Welcome to Automox. Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access or use the Service (defined below) provided to you by Automox Inc. (“Automox,” “we,” “our,” or “us”) through the Automox website (the “Site”). Automox provides an online service that assists customers in the management, monitoring and applying of software patches to devices (“Service”). “Customer,” “you”, or “your” means the individual or business entity who registers for the Service and accepts these Terms. If you are an individual acting on behalf of a business entity, you represent and warrant that you have the authority to bind such business entity to these Terms. “Agreement” means these Terms and any terms provided or made available to you during the ordering or registration process (“Order Process”) into which these Terms are incorporated, including without limitation all pricing and payment terms.
In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and mailers), these Terms shall always govern and take precedence. In the case of inconsistencies between these Terms and the Order Process, the Order Process shall always govern and take precedence.
Automox may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Service after the “Last Updated” date at the bottom of these Terms. Your continued access to or use of the Service after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Service.
1.1 Platform. Subject to the terms and conditions of this Agreement, Automox shall provide access to and use of the Platform to Customer solely as necessary for Customer to use the Service. “Platform” means all technology and intellectual property, including any APIs and any Automox Agent (as defined below), that Automox makes available to Customer hereunder and that is used by Automox to configure and deliver the Service to Customer in accordance with this Agreement.
1.2 Access and Use Rights. Subject to the terms of this Agreement, Automox grants Customer a limited, non-exclusive, non-sublicensable, and non-transferable right to access and use the Platform and Service. In order to access or use certain features of and functionalities of the Service, Customer must install the Automox software agent (the “Agent”). Subject to the terms of this Agreement, Automox grants Customer a limited, non-exclusive, non-sublicensable, and non-transferable license to install, use, and reproduce the Agent on the number of desktops, laptops, servers, virtual machines, or other device endpoints (each an “Endpoint”) indicated during the Order Process. Customer may not modify the Platform, create derivative works of the Platform, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. Customer may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. Customer may use the Platform only while these Terms remain in effect.
1.3 Administrative Usernames and Passwords. Automox shall provide Customer a unique username and password to enable Customer to access the Platform pursuant to this Agreement. Customer acknowledges and agrees that only the authorized number of users, if applicable, are entitled to access the Platform with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords, and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Automox promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Automox reserves the right to terminate any username and password, which Automox reasonably determines may have been used by an unauthorized third party or an individual other than the Customer to whom such username and password was originally assigned.
1.4 Usage Data. “Usage Data” means any and all data collected or generated by Automox or Customer in connection with the Service (including without limitation, any information of or related to device data and information, login passwords, public keys, network monitoring, analysis in an aggregated form. Automox may (i) internally use and modify any Usage Data for the purposes of providing services to Customer (ii) leverage learnings derived from Usage Data to enhance the Service for Customer and other Automox customers, and (ii) freely use and publish aggregated data for Automox’s business purposes without restriction; provided that Automox does not disclose any Customer Content (as defined below) or Confidential Information. Automox may use all Usage Data for any lawful purpose, provided that Automox shall not disclose or use any Customer Content in violation of this Agreement.
1.5 Support. Automox shall provide Customer with support regarding the Platform and Service in accordance with the support program purchased through the applicable Order Process. Customer shall promptly report to Automox those bugs, errors and non-conformities regarding the Platform and Service of which Customer becomes aware. All support services shall be provided only to administrative users that have been assigned administrative rights in the Automox Platform. In no event shall Automox have any obligation to provide support services directly to any non-administrative users.
2. FEES; PAYMENTS.
2.1 Fees. Customer shall pay Automox all fees described in and in accordance with the applicable Order Process, or as described on the Site (“Fees”), and, if applicable, Customer hereby authorizes Automox to charge Customer for all applicable Fees using Customer’s selected method of payment. All payments are non-refundable. All Fees shall be paid in U.S. dollars.
2.2 Invoiced Payments. Unless otherwise agreed in writing, Automox will invoice Customer for all Fees. Customer shall pay all Fees described in an invoice within 30 days of the date thereof. All Fees exclude, and Customer shall be responsible for, all sales, use, excise and other taxes applicable to the transactions contemplated by this Agreement, except for taxes based on Automox’s income. Automox may assess a late payment fee of the lesser of one and one-half percent per month or the maximum rate permitted by applicable law on all amounts not paid when due from the due date until paid. In the event of any failure by Customer to make payments of any undisputed Fees in accordance with this Section 2.2, Automox shall be entitled to suspend its performance of the Service upon notice to Customer. All Fees shall be considered valid unless disputed by you in writing within 30 days after your receipt of the applicable invoice. No adjustments will be made for disputed Fees made more than 30 days after that date. All Fees shall be paid in U.S. dollars.
2.3 Subscriptions and Auto-Renewals. IF CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL OR IF CUSTOMER ELECTS DURING THE ORDER PROCESS TO PURCHASE A SUBSCRIPTION TO THE SERVICE THAT AUTOMATICALLY RENEWS, AUTOMOX MAY CHARGE CUSTOMER’S SELECTED PAYMENT METHOD AUTOMATICALLY FOR SUCH RENEWAL, UNLESS THE CUSTOMER NOTIFIES AUTOMOX THAT THE CUSTOMER WANTS TO CANCEL THE SUBSCRIPTION OR DISABLE AUTO-RENEWAL. Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If Automox does not receive payment for a renewal prior to the date of renewal, Automox may, in its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment Customer has obtained to replace its provided form of payment (e.g., Customer has obtained a replacement credit card number), and Customer hereby authorizes Automox to do so, and (iii) terminate or suspend Customer’s subscription.
2.4 Variable Fee Calculations. For Fees charged based on number of Endpoints, Automox will bill Customer for the maximum number of Endpoints reflected in the Customer console at any point in time during a calendar month) on a monthly basis in arrears. Any Endpoint that is registered with the Service for more than one hour during any month will be counted towards the maximum number of Endpoints in the Customer console. Instructions for de-registering an Endpoint can be found in the support section of the Site.
3. CUSTOMER RESPONSIBILITIES.
3.1 Content and Users. As between Automox and Customer, Customer shall be solely responsible for (a) all acts or omissions of Customer’s users in relation to the use of the Service, (b) all Customer information, data, files, links, images, works of authorship, and other Customer materials submitted or made available to Automox by Customer and used in connection with the Service, including information about Customer’s information technology infrastructure provided to Automox (“Customer Content”) and (c) any liability that may arise from any act or omission of Customer’s users in relation to the Service and all Customer Content. Customer Content does not include any Usage Data.
3.2 Limitations. Customer agrees that Customer shall not: (a) permit any party to access and/or use the Service, other than the Users authorized under this Agreement; (b) rent, lease, loan, or sell access to the Service or Platform to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service, Platform or any part thereof, or create an undue burden on the Service, Platform or the networks or services connected to the Service; (d) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) without Company’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (g) cover or obscure any page or part of the Service by any means. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Service, Platform or any part thereof.
4. WARRANTY DISCLAIMER. AUTOMOX EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICE, THE PLATFORM, THE SITE AND THE LANDING PAGE.
5. TERM AND TERMINATION.
5.1 Term. Unless otherwise expressly set forth in the applicable Order Process, the “Term” of this Agreement shall commence on the date that Customer agrees to this Agreement and shall continue until this Agreement is terminated as set forth herein.
5.2 Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for ten days following the breaching party’s receipt of written notice of the breach.
5.3 Termination for Convenience. Except as otherwise provided for herein, either party may terminate this Agreement for any reason by providing the other party at least thirty days prior written notice.
5.4 Effect of Termination. Upon termination or expiration of this Agreement, (a) Automox shall terminate the Service and remove all copies of the Customer Content from servers within its control and (b) Customer shall promptly pay Automox all amounts owed under this Agreement without regard to whether any invoices had or had not been issued. Sections 2, 4, 5.3, 6, and 7 through 10 shall survive termination or expiration of this Agreement.
6. IP OWNERSHIP.
6.1 Ownership of Platform. As between Automox and Customer, Automox owns all right, title and interest in and to the Platform and Service, including any and all intellectual property and proprietary rights (including without limitation copyrights, patents rights, trade secret right, rights of reproduction, trademark rights, rights of publicity, moral rights, contract rights and the right to secure registrations, renewals, reissues, and extensions thereof) in any country or jurisdiction of the world (“Intellectual Property Rights”) related to or embodied in the Platform and Service. Customer acknowledges and agrees that if Customer suggests any new features, functionality or performance for the Service and/or the Platform that Automox subsequently incorporates into the Service and/or the Platform, Automox shall have a worldwide, non-exclusive royalty-free perpetual right and license to use and incorporate such suggestions into the Service and/or the Platform. Customer acknowledges that the incorporation of such new features, functionality, or performance shall be the sole and exclusive property of Automox and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Automox pursuant to the terms of this Agreement.
6.2 Ownership of Customer Content. As between Automox and Customer, Customer Content shall at all times remain the property of Customer or its licensors. Automox shall have no rights in Customer Content other than the limited right to use such Customer Content as required for Automox to perform the Service in accordance with this Agreement.
6.3 Third-Party Patches. The Service facilitates the installation of software patches provided by third-parties (“Third-Party Patches”). Third-Party Patches are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Automox, and Automox is not responsible for any Third-Party Patches installed through the Service. Automox makes no representations or warranties regarding any Third-Party Patches installed through the Service or that is otherwise available using the Service. Customer represents and warrants that Customer has the right to receive all Third-Party Patches that Customer installs or otherwise gains access to through the Service.
7. CONFIDENTIAL INFORMATION.
7.1 Definition. “Confidential Information” means all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) hereunder that is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Platform shall be considered Automox’s Confidential Information, notwithstanding any failure to mark or identify it as such. The terms and conditions of this Agreement are Confidential Information of the parties, but the relationship of the parties created by this Agreement is not Confidential Information.
7.2 Protection. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall disclose the Confidential Information of the Disclosing Party only to the employees or individual independent contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.3 Exceptions. The Receiving Party’s obligations under Section 7.2 above with respect to any Confidential Information of the Disclosing Party shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available through the Service that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, Customer grants Automox permission to use its name in Automox’s marketing materials and to publish its name, trademark and/or logo on the Automox website, solely for the purpose of identifying Customer as a customer of Automox.
8.1 Claims Against Customer. Automox shall defend, at its own` expense, any claim, suit or action against Customer brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Platform infringes any U.S. patents or any copyrights or misappropriates any trade secrets of such third party (“Customer Claim”), and Automox shall indemnify and hold Customer harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Customer specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Automox in writing of such Customer Claim; (b) giving Automox sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Automox’s request and expense, assisting in such defense. Notwithstanding the foregoing, Automox shall have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data not supplied by Automox if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than Automox or its authorized agents or subcontractors. If use of the Service is, or in Automox’s opinion is likely to become, enjoined, Automox may at its discretion either: (i) modify the Platform so that it is non-infringing; (ii) replace the portion of the Platform that infringes or allegedly infringes with non-infringing components that is functionally equivalent; (iii) obtain a license that shall enable Customer to continue the use of the Service and Platform as provided hereunder; or, if none of the foregoing are commercially reasonable for Automox, (d) terminate this Agreement. THIS SECTION 8.1 STATES AUTOMOX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS.
8.2 Claims Against Automox. Customer shall defend, at its own expense, any claim, suit or action against Automox brought by a third party to the extent that such claim, suit or action arising from or related to (i) any User acts or omissions, or (ii) any failure by Customer to meet its obligations under Section 3 (each, an “Automox Claim”), and Customer shall indemnify and hold Automox harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Automox specifically attributable to such Automox Claim or those costs and damages agreed to in a monetary settlement of such Automox Claim. The foregoing obligations are conditioned on Automox: (a) promptly notifying Customer in writing of such Automox Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this Section 8.2 or otherwise with respect to any claim to the extent based upon any gross negligence or intentional misconduct of Automox.
9. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL AUTOMOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF AUTOMOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTOMOX’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS RECEIVED BY AUTOMOX FROM CUSTOMER DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
10. GENERAL PROVISIONS.
10.1 Governing Law. This Agreement is governed and construed in accordance with the laws of the State of Colorado without giving effect to any rule or law that would apply the law of another jurisdiction. Both parties submit to the exclusive personal jurisdiction in Colorado and further agree that any cause of action arising under this Agreement shall be brought in a court in Denver County, Colorado.
10.2 Arbitration Agreement. Please read this Arbitration Agreement carefully. It is part of your contract with us and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Automox.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Automox should be sent to: 1401 Walnut St. Suite 300, Boulder, CO 80302. After the Notice is received, you and Automox may attempt to resolve the claim or dispute informally. If you and Automox do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Automox made to you prior to the initiation of arbitration, Automox will pay you the greater of the award or 125% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section “(c)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Time Limits. If you or Automox pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Automox, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Automox.
g. Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Automox in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Automox waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other User.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Automox.
m. Small Claims Court. Notwithstanding the foregoing, either you or Automox may bring an individual action in small claims court.
n. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
p. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state and federal courts located in Denver, Colorado, for such purpose.
10.3 Compliance with Laws. Each party shall comply with all applicable laws, rules and regulations while performing under this Agreement.
10.4 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
10.5 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.
10.6 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
10.7 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, or any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without the other party’s prior written consent; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing shall be void. This Agreement shall inure to the benefit of and be binding upon any permitted successors or assigns.
10.8 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-Customer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Automox shall work exclusively for Automox and shall not, for any purpose, be considered employees or agents of Customer. Automox assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
10.9 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified during the Order Process or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five days after the date of mailing.
10.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
10.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in a writing duly executed by authorized representatives of both parties. Any standard terms associated with a Customer purchase order or other order document (e.g., general terms and conditions attached to the purchase order form) will be not binding on the parties and of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to Services provided under this Agreement. Similarly, any terms required to be accepted electronically through any Customer vendor enrollment, login, invoice submission, or other, process will not apply to this Agreement, are expressly rejected by the parties, and form no basis for any agreement between the parties; notwithstanding any indication of “agreement” to such terms, no such agreement is formed between the parties and the parties acknowledge that only authorized representatives of the parties may enter into agreements between the parties or amendments to this Agreement.
Last Updated: June 12, 2019