Welcome to Automox. Please read the following Terms of Service Agreement (“Agreement”) carefully as it contains the legal terms and conditions that you agree to when you access or use the Automox “Service” (an online service that assists customers in the management, monitoring and applying of software patches to devices) provided to you by Automox Inc. (“Automox,” “we,” “our,” or “us”). “Customer,” “you”, or “your” means the individual or entity that registers for the Service and accepts this Agreement. If you are an individual acting on behalf of an entity, you represent and warrant that you have the authority to bind such entity to this Agreement. “Agreement” means this document and any terms provided or made available to you as part of the ordering or registration process (the “Order”) into which this document is incorporated, including without limitation all pricing and payment terms.
In the case of inconsistencies between this Agreement and information included in other materials (e.g., promotional materials and mailers), this Agreement shall always govern and take precedence. In the case of inconsistencies between this Agreement and the Order, the Order shall always govern and take precedence.
Automox may modify this Agreement (other than the Order 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 this Agreement. Your continued access to or use of the Service after the modifications have become effective will be deemed your conclusive acceptance of the modified Agreement.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 "Administrator". means a person who signs up for the Service on behalf of Customer or is authorized by Customer via certain functionalities of the Service, and that administers the Service on Customer’s behalf.
1.2 "Automox Agent" Smeans an Automox software agent that is intended to run on an Endpoint, such as a User’s computer. The Service includes any and all Automox Agents.
1.3 "Customer Data" means all information, data, files, links, and other materials submitted to the Service by Customer or Users, including information regarding information technology infrastructure, provided to Automox under this Agreement. Customer Data excludes Usage Data.
1.4 "Documentation" means the User documentation provided or made available by Automox to Customer describing the use and operation of the Service.
1.5 "Endpoint" means any Endpoint (e.g., computer, server, or laptop) that is part of Customer’s systems or network and that accesses, is managed or tracked by, or is registered to access, the Service. Instructions for de-registering an Endpoint can be found in the support section of the Automox website.
1.6 "Free Tier" means a level or tier of the Service that is free to a customer and enables only certain monitoring of Endpoints (e.g., not patching). Automox has no obligation to provide the Free Tier and may discontinue providing the Free Tier at any time.
1.7 "Usage Data" means any and all data collected or generated by Automox in connection with the Service (including without limitation, any information related to Endpoints). Usage Data does not include public keys, user names, or passwords, which are part of Customer Data.
1.8 "User" means any Customer employee or contractor, or other individual or identity, that accesses or is authorized by Customer (including by any Administrator) to access the Service.
2.1 Service. Subject to the terms and conditions of this Agreement, Automox will provide the components of the Service that are specifically described in an Order. Each Order will (a) reference this Agreement, (b) be incorporated by reference into this Agreement, and (c) be subject to the terms and conditions of this Agreement.
2.2 Access; Limited License. Subject to the terms and conditions of this Agreement, Automox grants Customer, during the Term, a limited, revocable, non-exclusive, non-sublicenseable, and non-transferable right to access and use the Service to the extent identified in an Order. To access or use certain features and functionalities of the Service, Customer must install and use one or more Automox Agents. Subject to the terms and conditions of this Agreement, Automox grants Customer, during the Term, non-exclusive, non-transferable, non-sublicensable license to install and use any Automox Agent (or, with Automox’s written permission, Automox’s documented APIs), in object code form solely in order to access and use the Service via the Automox Agent for Customer’s internal business purposes in accordance with such Automox Agent’s documentation (or such API’s documentation).
2.3 Usage Limitations. Customer shall not, and shall not permit any third party to: (a) use the Service (including any Automox Agent or Documentation) on behalf of any third party (except to the extent the third party is a contractor to Customer), (b) use the Service except as expressly permitted by Automox in writing, or (c) use the Service in excess of the usage limitations described in the applicable Order or use any feature or functionality of the Service that is not specified in applicable Order (except on a trial basis as permitted by Automox) (collectively, the “Usage Limitations”). In the event Customer’s use of the Service exceeds any Usage Limitation, Automox may, in addition to any other rights it may have, (i) suspend Customer’s access to the Service; or (ii) on ten (10) days’ prior notice to Customer, terminate Customer’s account.
2.4 Open Source Software. Certain aspects of Automox Agents may include software that is subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement, and instead, is licensed to Customer under the terms of the applicable Open Source Software license. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the licenses applicable to the Open Source Software. If required by any license for particular Open Source Software, Automox will make such Open Source Software, and Automox’s modifications to that Open Source Software, if any, available by written request at the notice address specified herein.
2.5 Data Security. Automox will implement and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data.
2.6 Usage Data. Customer acknowledges and agrees that Automox may internally use Usage Data for its lawful business purposes and may disclose Usage Data that is aggregated and/or anonymized such that it does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any User).
3. FEES; PAYMENTS.
3.1 Fees. Customer shall pay Automox all fees set forth in the applicable Order or described in this Agreement (the “Service Fees”) in accordance with the applicable Order or this Section 3 (Fees; Payments). All Service Fees will be paid in U.S. Dollars. Customer will make all payments of the Service Fees to Automox without reduction for any fees or charges applicable to the Customer’s method of payment (e.g., wire fees). Automox may charge Customer (and Customer will pay Automox) for the amount of any such fees to the extent Customer’s payment is made net of any such fees.
3.2 Fee Calculation. The Service Fees for each calendar month will be calculated based on the maximum number of Endpoints that access or are authorized to access the Service for 60 minutes or more (on an individual Endpoints basis) at any time during that month (the “High-Water Mark” of Endpoints). Customer will owe Service Fees based on that High-Water Mark number of Endpoints for each subsequent month, until there is a month in which a higher High-Water Mark number is set, in which case such higher number will apply for each subsequent month (until a higher High-Water Mark is set). Automox may invoice Service Fees for a full month for every full or partial calendar month, based on the High-Water Mark for the month.
3.3 Committed Period Subscriptions. If the Order provides that Customer will pay for a committed period, such as a set number of months or years, all Service Fees will be invoiced in advance at the billing frequency specified in the Order (which, if not specified, will be a one-time payment for all of the Services Fees for the committed period) based on the number of Endpoints specified in the Order (the “Committed Quantity” of Endpoints). If the High-Water Mark for Customer exceeds the Committed Quantity in any month: (a) Automox may invoice, and Customer will pay, the difference between the Committed Quantity and the High-Water Mark, based on the Service Fees calculation described in Section 3.2 (Fee Calculation), for such month (the “Monthly True-Up” of Service Fees), and (b) the Committed Quantity for subsequent months will be that new High-Water Mark and will be billed in advance of each month.
3.4 Monthly Subscriptions. For monthly subscriptions, all Service Fees for the Committed Quantity will be invoiced on a monthly basis in advance and any Monthly True-Up for the month will be invoiced in arrears.
3.5 Payment Card Authorization. Unless otherwise stated in the applicable Order, Automox will charge (and Customer hereby authorizes Automox to charge) Customer’s provided payment card for (a) all Service Fees as of the date the sales receipt is generated; (b) all Service Fees for any billing frequency otherwise established in the Order; (c) any Committed Quantity as of the date the applicable invoice is generated; (d) the amount of annual renewal subscriptions for Committed Fees, at the time of such renewal; and (e) the amount of any past due Service Fees, plus late charges, if any, due to Automox under this Agreement. Automox may require a payment card to cover Monthly True-Ups.
3.6 Payments; Adjustments; Interest; and Taxes. All fees are due to Automox within thirty (30) days after the date of the invoice therefor (except as provided in Section 3.5 (Payment Card Authorization)). Claims for adjustment of any invoiced or charged Service Fees must be submitted by Customer within thirty (30) days of the date of the sales receipt and/or invoice (as applicable). Claims must be submitted by Customer electronically to Automox at email@example.com. If any amounts are disputed in good faith, the remaining amounts will be paid when due and payment of such undisputed amounts may not be withheld for any reason. Any undisputed amount that is not paid when due will accrue a late fee of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In addition, Customer will reimburse Automox for all costs (including reasonable attorney and collection agency fees) associated with collecting delinquent or dishonored payments. All Service 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 net income. If Customer is legally obligated to make any deduction or withholding from any Service Fees payment under this Agreement, it shall also pay whatever additional amount is necessary to ensure that Automox receives the full amount otherwise receivable had there been no deduction or withholding obligation. All Service Fees due under this Agreement are non-refundable, except as expressly set forth in Section 6.5 (Effect of Termination) or 9.1 (Claims Against Customer).
3.7 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. 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, or (iii) terminate or suspend Customer’s subscription.
4. CUSTOMER RESPONSIBILITIES.
4.1 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) except as expressly permitted in an Order, rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, create an undue burden on, alter, translate, or modify the Service, any part thereof, or the networks or services connected to the Service (through scripts or otherwise); (d) perform penetration tests or any other security tests on the Service, create derivative works of the Service, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Service that would reveal any source code, trade secrets, know-how or other proprietary information; (e) 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; (f) without Automox’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests, or queries, or to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (h) cover or obscure any page or part of the Service by any means. Except as expressly set forth in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Service, or any part thereof. In the event (i) that Customer breaches subsection “(c)”, “(d)”, “(e)”, or “(f)” (above) or (ii) of a threat to the security or technical integrity of the Service, Automox may upon notice to Customer (1) suspend Customer’s access to the Service or (2) convert Customer’s Service to Free Tier, in each case until such time as Automox determines that Customer is in compliance with the terms of this Agreement and/or that such threat has been addressed. Customer represents and warrants that it has all rights necessary for Customer’s and Automox’s use of the Customer Data as contemplated by this Agreement.
4.2 Availability. Customer is responsible for obtaining all services and technologies necessary to access the Service and Customer understands that such access may involve third party fees and costs (such as Internet service provider or airtime charges). Customer is responsible for all such fees and costs.
4.3 Usernames and Passwords. Customer is solely responsible for maintaining the confidentiality of all Customer usernames and passwords. Customer agrees (a) not to allow a third party to use its account, usernames, or passwords at any time, except as expressly permitted under this Agreement; and (b) to notify Automox promptly of any actual or reasonably suspected unauthorized use of its account, usernames, or passwords, or any other breach or suspected breach of this Agreement of which it becomes aware. Automox reserves the right to terminate any username that Automox reasonably determines may have been used by an unauthorized third party or an individual or entity other than the User to whom such username and password was originally assigned.
4.4 Users; Sub-Accounts. Customer is responsible for all acts or omissions of its Users, and for all activities that occur under its account, including all sub-accounts created by or for Customer, including specifically Customer’s affiliates. Customer may create sub-accounts as permitted by Automox, but for purposes of determining Service Fees, the High-Water Mark, or any Committed Quantity, the total number of Endpoints across any one Customer business entity, including all affiliates of such Customer business entity, may be (as determined by Automox in its discretion unless otherwise agreed in writing) summed across all such sub-accounts.
4.5 Administrators. Customer and each Administrator authorizes Automox to rely upon communications from the Administrator with respect to the Service, including, but not limited to, instructions to delete or add Users, Endpoints and/or accounts as contemplated under Section 4.4 (Users; Sub-Accounts) above. If an Administrator executes and delivers this Agreement on Customer’s behalf or if Customer enables an Administrator to use the Service on its behalf, Automox may assume that the execution and delivery of this Agreement or such enablement means that the Administrator has authority to act on Customer’s behalf with respect to the Service without further notice from Customer. Automox may, but is not obligated to, confirm any instructions received from an Administrator against Automox’s internal processes and/or with Customer, including employees of Customer who have administration rights for the Service, prior to taking action based on instructions from an Administrator. Automox will have no liability to Customer or any other person for any actions Automox takes in reasonable reliance on communications received from an Administrator.
4.6 Administrator Use. Notwithstanding the restriction in Section 2.3(a), to the extent an Administrator enters into this Agreement on behalf of Customer, such Administrator may use the Service (including any Automox Agent or Documentation) on behalf of such Customer, provided that (a) the Administrator has the requisite authority to bind Customer to this Agreement and act as Customer’s agent in its performance hereunder, and (b) the Administrator names the Customer as the “Customer” on the Cover Page and provides Automox with all Customer information that is necessary for Automox to provide access to the Service. Each Administrator represents and warrants that they have the requisite authorization from Customer to enable Automox to rely upon communications from the Administrator with respect to the Service and Customer.
5.1 General. Automox and its suppliers and licensors expressly disclaim all representations, warranties, or conditions of any kind, express or implied, including without limitation all representations, warranties, or conditions of title, non-infringement, merchantability, and fitness for a particular purpose, in each case arising from or related to this agreement, the service or the Automox Agents.
5.2 Third-Party Patches. The Service facilitates the installation of software patches made available 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.
6. TERM AND TERMINATION.
6.1 Term. Unless otherwise expressly set forth in the Order, this Agreement shall commence on the Effective Date and continue until the earlier of (a) the date this Agreement is terminated as set forth herein, and (b) all Orders entered into under this Agreement expire or are terminated as set forth herein and therein (“Term”).
6.2 Order Renewal. Following the initial term under any Order (the “Initial Order Term”), such Order will automatically renew for additional periods equal to the duration of the Initial Order Term (each, a “Renewal Order Term” and together with the Initial Order Term, each and “Order Term”), unless a party has given the other party written notice of its intent to not renew such Order at least 30 days’ prior to the end of the then-current Order Term. Though Customer may renew an Order for a longer duration than the then-current Order Term (e.g., a monthly subscription may be renewed as an annual subscription), Customer may not renew any Order for a lesser duration than the then-current Order Term (e.g. an annual subscription may not be renewed as a monthly subscription) unless Automox and Customer enter into a new Order for such lesser duration Order Term. Each renewal will be for Service Fees reflecting the latest High-Water Mark.
6.3 Termination. 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 thirty (30) days following the breaching party’s receipt of written notice of the breach. Either party may terminate this Agreement for any reason by providing the other party at least thirty (30) days prior written notice.
6.4 Non-Payment. In the event of any failure by Customer to make payments of any applicable Service Fees due under this Agreement, Automox may, upon ten (10) days written notice (including email) to Customer, (a) suspend Customer’s access to the Service, (b) convert Customer’s Service to Free Tier, or (c) terminate this Agreement. Customer is responsible for providing Automox accurate and current contact information for invoices and related communications.
6.5 Effect of Termination.
(a) Upon any termination or expiration of this Agreement: (i) Customer shall promptly pay Automox all amounts owed under this Agreement without regard to whether any invoices had or had not been issued, (ii) all outstanding Orders shall be immediately terminated, and (iii) Automox may terminate Customer’s access to the Service. Automox may, in its discretion, treat Customer as a Free Tier customer under the terms of Automox’s then-current terms of service agreement.
(b) Customer may request deletion of its Customer Data following any termination or expiration of this Agreement by emailing Automox and requesting deletion of Customer Data and Automox will delete the Customer Data within a reasonable time following its receipt of such request. Proper authentication, including Customer’s unique customer identification information, will be required prior to deletion of Customer Data.
(c) Customer will not have any rights in or to the Service after any termination or expiration of this Agreement. Sections 1 (Definitions), 2.7 (Usage Data), 3 (Fees; Payments), 4.1 (Limitations), 5 (Disclaimer), 6.5 (Effect of Termination), and 7 through 11 shall survive any termination or expiration of this Agreement.
7.1 Ownership of Service. As between Automox and Customer, Automox owns all right, title and interest in and to the Service and Documentation, including any and all intellectual property and other proprietary rights therein. Customer acknowledges and agrees that (a) it does not acquire any rights, express or implied in or to the Service, except as specifically set forth in this Agreement; and (b) any configuration or deployment of the Service shall not affect or diminish Automox’s rights, title, and interest in and to the Service. All brand, product, and service names and marks used in the Service which identify Automox are proprietary names and marks of Automox. All brand, product, and service names and marks used in the Service which identify third parties or their products or services are proprietary names and marks of such third parties. Nothing in the Service shall be deemed to confer on any person any license or right with respect to any such name or mark. Customer may not publish, distribute, extract, reuse, or reproduce any such content in any material form other than in accordance with this Agreement. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Automox or its suppliers on the Service or Documentation.
7.2 Ownership of Customer Data. As between Automox and Customer, Customer Data shall at all times remain the property of Customer or its licensors. Automox shall have no rights in Customer Data other than the limited right to use such Customer Data as required for Automox to perform the Service for Customer in accordance with this Agreement.
8. CONFIDENTIAL INFORMATION.
8.1 Definition. “Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Service shall be considered Automox’s Confidential Information, notwithstanding any failure to mark or identify it as such. Customer Data shall be considered Customer’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. Notwithstanding the foregoing, each party may disclose the terms and conditions of this Agreement: (a) to consultants, accountants, banks, investors, and actual or potential financing sources and their advisors; (b) in connection with a merger or acquisition or proposed merger or acquisition, or the like; or (c) in connection with the requirements of a securities filing.
8.2 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing 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, independent contractors, or agents 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.
8.3 Exceptions. Confidential Information does not include information that: (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 on the Automox website 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 (if permitted by law) the Receiving Party promptly 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, Automox may use Customer’s name and logo in Automox’s marketing materials that include a customer list.
8.4 Feedback. “Feedback” means any and all Customer or User suggestions regarding new features, functionality, or performance for the Service, including suggestions submitted through the Automox website. Customer hereby grants to Automox a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use such Feedback for lawful purposes, including, without limitation the development or improvement of features or functionality for the Service. Automox will not identify Customer as the source of any such Feedback.
9.1 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 Service infringes any U.S. intellectual property rights 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) awarded in 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, (provided that Automox will not enter into any settlement of any claim, suit, or action that does not contain a full release of Customer’s liability without Customer’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); 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 9.1 or otherwise with respect to any infringement claim based upon: (i) any use of the Service not in accordance with this Agreement; (ii) any use of the Service 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; (iii) any modification of the Service by any person other than Automox or its authorized agents or subcontractors; or (iv) any Third-Party Patches. If use of the Service is, or in Automox’s opinion is likely to become, enjoined, or if use of the Service infringes or could be found to infringe the intellectual property rights of any third party, then Automox may at its discretion either: (1) modify the Service so that it is non-infringing; (2) replace the portion of the Service that infringes or allegedly infringes with non-infringing components that is functionally equivalent; (3) obtain a license that shall enable Customer to continue use of the Service as provided hereunder; or, if none of the foregoing are commercially reasonable for Automox, (4) terminate this Agreement and refund any prepaid but unused Service Fees. THIS SECTION 9.1 STATES AUTOMOX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.2 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 (a) any Customer Data, (b) any User acts or omissions, (c) any failure by Customer to meet its obligations under Section 4 (Customer Responsibilities), or (d) any Third-Party Patch that Customer chooses to receive via the Service (each, a “Automox Claim”), and Customer shall indemnify and hold Automox harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in 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: (i) promptly notifying Customer in writing of such Automox Claim; (ii) giving Customer sole control of the defense thereof and any related settlement negotiations (provided Customer will not enter into any settlement of any claim, suit, or action that does not contain a full release of Automox’s liability without Automox’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (iii) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this Section 9.2 or otherwise with respect to any claim to the extent based upon the gross negligence or intentional misconduct of Automox. In addition, the Administrator will indemnify, defend, and hold Automox harmless for any claim, suit, or action against Automox brought by a third party to the extent that such claim, suit, or action arises from or relates to such Administrator lacking the requisite authority to bind Customer to this Agreement or act as Customer’s agent in its performance hereunder.
10. LIMITATIONS ON LIABILITY. EXCEPT WITH RESPECT TO ANY BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION), OR FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNITY), OR FOR CUSTOMER’S BREACH OF SECTIONS 2.2 (ACCESS; LIMITED LICENSE), 2.3 (USAGE LIMITATIONS), OR 4.1 (LIMITATIONS): (A) IN NO EVENT SHALL EITHER PARTY 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 A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT SHALL EXCEED DAMAGES IN EXCESS OF THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO AUTOMOX DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS FIRST GIVING RISE TO ANY SUCH LIABILITY.
11. GENERAL PROVISIONS.
11.1 Governing Law. This Agreement is governed by 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, subject to Section 11.2 (Arbitration), any cause of action arising under this Agreement shall be brought in a court in Denver County, Colorado.
11.2 Arbitration Agreement. Please read this “Arbitration Agreement” in this Section 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 pursue 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 or customer.
(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.
11.3 Compliance with Laws. Each party shall comply with all laws, rules and regulations applicable to such party while performing under this Agreement.
11.4 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 constitute an ongoing or future waiver of such breach or provision.
11.5 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.
11.6 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.
11.7 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, which shall not require the other party’s consent. 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.
11.8 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
11.9 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified in the Cover Section, or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by email or telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
11.10 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.
11.11 Additional Terms. Automox may offer additional services through the Automox website (including but not limited to the Automox Community Forum) that are subject to additional terms and conditions. In the event that Customer or any of Customer’s users access or use such additional services, Customer hereby agrees to be bound by the separate terms and conditions therefor.
11.12 Customer Communication. Customer understands and agrees that by signing up for the Automox service that email communication is required. Automox's product requires periodic email communication including password resets, notifications, and other critical emails. Further, Customer understands and agrees that without email communication that the customer will not be able to receive customer support, maintenance notifications, upgrade announcements, and other critical information to operate the Automox solution. As a result, by signing up for the Automox service, Customer is consenting to our email communications with administrative contacts supplied by Customer.
11.13 Government End Users. The Service, Automox Agents and Documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service, Automox Agents and Documentation with only those rights set forth herein.
11.14 Entire Agreement. This Agreement, including any exhibits attached hereto, and all applicable Orders, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. All modifications or amendments to this Agreement must be in writing and signed by the authorized representatives of both parties. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Order shall govern solely with respect to the provisions of this Agreement specifically identified in the Order as intended to be superseded. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
Last Updated: October 24, 2019