid by Licensee to Axiom during the twelve (12) months immediately preceding such termination, based upon the number of full and partial months elapsed prior to the date upon which the Licence is terminated. The above defense and indemnification obligations do not apply to the extent a Claim Against Licensee arises from Licensee breach of this Agreement or Licensee’s use of the Software in combination with any software, data, or technology not supplied by Axiom (where there would be no claim, but for such combination). Axiom shall not be liable for any costs or expenses that Licensee incurs outside of Axiom’s obligations described in this Section 11.1 without Axiom’s prior written authorization.
11.2 Indemnification by Licensee. Licensee shall defend Axiom, including its affiliates and their respective officers, directors, employees, agents, and assigns (collectively, the “Axiom Indemnitees”), against any claim, demand, suit or proceeding made or brought against Axiom Indemnitees by a third party alleging that Licensee Data, or Licensee’s use of the Software in breach of this Agreement, infringes or misappropriates any intellectual property rights or violates applicable law (a “Claim Against Axiom”), and will indemnify and hold the Axiom Indemnitees harmless from any damages, attorneys’ fees and costs awarded against or incurred by Axiom Indemnitees as a result of, or for any amounts paid by Axiom Indemnitees under a court-approved settlement of a Claim Against Axiom, provided Axiom (a) gives Licensee written notice of the Claim Against Axiom as soon as practicable, (b) gives Licensee sole control of the defense and settlement of the Claim Against Axiom (except that Licensee may not settle any Claim Against Axiom unless it unconditionally releases Axiom Indemnitees of all liability), and (c) provides to Licensee all reasonable assistance, at Licensee’s expense.
11.3 Exclusive Remedy. This Section 11 (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 11.
12. DATA PROTECTION
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This section 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
12.2 The parties acknowledge that if Axiom processes any personal data on the Licensee’s behalf when performing its obligations under this agreement:
12.2.1 the Licensee is the controller and Axiom is the processor for the purposes of the Data Protection Legislation;
12.2.2 the personal data may be transferred or stored outside the UK or the country where the Licensee and the Users are located in order to carry out the Hosting Services and Axiom’s other obligations under this agreement.
12.3 Without prejudice to the generality of clause 12.1, the Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Axiom for the duration and purposes of this agreement so that Axiom may lawfully use, process and transfer the personal data in accordance with this agreement on the Licensee’s behalf.
12.4 Without prejudice to the generality of clause 12.1, Axiom shall, in relation to any personal data processed in connection with the performance by Axiom of its obligations under this agreement:
12.4.1 process that personal data only on the documented written instructions of the Licensee unless Axiom is required by the Data Protection Legislation and any other law that applies in the UK to process personal data (“Applicable Laws”). Where Axiom is relying on Applicable Laws as the basis for processing personal data, Axiom shall promptly notify the Licensee of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Axiom from so notifying the Licensee;
12.4.2 not transfer any personal data outside of the United Kingdom unless the following conditions are fulfilled:
(i) the Licensee or Axiom has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Axiom complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
(iv) Axiom complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the personal data;
(v) assist the Licensee, at the Licensee’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Licensee without undue delay on becoming aware of a personal data breach;
(vii) at the written direction of the Licensee, delete or return personal data and copies thereof to the Licensee on termination of the agreement unless required by Applicable Law to store the personal data; and
(viii) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and immediately inform the Company if, in the opinion of the VAR, an instruction infringes the Data Protection Legislation.
12.5 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
12.6 The Licensee consents to Axiom appointing Syntellis Inc as a third-party processor of personal data under this agreement. Axiom confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Licensee and Axiom, Axiom shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.
12.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when signed by both parties).
13. LIMITATIONS OF LIABILITY
LICENSEE AGREES THAT IN NO EVENT SHALL AXIOM, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS, BE LIABLE UNDER THIS AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS, LOST REVENUES, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, LOSS, CORRUPTION OR INACCURACY OF DATA, OR DELAY OR INTERRUPTION OF THE HOSTING SERVICES OR THE SOFTWARE). LICENSEE AGREES THAT THE TOTAL AGGREGATE LIABILITY OF AXIOM, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS, FOR ALL CLAIMS ASSERTED UNDER OR WITH RESPECT TO THIS AGREEMENT SHALL BE LIMITED TO THE LICENSE FEE, SUPPORT FEE, ANNUAL RENEWAL FEE, AND HOSTING FEE PAID BY LICENSEE TO AXIOM UNDER THE ORDER FORM AT ISSUE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL AXIOM’S SUPPLIERS, PARENT, AFFILIATES, OR SUBSIDIARIES INCUR ANY LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, DAMAGE, OR CLAIM, WHETHER IN CONTRACT, STATUTE, TORT, OR OTHERWISE, EVEN IF AXIOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY THE PARTIES.
14. GENERAL PROVISIONS
14.1 Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing or after sending by confirmed facsimile, or (iii) the third business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Licensee shall be addressed to the relevant billing contact designated by Licensee in an Order Form. All other notices shall be addressed to the person for each party identified in the Order Form.
14.2 Choice of Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Any claim against Axiom must be brought within twelve (12) months of the first occurrence giving rise to such claims, or such claims will be forever barred.
14.3 Assignment. Licensee may not assign this Agreement or any of Licensee’s rights or obligations hereunder, whether by operation of law or otherwise, without Axiom’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.4 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
14.5 Third-Party Beneficiaries. Save for the rights of the Licensor to enforce the Pass-Through Terms (if any) as set out in clause 3.5, the provisions of this Agreement are intended solely for the benefit of the Parties and shall create no rights or obligations enforceable by any third party, except for an affiliate of Axiom.
14.6 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.
14.7 Export Compliance. The Software and other technology Axiom make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Licensee shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
14.8 Notice of U.S. Government Restricted Rights. If Licensee is a branch or agency of the United States Government, the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (OCT 2010) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202 1 (OCT 2010) and 227.7202 3 (OCT 2010).
14.9 Right to List As A Customer. Licensee agrees that Axiom may utilize Licensee’s entity name, and logos, and a brief, general description of the Parties’ engagement in Axiom’s marketing material or in listings of customers.
14.10 Force Majeure. Axiom shall not be liable for any default or delay in the performance of its obligations due to any causes beyond its reasonable control. In such event, Axiom shall be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and Axiom continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without undue delay.
14.11 Construction. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation”.
14.12 Entire Agreement. This Agreement and the Order Form constitute the entire agreement between Licensee and Axiom regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, whether written or oral. Except as otherwise provided in this Agreement, each Party shall be responsible for all expenses incurred by it in connection with the negotiation, execution, and performance of this Agreement. Except as otherwise specified in this Master Agreement or in an Order Form payment obligations are non-cancellable and fees paid are non-refundable. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in a Licensee purchase order or in any other of Licensee order documentation (excluding Order Forms) is void. The rule of construction that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or of any amendments to this Agreement.