This Agreement governs the procurement of ITORIX Products as set forth in the Order Schedule which references this Agreement. This Agreement may govern multiple Order Schedules between ITORIX, Inc. and its Affiliates (“ITORIX”) and the person or entity agreeing to these terms and its Affiliates (“Customer”). This Agreement is effective as of the date of the last signature affixed on this agreement.
IF CUSTOMER IS AGREEING TO THESE TERMS AND POLICIES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THESE TERMS AND POLICIES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY THEN CUSTOMER MUST NOT USE OR ACCESS THE ITORIX PRODUCTS.
"Affiliate" means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where "control" is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means applicable Order Schedules and Supplements, this Master Subscription Agreement, URL Terms, and all exhibits, addenda, and amendments which are properly attached or incorporated by reference.
“Authorized User” means an employee or contractor employed or engaged by Customer and whom Customer authorizes to use the Products for the benefit of Customer.
“Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. Confidential Information does not include Feedback or Usage Analytics.
“Customer Data” means any and all electronic data or information, including Customer Personal Data and Account Data which is transferred by Customer into the Products, or otherwise stored, created, processed or modified pursuant to the Agreement.
“Customer Personal Data” means any Customer Data that is defined as “Personal Data” under applicable EU Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to ITORIX or accessed, stored or otherwise processed by ITORIX in connection with the Products.
“Documentation” means the Product specific materials available at https://developer.apiwiz.io/docs.
“Effective Date” means the earlier of the date the Agreement is accepted by Customer or the date an Order Schedule is fully executed.
“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Products could lead to death, personal injury, or environmental damage.
“Order Schedule” means an order, either direct or indirect, registration confirmation or other fully executed document that incorporates this Agreement.
“Product(s)” means SaaS, Software, Support, and Services.
“Product Term” means the time period or other licensing parameters specified in Customer’s Order Schedule or applicable Supplement and modified by any applicable extension or early termination.
“SaaS” means the ITORIX cloud services (e.g., software as a service offerings) made available to Customer as specified in an Order Schedule, including error corrections, modifications and updates to such items. The term “SaaS” does not include Services.
“Services” means training, consulting or other services (other than Support) as specified in Section 10 and further identified Order Schedule.
“Software” means the ITORIX software made available to Customer for download as specified in an Order Schedule, including error corrections, modifications and updates to such items, and including the Documentation.
“Software” does not include, and ITORIX does not warrant or support, unless otherwise provided in the applicable Supplement, software obtained from any source other than ITORIX or software that is provided by ITORIX under an open-source license.
“Support” has the standard support services for each of the Product set forth in Section 11
2.1 License Grant. Subject to ongoing compliance with this Agreement, ITORIX grants Customer a non-exclusive, non-transferable, non-sublicensable, terminable license to access, use and install (only for the portions of the Platform that are available for download by ITORIX) the Products during any applicable Product Term. Customer’s rights to use the Products are limited to those expressly set forth in this Agreement, including any license parameters specified in the Order Schedule. ITORIX and its licensors retain all rights, title and interest in and to the Products and all related intellectual property rights, including without limitation any modifications, updates, or other add-ons
2.2 Restrictions. Except as explicitly permitted under this Agreement, Customer shall use the Platform solely for its internal business purposes, in compliance with applicable law, and shall not do any of the following to the Products: (1) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code; (2) assign, sublicense, transfer, lease, rent or otherwise distribute or make available to any third party; (3) use for High Risk Activities or otherwise contrary to the Documentation; (4) use for any unlawful or unauthorized purpose or in violation of any applicable law or regulation, including in any manner which would infringe on the intellectual property or privacy rights of a third party; (5) create, deliver training on, improve or offer a substantially similar product or service; (6) use the Platform, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without ITORIX’s prior written consent; or (7) use the Products on behalf of or for the benefit of any entity or person who is legally prohibited from using the Products.
2.3 No License Rights Granted. Notwithstanding the grant in Sections 2.1, Customer and its Affiliates acknowledge that the Platform includes or may include some software components that are offered to Customer and its Affiliates under “free software” or “open source” licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and/or have access to the source code for such components (“Free Software Licenses”). ITORIX shall provide a list of open source components for a particular version of the Software upon Customer’s request. To the extent stated in any applicable Free Software License, the terms of such licenses will apply in lieu of the terms of Sections 2.1 and 2.2 of this Agreement. To the extent the terms of any Free Software License prohibit any of the restrictions in this Agreement with respect to such components, such restrictions will not apply to such components.
2.3 Authorized Use Customer is responsible and liable for (1) all activity that occurs on Customer’s account, and (2) all Authorized Users' acts and omissions in connection with the Products and compliance with the Agreement. Customer should promptly contact ITORIX in writing if Customer believes that the account credentials of Customer or its Authorized Users’ have been compromised or if there has been any unauthorized use of the Products. ITORIX reserves the right to reset or terminate any account login credentials if there has been any unauthorized access or activity on a Customer's account.
2.4 Feedback and Usage Analytics. Customer may provide feedback to ITORIX about the Products (e.g. technical support input, suggestions, or enhancement requests) (“Feedback”) and generate usage analytics, including but not limited to aggregated technical data and metadata from the Products (“Usage Analytics”). ITORIX may develop, modify, and improve the Products based on Customer’s Feedback and Usage Analytics without obligation to Customer, and Customer irrevocably assigns to ITORIX all right, title, and interest in that Feedback and Usage Analytics.
2.5 No-Fee License. From time to time, ITORIX may make certain Products available for trial, proof of concept, beta testing, demo, or other similar purposes. Products acquired for such purposes are provided on an “as is” and “as available” basis and without any warranty or indemnity and may be used solely for non-production purposes (“No-Fee License”), without the right to Support. ITORIX may discontinue or terminate such offerings at any time in its sole discretion. ITORIX shall not be liable for any damages arising out of or in connection with a No-Fee License.
3.1 Customer Data. As between ITORIX and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. In connection with its provision of certain Products, ITORIX may access, process, copy, archive, or store Customer Data. Customer hereby grants ITORIX the necessary rights for such access to the Customer Data.
3.2 Account Data. In order to use the Products, Customer may need to complete a registration process and provide contact information such as an email address, credentials and other account billing information (“Account Data”). Customer must provide complete and accurate Account Data during the registration process and must keep Customer’s Account Data up-to-date. Customer is prohibited from misrepresenting Customer’s identity or affiliation with any company or other entity. By providing Account Data, Customer hereby consents that it and any Authorized Users on its account may receive email or other communications from ITORIX. Such communications may include communications regarding Customer’s use of the Products and/or commercial content relating to other ITORIX Products. If you do not wish to receive such communications, a Customer or an Authorized User may opt-out by notifying ITORIX at info@ITORIX.com. In connection with its provision of the Products, including for billing, usage reporting, and account provisioning purposes, ITORIX may access, process, copy, archive, store, or otherwise modify Customer’s Account Data. Customer hereby grants ITORIX the necessary rights for such access and modifications to the Account Data. ITORIX may use aggregated and de-identified versions of the Account Data for its internal business purposes.
4.1 Fees. Customer will pay all fees (the “Fees”) as specified in the Order Schedule and any applicable Taxes. If the due date is not otherwise specified in the Order Schedule, all Fees are due 30 days from the invoice date. All Fees are non-refundable. Unless otherwise specified in the Order Schedule, all Fees are in U.S. dollars and all dates are based on the location of the choice of law. If Customer requires a purchase order to complete its purchase, then the Products will not be provided until Customer delivers a conforming purchase order unless agreed otherwise in writing.
4.2 Taxes. Customer is responsible for any duties, customs fees, or taxes (other than ITORIX’s income tax) associated with the purchase of the Products provided by ITORIX, (including any related penalties or interest) (“Taxes”), and shall pay the listed fees without deduction for Taxes. If Customer is required by applicable law to withhold any amount from any payments specified in the Order Schedule, then Customer will pay ITORIX the listed fees as if no withholding were required, and shall remit the withholding to the appropriate governmental authorities on behalf of ITORIX, with a copy of the tax receipt or certificate forwarded to ITORIX.
4.3 Delinquencies. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If Customer utilizes a credit card to pay for the Product(s) and if a Customer's credit card expires or is cancelled or the charge is otherwise denied, ITORIX will attempt to reprocess the charges. Customer is responsible for updating its credit card or bank information to ensure payment can be made.
4.4 Disputes. If Customer believes that ITORIX has incorrectly billed Customer, Customer must contact ITORIX in writing within 30 days of the date billed for the charge in dispute, specifying the error. To the fullest extent permitted by applicable law, Customer waives any and all claims relating to the Fees unless (i) Customer has properly notified ITORIX of the dispute, and (ii) the dispute is made in good faith. The foregoing does not waive any of Customer’s rights with its credit card issuer or bank, which are subject to Customer’s agreement with such entity. Any Fee adjustments, credits or refunds are at the discretion of ITORIX.
5.1 Agreement Term. This Agreement will begin on the Effective Date and continue until the later of the following: (1) the expiration or completion of all Product Terms; or (2) the date on which the Agreement is terminated as specified herein.
5.2 Supplement Term. A Supplement will begin on the earlier of (1) the date Customer begins to use the applicable Product or (2) the date Customer executes an Order Schedule for the applicable Product and will continue until the expiration of the Product Term.
5.3 Termination for Breach.
5.3.1 Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure that breach within 30 days after receipt of written notice.
5.3.2 In the event a party learns the other party is subject to an insolvency event (e.g. failing to pay its obligations as they arise, being declared bankrupt, or commencing proceedings under any law providing debt relief to the party), the party that is not the subject of the insolvency event may terminate the Agreement immediately upon notice to the party that is the subject of the insolvency event.
5.4 Suspension. ITORIX may, without limitation to any other rights or remedies, suspend this Agreement and Customer’s access to the Product without prior notice if: Customer’s use of the Products is fraudulent, breaches applicable laws or regulations, poses a security risk, or exposes ITORIX or its partners to third party liability.
5.5 Effect of Termination or Expiration. If the Agreement expires or is terminated, then: (1) the rights granted by one party to the other will immediately cease; (2) all Fees owed by Customer are immediately due upon receipt of the final invoice; (3) Customer will cease any and all access to and delete the Products; and (4) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
6.1 Confidentiality Obligation. During the term of this Agreement, both parties agree that: (1) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (2) each will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (3) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. ITORIX may use Confidential Information and Customer Data for internal business purposes only, including but not limited to providing Support, and improving, testing and providing any ITORIX Products.
6.2 Exclusions. This Agreement imposes no obligation with respect to information that: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; or (4) is independently developed without reference to the Confidential Information of the disclosing party.
6.3 Publicity. ITORIX may publicly identify Customer as a customer, including Customer company name and logo. Customer may revoke the rights granted in this Section at any time with prior notice.
7.1 Mutual Warranties.Each party represents and warrants that: (i) it has the legal power to enter into and perform under this Agreement; (ii) its signatory to this Agreement is 18 years of age or older; and (iii) it will comply with all laws, rules and regulations applicable to its performance hereunder (in the case of ITORIX) or applicable to its use of the Products (in the case of Customer).
7.2 Services and Support Warranty. ITORIX warrants that it will perform any Services and Support with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. As Customer’s sole and exclusive remedy for breach of this warranty, ITORIX will promptly attempt to re-perform the applicable Services or Support within 30 days or such longer period as agreed to by the parties in writing, or at ITORIX’s option refund any Fees paid for the affected Service(s) or Support.
7.3 SaaS and Software Warranty. ITORIX warrants that, during the Product Term, the SaaS and Software will perform in material conformance with its published Documentation. As Customer’s sole and exclusive remedy for breach of this warranty, ITORIX will remedy such issues as provided in the applicable Support policy, or at ITORIX’s option and provided Customer’s stopped use of the Product, refund the unused prorated portion of any Fees paid for the affected Product.
7.4 Harmful Code. ITORIX will use commercially reasonable efforts and commercially available technology to scan the SaaS and Software made available to Customer for, and to remove from the then-current-version of the affected Product any computer “viruses,” “worms” and other malicious code.
7.5 Customer Data Warranty. Customer warrants that all collection, transfer, and use of any Customer Data in connection with the Products will comply with all applicable laws, including but not limited to obtaining relevant consents, and will not violate the intellectual property or privacy rights of any third party.
7.6 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER ITORIX NOR ITS SUPPLIERS PROVIDES ANY OTHER WARRANTIES REGARDING THE PRODUCTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ITORIX OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT. THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCTS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
8.1 ITORIX Indemnity. ITORIX shall defend or settle at its sole expense and pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by ITORIX) for third party claims alleging that the Software and SaaS as delivered by ITORIX directly infringes or misappropriates any patent, copyright, or trade secret of a third party.
8.2 Customer Indemnity. Customer shall defend or settle at its sole expense and shall pay all damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Customer) for third party claims arising out of: (i) Customer’s violation of Sections 1 and 6; and (ii) any violation of third party rights (including without limitation any intellectual property rights or privacy rights) arising out of or relating to the Customer Data.
8.3 Conditions. The indemnification obligations under this article are subject to the indemnified party (i) promptly giving written notice of the claim to the indemnifying party, (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the claim, (iii) providing the indemnifying party with all reasonable assistance required to effectively defend the claim.
8.4 Injunctions. If Customer’s rights to use the Products are, or in ITORIX’s opinion could be, subject to an injunction for an indemnified claim, then ITORIX may, at its sole option and expense: (1) procure for Customer the right to continue using the Product according to the terms of this Agreement, (2) modify the Product such that it operates with materially equivalent functionality without infringing or misappropriation, or (3) terminate the Order Schedule and refund the unused prorated portion of any Fees paid for the Product.
8.5 Exclusions. The indemnity provided by ITORIX under this Agreement does not extend to claims arising from or relating to: (1) use of the Products under a No-Fee License; (2) modifications to the Products not provided by or approved in writing by ITORIX; (3) use of the Products in combination with any data, software, or hardware not provided by ITORIX to the extent the alleged infringement would not have occurred without the combination; (4) Third Party Software; or (5) allegedly infringing activities that continue after ITORIX has informed Customer in writing of and made available to Customer at no additional charge a substantially similar version of the Product that would have avoided the alleged infringement.
8.6 Remedy. This section states Customer’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled “Limitation of Liability.”
To the fullest extent permitted by applicable law, in no event shall ITORIX or its suppliers be liable for damages other than direct damages, including the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in statute, contract, tort, strict liability, indemnity or otherwise, even if advised of the possibility of such damages.
To the fullest extent permitted by applicable law, in no event shall the total liability of ITORIX to Customer under this Agreement exceed the total amounts payable or paid by Customer to ITORIX for the 12 months prior to the date the claim arises. The liability limitations in this paragraph (and otherwise in the Agreement) do not limit or exclude damages for bodily injury or death or other damages that under applicable law cannot lawfully be limited or excluded.
10.1 Assignment. The Agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Schedules), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates. Any such assignment shall be effective upon payment of all amounts then due. ITORIX shall be entitled to subcontract any of its obligations under the Agreement, in which case, ITORIX shall remain responsible for any breach of the Agreement which is as a result of the acts or omissions of a subcontractor.
10.3 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The URL Terms are hereby incorporated by this reference. After the Effective Date, ITORIX may provide Customer with an updated URL in place of any URL in this Agreement. Customer agrees that its purchase of a Product is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ITORIX, including any roadmaps or target release dates, with respect to future functionality or features.
10.4 Export Controls. Customer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of the Products. In particular, but without limitation, the Products may not, in violation of any laws, be exported or re-exported: (1) into any U.S. embargoed country; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
10.5 Federal Agency Users. The SaaS and Software were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.
10.6 Force Majeure. Neither party will be liable for failure or delay in its performance under this Agreement to the extent caused by circumstances beyond its reasonable control. ITORIX reserves the right to suspend an Order Schedule or Services to comply with laws.
10.7 Governing Law. This Agreement is construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and each party hereby consents to the jurisdiction of the federal or state courts of Santa Clara County, California, USA. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this Agreement.
10.8 Independent Contractors. This Agreement does not create an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
10.9 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
10.10 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
10.11 Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
10.12 Survival. Provisions of the Agreement related to the following subjects will survive the termination or expiration of the Agreement: Payment, Restrictions, Account Data, Customer Data, Effect of Termination, Confidentiality, Limitation of Liability, and Miscellaneous.
10.13 Updates. Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. ITORIX may make changes to terms located at a URL referenced in this Agreement (collectively, the “URL Terms”) from time to time. ITORIX will post the amended terms and will update the “Last Updated Date” (or similar designation) at the top. Customer’s continued access to or use of the Products after ITORIX has provided Customer with such notice of a change, constitutes Customer’s acceptance of the modified terms. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify ITORIX within 30 days of the applicable Last Updated Date. If Customer notifies ITORIX as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Product Term (or, in the case of Services, the completion of the applicable Services). If the Product Term is renewed, it will do so under the updated URL Terms.
ITORIX will provide Professional Services if and to the extent stated in an Order or a mutually executed statement of work that specifically incorporates this Agreement by reference.
ITORIX shall provide support provided Customer is current on payment of all Fees. Support shall be provided in accordance with the terms and conditions described in ITORIX’ technical support policy, a copy of which is available at https://www.apiwiz.io/service-level-agreement. The service levels (“SLA”) shall also be provided Customer is current on payment of all Fees.