TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern all Order Schedules by and between Jaxon, Inc., a Delaware corporation with its principal place of business at 177 Huntington Ave, Suite 1703, Boston, MA 02115, USA (“Jaxon”) and the licensee set forth in the Order Schedule (“Licensee”), effective as of the Effective Date of the Order Schedule. These Terms collectively with the Order Schedule and any addenda, exhibits the amendments, which are incorporated herein, are referred to as the “Agreement.” By signing an Order Schedule, Licensee agrees to these Terms. Any capitalized terms not defined in these Terms have the meanings ascribed to them in the Order Schedule. The terms of this Order Schedule supersede prior Order Schedules and any conflicting or inconsistent provisions of the Terms. By entering into and executing an Order Schedule, the parties agree as follows:
“Documentation” means user manuals, training materials, and any other technical information that describes the use, installation, or operation of Product that Jaxon provides to Licensee pursuant to this Agreement.
“Order Schedule” means Jaxon’s standard document for ordering Product and Services.
“Product” means the Jaxon software in executable or object code form specified in the Order Schedule and any fixes, updates, upgrades, modifications, improvements, enhancements, new releases and derivative works thereof.
“Professional Services” means Jaxon’s development, integration, implementation, reporting, analysis and other consulting services set forth in the Order Schedule and a statement of work.
“Services” means, collectively, the SubscriptionServices, Technical Services and Professional Services.
“Subscription Services” means the hosting, maintenance and/or support services set forth in the Order Schedule.
“Technical Services” means Problem Specification, Training Planning, and Installation & Security Compliance services as set forth in the Order Schedule.
“Third-Party Software” means software components licensed from a third party that are embedded in or included with Product, including, without limitation, programs, applications, tools, utilities, libraries, and other programming code that are made available from third parties, under license a free or open source software licensing model.
2.1 Grant. Subject to the terms of this Agreement, Jaxon grants to License a non-exclusive, non-transferable, non-sublicensable right to: (a) use Product during the Term set forth in the Order Schedule; (b) make a reasonable number of copies of Product for backup purposes; and (c) reproduce Documentation for use with the Product.
2.2 Restrictions. Licensee’s permitted use of Product and Documentation is limited as set forth above and in the Order Schedule, and only in connection with and only so long as Licensee is entitled to use a Product in accordance with this Agreement. Licensee may not, and will ensure that any representative or agent of Licensee does not: (a) alter, modify, adapt or translate the Product or Documentation, including without limitation, unlocking, translating, decompiling/reverse compiling, disassembling/reverse assembling, or reverse engineering the Product; (b) delete or in any manner alter the copyright, trademark, or other proprietary rights notices of Jaxon, if any, appearing on a Product and Documentation as delivered to Licensee; or (c) distribute or provide any third party with a copy of or access to Product or Documentation without prior written approval of Jaxon.
2.3 Third-Party Software. The Product may include Third-Party Software. Third-Party Software included with the Product is redistributed under the terms of the applicable Third-Party Software license. Any terms of licenses for Third-Party Software that must be passed through to Licensee are included with or referenced in the Order Schedule or Documentation.
2.4 Proprietary Rights. All rights are reserved. Title and ownership of each Product and Documentation; all modifications, improvements, enhancements, and derivative works thereof; all comments and other feedback on the Product and Documentation; and all associated intellectual property rights, shall at all times remain with Jaxon and its licensors. Title and ownership of all Third-Party Software shall at all times remain with the applicable owner of the Third-Party Software. Nothing contained in the Agreement is intended to or shall transfer any title or ownership interest in Product, Documentation or Third-Party Software. Non-public elements of the Product and Documentation constitute confidential information of Jaxon.
3.1 Subscription Services. Jaxon will provide the Subscription Services for the fees set forth in the Order Schedule. Jaxon may collect, use, store and transmit technical and related information about Licensee’s use of Product, including server internet protocol address, hardware identification, operating system, application software, peripheral hardware, and Product usage statistics, to facilitate the provisioning of updates, support, invoicing, and online services.
3.2 Technical Services. Jaxon will provide the Technical Services for the fees set forth in the Order Schedule.
3.3 Professional Services. Jaxon will provide the Professional Services for the fees set forth in the Order Schedule and as follows.
(a) Process. From time to time Licensee may request from Jaxon Professional Services by providing Jaxon with reasonably detailed written description of Licensee’s needs, including results to be achieved and a timeline. Licensee has no obligation to request, and Jaxon has no obligation to perform, Professional Services. A Jaxon project manager will schedule a time to discuss Licensee’s request, and to begin assessing and scoping the project with Licensee. Following the initial meeting(s), Jaxon will assess and scope the proposed engagement (each a “Project”), and then prepare a statement of work (“SOW”) that specifies, among other things: (a) scope (i.e., “what is being performed”), (b) contact information, (c) logistics, (d) work estimate, including milestones/deliverables, expected resource requirements and estimated time, (e) Licensee resources and responsibilities, (f) deliverable schedule, and (g) fees. A separate SOW will be required for each Project. Neither party is obligated to enter into or sign an SOW. Each SOW will become part of this agreement when signed by both parties and, unless specified in the SOW, will expire upon completion of the Project. Following completion and signing of an SOW, Projects generally follow a standard process that is summarized in Jaxon’s description of its Professional Services, but more particularly specified in the applicable SOW.
(b) Jaxon Deliverables. Jaxon’s Project deliverables will be defined in the SOW (“Jaxon Deliverables”), and Jaxon will deliver the Jaxon Deliverables in accordance with the schedule, destination, format, and acceptance criteria set forth in the SOW. The Jaxon project manager will provide Licensee’s project manager with notice of any delay in a Jaxon Deliverable’s delivery date as far in advance of its scheduled due date as reasonably practicable. Each Jaxon Deliverable will be deemed accepted by Licensee unless, within the acceptance period specified in the SOW, Licensee rejects the Jaxon Deliverable in a written notice to Jaxon that specifies in reasonable detail the reason for the rejection. If Licensee rejects the Jaxon Deliverable, Jaxon will use commercially reasonable efforts to: (1) promptly correct the Jaxon Deliverable, or (2) if it is impracticable to promptly correct the Jaxon Deliverable, provide Licensee with a written plan to correct the Jaxon Deliverable, including a schedule. If Jaxon disagrees with Licensee’s rejection of the Jaxon Deliverable, Jaxon’s project manager will immediately notify Licensee’s project manager and schedule a meeting to discuss and resolve the issue. If the project managers are unable to resolve the issue, then it will be referred to the parties’ executives for resolution in accordance with Section 10.10 below.
(c) Licensee Deliverables. Licensee and License agents and vendors (if any) will provide Jaxon at no charge and in a timely matter with all facilities, equipment, data, information, tools, software, documentation, materials, data or other information or resources, as well as access to and responses from their personnel, agents, and vendors (“Licensee Deliverables”), reasonably required by Jaxon to provide the Professional Services under each SOW. Licensee will ensure that it has all rights and consents necessary for Jaxon to use such Licensee Deliverables. Licensee understands and acknowledges that Jaxon’s performance of the Professional Services depends on Licensee and Licensee agents and vendors (if any) providing the Licensee Deliverables in a timely manner, and that nay failure or delay will prevent or delay Jaxon’s performance of the Professional Services. Licensee is responsible for and assumes the risk of any problems resulting from the Licensee Deliverables.
(d) Changes. Some evolution of the specifications and SOW based on daily interaction between the parties is expected and minor changes that do not materially impact the SOW will not require a formal, written change order. However, any changes materially impacting the SOW (including scope, specifications, deliverables, schedule or fees) must be mutually agreed upon in writing before proceeding. The originator of the change must submit a written request setting forth the proposed change in reasonable detail to the other party’s project manager, who in turn will review the request and respond within a reasonable period. The Jaxon project manager will document the change and obtain approval from both parties.
Fees and Payment
4.1 Fees. Licensee shall pay Jaxon the fees in USA dollars for each Product, Subscription Service, Technical Service and Professional Service in the amounts and on the terms set forth in Exhibit A or applicable SOW.
4.2 Payments. Payments of Subscription Fees are due in advance monthly no later than the 1st of every month by ACH or credit card recurring payment. The first month’s use shall be prorated and due immediately upon execution of the Order Schedule. Payment of Subscription Fees must be paid in full prior to access and use. Jaxon will invoice Licensee for Technical Service and Professional Service Fees each month, and unless stated otherwise in the Order Schedule, invoices are due within thirty (30) days after Jaxon provides Licensee with an invoice and accounting for such costs. At Licensee’s request, Jaxon will provide original receipts and documentation supporting such costs. Payments made after their due date will incur a daily simple interest from the original invoice due date at a rate equal to 1% per month or the maximum rate permitted by applicable law, whichever is lower. Licensee shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorneys’ fees and court costs. If Licensee does not pay Jaxon within thirty (30) days after the due date of any invoice, Jaxon may, with prior written notice at its sole discretion, in addition to pursuing nay of its other remedies, either suspend provision of the applicable Jaxon Product and/or performance of the applicable Professional Services until all outstanding payments are made, or terminate this Agreement. No such suspension shall affect Jaxon’s rights or Licensee’s accrued obligations hereunder.
5.1 “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) identified by Discloser as “confidential” or “proprietary,” or that the Recipient otherwise knows or should reasonably know by the content or context of the disclosure is confidential to Discloser, including without limitation confidential and proprietary aspects of a Product and the Documentation. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) license keys; (b) information regarding Jaxon’s pricing, product roadmaps and strategic marketing plans; and (c) non-public Documentation and other materials related to the Product. The existence of this Agreement shall not be considered Confidential Information, but the terms of this Agreement shall be treated as Confidential Information.
5.2 Exceptions. This Agreement imposes no obligation on the Recipient with respect to information the Recipient can establish: (a) was in the possession of or was known by the Recipient prior to its receipt from the Discloser without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Recipient form a third party without an obligation to keep such information confidential; or (d) is independently developed or created by the Recipient without the use of or reference to Discloser’s Confidential Information.
5.3 Protection. Recipient shall protect form unauthorized disclosure any Confidential Information disclosed by Discloser in the same manner Recipient protects its own Confidential Information, but using at least reasonable care. Licensee agrees to maintain confidentiality of the terms of this Agreement and will not disclose any of the terms without prior written approval of Jaxon.
5.4 Use and Disclosure. Recipient may use Discloser’s Confidential Information only for exercising rights and performing obligations in connection with this Agreement. Except as otherwise expressly provided in this Section, neither party receiving Confidential Information of the other may disclose it to any third party without the prior written consent of the Discloser, except to the Recipient’s own employees, consultants or agents to whom disclosure is necessary to fulfill the purposes set forth in this Agreement and who are advised about and the confidential nature of the information, and agree to be bound by confidentiality of the terms of this Agreement and will not disclose any of the terms without prior written approval of Jaxon. Neither party may disclose Confidential Information to any third party, except as may be required: (a) to implement, perform and enforce the terms of this Agreement; (b) by law; or (c) under appropriate nondisclosure terms to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction.
5.5 Legally Compelled Disclosure. Notwithstanding the foregoing, either party may disclose Confidential Information if required by law or regulatory authorities, provided that if Recipient is required to disclose Confidential Information by applicable law, regulatory authorities or court order, Recipient shall notify Discloser of the required disclosure promptly in writing and shall cooperate with Discloser in any lawful action to contest or limit the scope of the required disclosure before disclosing any Confidential Information. If the Recipient is compelled pursuant to a legal proceeding or otherwise required by law to disclose the other party’s Confidential Information, then before any such disclosure the Recipient will promptly notify the Discloser so the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with this Agreement and the Recipient shall use its best efforts to obtain confidential treatment for such Confidential Information. In any such legally compelled disclosure, only that portion of the Discloser’s Confidential Information that is legally required to be disclosed may be disclosed.
Representations and Warranties
6.1 By Jaxon. Jaxon represents and warrants that during the term of this Agreement: (a) the Product will conform to the Product’s then-current Documentation in all material respects; and (b) Jaxon will provide the Services in a professional and workmanlike manner in accordance with industry standards and practices.
6.2 By Licensee. Licensee represents and warrants that during the term of this Agreement Licensee shall be responsible for and comply with all laws applicable to Licensee’s access and use of Product, including without limitation, obtaining consents for, collection, use and storage of personal information and use of the Product with third-party equipment, software and technology.
6.3 Disclaimer. Except as expressly provided in this Agreement, and to the maximum extent permitted by Law, neither party makes any warranties to the other party, and each party disclaims all warranties, oral or written, express, implied or statutory (either in fact or by operation of law), including without limitation, any warranties of fitness for a sufficient or particular purpose, non-infringement or arising from any course of dealing, course of performance or usage in trade. The warranties set forth in this Section 6 are the only warranties made by Jaxon in connection with Product and Services. Jaxon’s warranty obligations are expressly subject to the Product and Services being used in accordance with this Agreement, Documentation and any other instructions provided by Jaxon. Licensee acknowledges that the Product and Services are complex with a variety of dependencies, and as such, Jaxon does not warrant that Product is error-free or that the operation of the Product or provision of Services will be secure, uninterrupted, or accepted by any third party.
7.1 By Jaxon. Jaxon shall, at its own expense, defend Licensee against any third party action based on a claim that the Products (excluding Third-Party Software) infringe such third party’s USA patents, copyrights or trademarks issued as of the date of this Agreement, and indemnify and hold Licensee harmless against all costs, expenses (including reasonable attorneys’ fees), losses, liabilities and damages awarded against Licensee as a result of such claim. As a condition to such indemnification, Licensee shall: (a) provide Jaxon with prompt written notice of any claim; (b) permit Jaxon to assume and control the defense of any action; (c) not enter into any settlement or compromise of any claim without Jaxon’s prior written consent; and (d) provide Jaxon with reasonable assistance in its defense and settlement. In the event that Product supplied to Licensee becomes subject to a claim of intellectual property infringement or if Jaxon believes that such a claim is likely, Jaxon, as is option, may either: (a) modify the Product such that it no longer infringes; (b) obtain, at Jaxon’s cost, a license that is sufficient to allow Licensee to continue to use the Product pursuant to this Agreement; or (c) if Jaxon determines that the preceding remedies are not reasonably practicable, Jaxon may terminate this agreement and refund to Licensee the unused prepaid amounts paid by Licensee for Product. Jaxon shall have no obligation or liability to Licensee to the extent that any finding of infringement is based upon or results from: (i) use of Product in conjunction with any equipment, software or technology not provided by Jaxon where Product alone would not be infringing; (ii) any modification or enhancement to Product not made by Jaxon; (iii) use of Product in any unauthorized or unlawful manner or for any unauthorized or unlawful purpose or otherwise in violation, or outside the scope, of the rights granted herein; (iv) use of other than the latest version of Product, if such claim could have been avoided by use of the latest version and such latest version has been made available to Licensee; or (v) Third-Party Software. The foregoing states the sole and exclusive indemnification liability of Jaxon under this Agreement.
7.2 By Licensee. Licensee shall, at its own expense, defend Jaxon against any third party action based on a claim (a) unauthorized or unlawful use of Product or Services; (b) arising out of Licensee’s negligence or failure to properly install and support Product; and (c) any use of Product or Services with unauthorized equipment, software or technology, and indemnify and hold Jaxon harmless against all costs, expenses (including reasonable attorneys’ fees), losses, liabilities and damages awarded against Jaxon as a result of such claim. As a condition to such indemnification, Jaxon shall: (i) provide Licensee with prompt written notice of any claim; (ii) permit Licensee to assume and control the defense of any action; (iii) not enter into any settlement or compromise of any claim without Licensee’s prior written consent; and (iv) provide Licensee with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of Licensee under this Agreement.
Limitation of Liability
Neither party shall be liable for (a) any consequential, incidental, indirect, special or exemplary damages, however caused and under any theory of liability, whether asserted in contract, tort (including negligence), strict liability or otherwise, including without limitation, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data, cost of procurement of substitute goods or services, or other intangible loss, and whether or not such party has been advised of or should have been aware of the possibility of any such damages and notwithstanding the failure of the essential purpose of any remedy; or (b) any damages in excess of the fees received by Jaxon during the twelve (12) months preceding the claim.
Term and Termination
9.1 Term. This Agreement is effective and legally binding as of the Effective Date and will continue for the term set forth in the Order Schedule ("the “Term”), unless earlier terminated in accordance with this Agreement.
9.2 Termination for Breach. After complying with Section 10.10, either party may terminate this Agreement effective thirty (30) days after written notice describing in reasonable detail the other party’s material breach if the other party fails to cure the breach within such thirty (30) day period. This right to cure does not apply to payment obligations.
9.3 Effects of Termination. Upon expiration or termination of this Agreement, Licensee shall pay Jaxon all accrued but unpaid amounts then due and cease using Product. Each party shall promptly return or destroy (and certify such destruction in writing) the Confidential Information of the other party.
9.4 Survival. Defined terms, accrued but unpaid payment obligations, and provisions which by their nature are intended to survive, including without limitation, the rights and obligations of the parties under Sections 2.2-2.4, 4-5, 6.3, and 7-10, shall survive termination of this Agreement.
10.1 Notices. Any legal notice, report, statement, request or other communication required or permitted under this Agreement shall be in writing and delivered personally or by courier (effective upon receipt), by registered USA mail, postage prepaid (effective three (3) business days after mailing), or sent by facsimile or electronic mail (effective upon receipt, as evidenced by acknowledgment or confirmation of receipt), to the addresses set forth on the Order Schedule. Notice of change of address shall be given in the same manner as other communications.
10.2 Entire Agreement. This Agreement, including the Order Schedule and any addenda and amendments, constitute the entire agreement between the parties as of the Effective Date of the Order Schedule with respect to their subject matter and supersedes all prior written or oral proposals, discussions, communications or agreements related to the same subject matter. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by Licensee will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, the Order Schedule or an SOW, regardless of any failure of either party to object to such terms, provision or conditions.
10.3 Amendments and Waivers. No amendment of an Order Schedule shall be valid unless made in writing and signed by duly authorized representatives of the parties hereto. Jaxon may amend these Terms effective thirty (30) days after written notice, and Licensee’s continued use of the Produce or Service shall constitute Licensee’s acceptance thereof. No waiver of any term of this Agreement shall be valid unless made in writing and signed by the duly authorized representative of the waining party. No waiver by either party of any breach by the other shall be deemed a waiver of any preceding or subsequent breach.
10.4 Assignment. Neither this Agreement or any rights or obligation hereunder may be assigned by Licensee without the prior written consent of Jaxon, which consent shall not be unreasonably withheld. This Agreement shall inure to the benefit of and be binding on the parties and their respective successors and permitted assigns.
10.5 Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached the Agreement for failure or delay in fulfilling or performing an term of the Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to fires, earthquakes, floods, embargoes, wars, acts of war (whether war is declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of nature, or actions, omissions or delays in acting by any governmental authority or other party, or any non-Jaxon-specific network or telecommunications failure or congestion that affects a Product. This provision shall not apply to payment obligations.
10.6 Export Laws and Regulations. Each party hereby acknowledges that the rights and obligations set forth in the Agreement are subject to the laws and regulations of the United States relating to the export of products and technical information. Without limitation, each party shall comply with all such laws and regulations.
10.7 Independent Parties. Each party is independent of the other, and nothing contained herein shall be deemed or construed to create any partnership, joint venture, agency, fiduciary, or other similar relationship. The parties are not, and shall not represent themselves as a principal, agent, partner or joint venturer of the other. No party shall attempt to act, or represent itself as having the power, to bind the other party or create any obligation on behalf of the other party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.
10.8 No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of Jaxon and Licensee, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
10.9 Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without giving effect to principles of conflict of laws and excluding the United Nations Convention of Contracts for the International Sale of Goods or by the Uniform Computer Information Transactions Act (“UCITA”).
10.10 Dispute Resolution.
(a) Good Faith Discussions. If a dispute, controversy or claim arises out of or relates to this Agreement, an Order Schedule, or the interpretation, application, breach, termination, or enforcement thereof, including any claim of inducement by fraud or otherwise (“Claim”), the parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each party.
(b) Mediation. If the parties have not resolved the dispute within thirty (30) days after the initial meeting to resolve the dispute, then before resorting to litigation, arbitration or some other dispute resolution procedure, the parties agree first to try in good faith to resolve the dispute through non-binding mediation in accordance with the Mediation Procedure then in effect of the CPR Institute for Dispute Resolution (“CPR”) available at www.cpradr.org, except where that procedure conflicts with the following provisions, in which case these provisions control. The mediation will be conducted in Boston, Massachusetts and will be attended by a senior executive with authority to resolve the dispute from each of the parties. The mediator will be neutral, independent, disinterested and will be selected from a professional mediation firm such as ADR Associate or CPR.
(c) Binding Arbitration. Any Claim that is not settled by the mediation set forth above, will be submitted for resolution by binding arbitration pursuant to the rules then pertaining of the CPR Institute for Dispute Resolution for Non-Administered Arbitration (available at www.cpradr.org), or successor (“CPR”), except where those rules conflict with these provisions, in which case these provisions control. The arbitration will be held in Boston, Massachusetts.
(d) Equitable Relief. Notwithstanding anything to the contrary in this Agreement, in addition to any other available remedies at law, each party shall be entitled to protect its Confidential Information and proprietary rights through equitable relief via any court of competent jurisdiction. Each party shall be entitled to equitable relief (including restraining order, injunction or specific performance) in the event of a breach by the other party of the such party’s proprietary rights, or of the other party’s confidentiality obligations, without having to post a bond or other security, or to prove damages or the inadequacy of damages.
(e) Material Inducement. Each party acknowledges that this Section constitutes a material inducement upon which the other party has relied in entering into this Agreement.
10.11 Severability. If any provision of this Agreement is invalid or unenforceable, the reaming provisions will remain in full force and effect. The parties agree that the provision will be deemed severed from this Agreement and such invalidity shall not affect the validity and enforceability of the remaining provision for the invalid provision which most closely approximates the intent and economic effect of the invalid provision.