This License Agreement, along with any schedules or attachments (the “Agreement” or the “License”), is made effective between:
auxi Inc, a corporation registered in Delaware and with operations in Massachusetts. (the “Licensor”), and The acquirer of the Licensed Materials (the “Licensee”, “Customer”, or “You”).
In consideration of the mutual promises this Agreement contains, and other valuable and sufficient consideration, the Licensor and Licensee agree as follows:
1. GRANT OF LICENSE
1.1. Nature of Materials. The materials that are the subject of this Agreement are the auxi software, and any of the proprietary libraries (the “Components”) that are provided “as-is” with it, including but not limited to, pictures, icons, maps and templates, including transformations that the Licensee could apply to them (the “Licensed Materials”).
1.2. Grant of License. Licensor grants to Licensee a non-exclusive right and license to use the Licensed Materials, and the right to provide the Licensed Materials to Authorized Users in accordance with this Agreement’s terms and conditions. Licensor retains ownership of the Licensed Material and reserves all rights not expressly granted. The terms of this license will govern any software upgrades provided by the Licensor that replace and/or supplement the original Licensed Material, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
1.3. Ownership of Intellectual Property. Nothing in this Agreement shall be interpreted to transfer ownership of any copyright, trademarks or service marks from the Licensor or its suppliers to the Licensee or Authorized Users. Customer agrees and acknowledges that the title to all intellectual property rights in auxi, the Service, the Underlying Systems, including but not limited to all of the contents, such as text, images, audio, and the HTML used to generate the pages, is and remains the property of auxi. Except as expressly set forth in these Terms, no User acquires any rights, licenses or goodwill in any of auxi’s intellectual property rights. Customer shall not and shall ensure Customer’s Users do not:
1.3.1. Alter, enhance, or make derivative works of auxi, the Service, or any of the Underlying Systems;
1.3.2. Reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Service or any of the Underlying Systems;
1.3.3. Sell, transfer, publish, disclose, display or otherwise make available anything protected by intellectual property rights of auxi and any related products including any modifications, enhancements, derivatives, and other software and materials provided hereunder by auxi or copies thereof to others in violation of these Terms;
1.3.4. Display or use the auxi name or logo in any manner without auxi's prior written permission.
1.4. Components. The Components included in the Licensed Materials are only licensed for use in connection with the Licensed Materials. The Licensee and Authorized Users may not use those Components for any other purpose, nor link, compile or otherwise combine those Components with their own programs, modify, rent, release, lend, sublicense or otherwise redistribute those Components, in whole or in part.
1.5. Source code. The Licensee and Authorized Users may not and agree not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the Licensed Materials, including, for the sake of clarity, the auxi software or any part thereof. Any attempt to do so is a violation of the rights of the Licensor.
2. TERM, FEES AND RENEWAL
2.1. Agreement Term. The Agreement shall be in effect from the Effective Date and for a duration of one (1) month or one (1) year, unless otherwise specified in a commercial proposal.
2.2. Trial usage. The Licensor may provide the Licensed Materials to the Licensee without any fee for a specific period, in particular, but not exclusively, for trial purposes usage. In such an event, the Agreement Term shall be at the discretion of the Licensor, and sections Fees and Payment, Money-back guarantee, Notice of Price Increases, Renewal and Refunds of this Agreement are void.
2.3. Fees and Payment. Licensee shall pay Licensor a previously agreed upon fee for the Licensed Materials. The amount of the fee will be displayed on the Licensor’s website or be the object of an official quote from the Licensor to the Licensee. Payment will be due within thirty(30) days after the Effective Date.
2.5. Notice of Price Increases. In case of price increase, Licensor shall provide Licensee with the new prices for all Licensed Materials no less than fifteen (15) days prior to the end of the current term.
2.6. Termination for Breach. If either party believes that the other has materially breached any obligations under this Agreement, such party shall notify the other party of the alleged breach in writing. The breaching party shall have thirty (30) days from the receipt of notice to use all reasonable means to cure the alleged breach. If the breach is not cured within thirty (30) days, the non-breaching party shall have the right to terminate the Agreement without further notice. In the event that the Licensor is the breaching party, the Licensee shall be entitled for a prorated refund of the fees since notification of the breach.
2.7. Renewal. This Agreement shall be automatically renewed at the end of the current term for a successive one (1) month or one (1) year term unless either party gives written notice of its intention to cancel at least ten (10) days before expiration of the current term. In the event of a price increase for a subsequent term, Licensee shall have no less than fourteen (14) days from the date of notification of the price increase to notify Licensor of Licensee’s intent to cancel or renegotiate.
3. DELIVERY AND INSTALLATION
3.1. Delivery. Licensor will make available the Licensed Materials to the Licensee through electronic means.
3.2. Installation. Licensor will use reasonable efforts to ensure that the Licensed Materials are accessible and inter-operable with Licensee’s existing systems, provided such system meets the following compatibility requirements:
a. Operating Software: Windows 7 or higher
b. Microsoft Office version 2007 or higher
4. AUTHORIZED USERS AND USES
4.1. Authorized Users or Users. The Licensor and Licensee define “Authorized Users” or “Users” as the Licensee, or the Licensee’s employees (including interns, apprentices, staff and independent contractors), regardless of their physical location, or patrons not affiliated with Licensee, who are physically present at Licensee’s site(s) (“Walk-ins”). Additionally, all auxi seats under a Licensee’s plan are considered Authorized Users or Users.
4.2. Restrictions. Licensor and Licensee agree to the following use and access restrictions on the Licensed Materials:
o Unauthorized Use. Licensee shall not knowingly or intentionally permit anyone other than Authorized Users to use the Licensed Materials.
o Modification of Licensed Materials. Licensee and Authorized Users shall not modify or copy the Licensed Materials without the Licensor’s express, prior, and written permission.
5. PERFORMANCE OBLIGATIONS
5.1. The Licensor will use reasonable efforts to ensure that its performance will meet or exceed industry standards and practices.
5.2. Additionally, the Licensor agrees to the following performance standards:
i. Availability of Licensed Materials. The Licensor will make the Licensed Materials available to the Licensee and Authorized Users within seven (7) working days of the Effective Date.
ii. Terms and Conditions applicable to Authorized Users . In the event that Licensor requires Authorized Users to agree to additional terms relating to the use of the Licensed Materials, such terms shall not materially differ from the provisions of this Agreement. In the event of any conflict between the click-through terms or online terms and conditions and this Agreement, the terms of this Agreement shall prevail. For the avoidance of doubt, Authorized Users are not a party to this Agreement.
iii. Documentation. Licensor will provide help and operational documentation for Licensee and Authorized Users in an electronic format.
iv. Support. Licensor will provide activation and installation support. License will offer reasonable levels of continuing support to assist Licensee and Authorized Users in use of the Licensed Materials. Licensor will make its personnel available by email during Licensor’s regular business hours, Monday – Friday, for feedback, problem-solving, or general questions and will respond in a timely manner.
v. Updates. Licensor will provide regular updates to the Licensed Material. Updates might be installed without Licensee’s express consent.
vi. Problems with Licensed Materials. If the Licensed Materials fail to operate in conformance with the terms of this Agreement, Licensee shall immediately notify Licensor, and Licensor shall promptly use best efforts to restore access to the Licensed Materials as soon as possible. In the event that the non-conformity materially affects the Licensee’s or Authorized Users’ use of the Licensed Materials, and Licensor fails to repair the nonconformity within fifteen (15) business days, Licensor shall reimburse Licensee for such problems prorata temporis of the total fee for the term.
vii. Transfer or Acquisition. If any portion of the Licensed Materials is transferred to or acquired from another party, Licensor shall use best efforts to ensure that Licensee does not lose access to the Licensed Materials as a result of the transfer or acquisition.
viii. Withdrawal of Licensed Materials. Licensor reserves the right to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.
6. DATA PRIVACY AGREEMENT
The provisions related to data privacy are set out in a Data Privacy Agreement separate to this License Agreement. Unless a separate Data Privacy Agreement has been signed by the parties, the Data Privacy Agreement publicly displayed on the website of the Licensor will apply.
7. DISPUTE RESOLUTION
7.1. Dispute Resolution. In the event of any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement that are not affected by the dispute.
7.2. Governing Law. This Agreement shall be interpreted and construed according to, and governed by, the laws of Delaware, without regard to its conflict of laws rules. The state courts located in Delaware shall have jurisdiction to hear any dispute under this Agreement. This provision survives expiration or termination of the Agreement.
7.3. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control, including Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, labor strikes, and/or any other cause beyond the reasonable control of the party whose performance is affected.
8. BETA SERVICES
8.1. auxi sometimes launches new or redesigned parts of the Service that need some time to be tested and improved before they are offered as the “real deal” ("Beta Service"). Most BETA Services are free, but some may be paid.
8.2. Use of the Beta Service is subject to these Terms and any additional terms that auxi may, in auxi’s sole discretion, specify from time to time.
8.3. Use of the Beta Service is only permitted for the period designated by auxi. auxi may terminate the Customer’s right to use the Beta Service at any time and for any reason in auxi’s sole discretion, without any liability to the Customer. In case of the paid Beta Services, Customers will be refunded for any unused Service pro rata.
8.4. Customer understands that any pre-release and Beta Service are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available products.
8.5. auxi makes no promises that any Beta Service will ever be made generally available.
8.6. auxi is providing any Beta Service to Customer “as is.” auxi makes no warranties of any kind with respect to Beta Service, whether express, implied, statutory or otherwise. To the maximum extent permitted by applicable law, auxi disclaims all obligations or liabilities with respect to Beta Services, including but not limited to any support and maintenance, warranty, and indemnity obligations.
8.7. The Enterprise plan allows Customers to opt out of Beta Services.
9.1. If an Authorized User provides auxi with ideas, comments or suggestions relating to the Service or the Underlying Systems (“Feedback”), all intellectual property rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by auxi.
10.1. Unless Customer requests auxi not to (via an email to email@example.com), Customer agrees to grant auxi the right to use and display Customer's name, logo and Feedback on the Website and in other marketing and promotional materials solely in connection with our respective activities under these Terms.
11. FEES AND PAYMENTS
11.1. Customer agrees to pay the applicable fee for the Customer's chosen plan as provided in auxi pricing available on auxi’s Web Site or, if a different fee is agreed between auxi and the Customer, the Customer agrees to pay the agreed fee (the "Fee").
11.2. The following ways of purchasing the Service are available:
11.2.1 Online via payment by card.
11.2.2 By contacting auxi and sending auxi all the information and contact details statutorily required for billing purposes (e.g. plan, trade name, registered office, ID No., VAT No., etc.). auxi will then send the Customer an invoice that can be paid by card or via bank transfer. The Customer agrees to pay the Fee before the due date stipulated on the invoice (15 calendar days).
11.3. auxi does not accept cheques.
11.4. In any event, the Customer agrees to pay the Fee, where applicable, before the Customer and/ or the Customer’s Authorized User starts using the Service.
11.5. auxi may charge interest on overdue amounts or suspend the provision of the Services until all overdue amounts due are fully paid. Interest will be calculated from the due date to the date of payment (both inclusive) at a rate of 8% per annum (prorated on a daily basis), or the highest rate allowed by law, whichever is less.
11.6. The invoices are sent to the Customer solely by e-mail in a non-editable PDF file and considered delivered if not automatically rejected or refused by a server.
11.7. auxi uses Stripe Inc. (“Stripe”) for payment processing services. By using Stripe payment processing services Customer, or Authorized Users on Customer’s behalf agrees to the Stripe Terms of service.
11.8. auxi does not store any payment card information.
12. TERMS, CHANGES AND TERMINATION
12.1. The period of these Terms will commence on the date when Customer accepts the Terms on our Website or Mobile App by signing up and creating an account (“Effective Date”).
12.2. As our business evolves, we may change these Terms. All Customers shall be notified about any changes to the Terms through updating our website or we may message the Customers via the Service. If a Customer would like to inquire about material changes to the Terms via email, Customer may send an email to firstname.lastname@example.org.
12.3. Customers can review the most current version of the Terms at any time by visiting this page. Any material revisions to these Terms will become effective on the date set forth in our notice, and all other changes will become effective on the date we publish the change.
12.4. auxi may terminate the Service immediately if:
12.4.1. Customer fails to pay undisputed amounts due;
12.4.2. Any regulatory decision or governmental order requiring auxi to suspend Service(s) or which is reasonably likely to result in the loss of auxi's operating authority; or
12.4.3. In an event of bankruptcy or other cause preventing auxi from providing the Service.
13. DISCLAIMERS AND LIMITATIONS OF LIABILITY
13.1. auxi will use commercially reasonable efforts to make the Services secure, free of viruses or other harmful code, uninterrupted and error free, however, auxi provides no warranty as to this.
13.2. auxi makes no representation concerning the quality of the Service and does not promise that the Service will interoperate perfectly with every operating system, browser or electronic device. Every Authorized User is different, and auxi does not guarantee that the Service will meet Authorized Users' needs or requirements or the needs or requirements of any other person or the needs or requirements set forth in any documentation.
13.3. auxi is not responsible for malfunctioning or inapplicability of the Service provided pursuant to these Terms due to improper use or a combination of the impact of technical equipment, software or malicious programs on Customer’s or Authorized User’s side.
13.4. Internet connection sufficient to the number of participants is vital for the smooth and seamless running of the Service - without an appropriate internet connection Authorized Users may not be able to extract full benefits of the Service. Customer is responsible for the internet connection and equipment necessary to access and use the Service. auxi cannot be held responsible for malfunctioning caused by inadequate internet connection or equipment.
13.6. Except for the obligations and warranties set out in these Terms, auxi excludes and Authorized Users, and Customer waive all other representations, conditions, terms, guarantees and warranties, express, implied or collateral, arising by operation of law or otherwise, including but not limited to implied warranties, terms or conditions of satisfactory quality or fitness for a particular purpose or conformance to description or sample, except to the extent such representations, conditions, terms, guarantees or warranties may not be excluded by law. To the extent that they cannot be excluded, the liability of auxi for any breach is limited, at Customer’s discretion, to:
13.6.1. Supplying the Service again; and/or
13.6.2 Refunding the Customer for the Fees paid.
13.7. The maximum aggregate liability of auxi under or in connection with the Terms or relating to the Service, whether in warranty, contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid or to be paid by the Customer under the Terms in the current 12 months.
13.8. auxi shall not be liable to Customer for any indirect, incidental, special, consequential, exemplary or punitive damages, including but not limited to damages for lost profits, contracts, revenues, savings, income, business, use, data (including Customer Data), and/or goodwill arising out of or in connection with these Terms, however caused (including through negligence) and regardless of whether Customer has been informed of the possibility or likelihood of such damages arising.
13.9. For the avoidance of doubt, nothing in these Terms limits or excludes any liability of auxi for death or personal injury caused by its negligence, for fraud or for any other liability that cannot be lawfully excluded or limited under applicable law and all disclaimers and limitations of liability only apply to the maximum extent permitted by applicable law.
14.1. Notices to auxi shall be sent by email to email@example.com, or to an address that auxi has specified for the purposes of this section. Unless Customer provides a separate address for notices, Customer hereby agrees that the email address Customer provides to auxi may be used for the purposes of sending notices to Customer.
14.2. Notices under this section shall be effective upon delivery if not automatically rejected or refused by a server.
14.3. auxi and Customer agree that the written form requirement is also complied with in the case of communication by email, unless the Terms or binding provisions that the Parties cannot deviate from under applicable law provide otherwise.
15. DISPUTE RESOLUTION, JURISDICTION AND GOVERNING LAW
15.1. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. The parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to these Terms through negotiations between a director of each of the parties with authority to settle the relevant dispute.
15.2. If the dispute cannot be settled amicably within 60 days from the date on which either party has served written notice on the other of the dispute then the remaining provisions of this clause shall apply.
15.3. The parties shall irrevocably submit to the exclusive jurisdiction of the Delaware courts for the purposes of hearing and determining any dispute arising out of these Terms, if the parties cannot resolve such dispute by the procedure set out above.
15.4. These Terms and all matters arising from it and any dispute resolutions referred to above shall be governed by and construed in accordance with Delaware law notwithstanding the conflict of law provisions and other mandatory legal provisions. If the Customer requires an earlier version of the Terms, auxi shall make these available to the Customer upon written request.
16. MISCELLANEOUS PROVISIONS
16.1. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written.
16.2. Amendment. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.
16.3. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
16.4. Survivability. Sections GRANT OF LICENSE, AUTHORIZED USERS AND USES, DATA PRIVACY AGREEMENT, and DISPUTE RESOLUTION shall survive the expiration or termination of the Agreement.