This is how we together outline our responsibilities towards each other to ensure a timely and successful implementation of the awareX subscription service. 

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Agreement

“Acceptance” means the products and services have passed Customers user acceptance tests or been put into commercial service or hosting start date plus 30 days whichever is the sooner.

“Affiliate” in relation to a Party, means any other entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; and "control," for the purposes of this definition, means possession, direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Backend Connections” means the access to the systems holding the Customer Data.

“Content” shall mean data, information, files, software, scripts, images, graphics, audio, video, text, and any other object or information, transmitted to or from the AwareX Server by Customer or its End User callers through use of the awareX Subscription Service.

“Customer Data” means the electronic data and information (i) collected by the Customer and uploaded to the Software and (ii) collected, processed and generated by the Software from the Customer’s use of the Software, excluding the Software application and the Software’s dependent or required software.

“Documentation” means any documentation or technical specifications and user instructions relating to the use and operation of AwareX Software in their most current form. Documentation provided will be in English.

“End User” shall mean third party users, such as Customer’s customers, of the awareX Subscription Service.

“Fees” means the fees payable by Customer as set forth in an Exhibit A and/or a Purchase Order Form, including, as applicable, Set-up Fees, Base RTU Usage Fees and Incremental RTU Usage Fees, and also as defined in section 4 of this agreement.

“Hosting Start Date” means the first day on which the awareX Subscription Service is available for first production use by Customer, regardless of platform (e.g., Android or iOS) or whether or not the customer actually puts the Product into production.

“Initial Term” means 12 months following the Effective Date.

“MAU” means Monthly Active User which is defined as the count of active devices in any specific calendar month which access data using the awareX subscription service as reported by the AwareX Engagement & Analytics platform.

“Purchase Order / Order Form” means an ordering document signed by Customer specifying the Products and Services to be provided hereunder.

“Personal Information” means information provided to AwareX by or at the direction of Customer, or to which access was provided to AwareX by or at the direction of Customer, in the course of AwareX's performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, passwords or PINs and other personal identifiers).

“Product and Services” means offerings AwareX makes available to the Customer for purchase as defined in an Exhibit A or in an Order Form.

“RTU” means the right to use the awareX subscription service by the Customer to provide services to its own end user customers pursuant to the terms of this agreement.

“Server” shall mean servers and infrastructure that are used for the provision of the awareX Subscription Service, whether such servers and infrastructure are located at an AwareX hosting facility or in a public cloud.

“Software” means the software in machine readable object code form (including all updates and upgrades thereto) comprising the awareX Subscription Service and hosted by AwareX, access to which is provided pursuant to this Agreement.

“System” shall mean web pages, software applications, operations and business support systems, code, information and data owned or controlled by the Customer for interacting with the awareX Subscription Service, including software applications designed by Customer or its designees using the development software made available by AwareX or other sources.

 “Usage Fees” shall mean the Minimum RTU Usage Fees plus any Incremental RTU Usage Fees.

awareX Subscription Service. Subject to the terms and conditions of this Agreement and during the Term, AwareX delivers “software as a service” and hereby grants to Customer a non-exclusive, revocable, non-transferable right to access and use the awareX Subscription Service solely for internal business operations related to customer service, support and engagement by the Customer and its Affiliates.The foregoing access and use grant does not constitute a sale and does not convey any rights of ownership in or to the Software, Documentation or any related materials to Customer or any third party. The right of access and use is only granted for the duration of the term set forth in the applicable Order Form. 

For all deliverables provided by AwareX to Customer under this agreement:   

  1. Customer agrees to cooperate reasonably and in good faith with AwareX by (i) designating a primary point of contact for AwareX (ii) allocating sufficient resources; (iii) timely performing the tasks reasonably necessary to enable AwareX to perform its obligations; (iv) ensuring the timely delivery of any material and other obligations required; (v) ensuring the timely response to any inquiries related to the deliverables; and (vi) completing accurately and in a timely manner all information, data requests and feedback as reasonably required; and
  2. AwareX warrants that the deliverables will be performed in a professional and workmanlike manner in accordance with accepted industry standards. For any breach of the above warranty, the Customer’s exclusive remedy and entire liability will be that AwareX shall re-perform the applicable deliverable provided Customer notifies AwareX in writing of any such breach within thirty (30) days after the performance of any nonconforming services.
  3. If any unmet assumption, responsibility or failure by Customer to meet its obligations as set forth in this Section of this Agreement delays or impairs the performance of the services, AwareX will be entitled to additional time for performance of the services, and to charge additional amounts in respect of incremental effort or expense incurred.
  4. In addition to the limitation of liabilities set out in section 15, in no event will AwareX’s liability or the Customer’s remedy for any work performed exceed the value of the Estimated Fees or actual Fees paid, whichever is less.

Restrictions. Customer shall not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to derive Source Code or modify, adapt, create derivative works based upon, or translate any Software and Documentation; (ii) copy, install or use Software, user interface designs or Documentation on any of its computer systems, servers, or networks without AwareX’s prior written consent; or (iii) transfer, lease, loan, resell, distribute or otherwise grant any rights in Software or Documentation in any form to any other party, including commercial time-sharing, rental, or service bureau use. Customer shall make no representations or warranties to any third parties, including any End Users, on behalf of AwareX regarding the awareX Subscription Service or any other products or services offered by AwareX.

General. Customer shall be solely responsible for, and AwareX is not liable for Customer’s failure in, (a) properly configuring, developing, programming, hosting and operating its hardware, software, web sites, Content and all Systems and Backend Connections, and their respective internet connections, to allow access to and use of the AwareX Server and awareX Subscription Service in accordance with the Documentation provided by AwareX and all applicable protocols and requirements of the AwareX Server; (b) thoroughly testing all Systems and Backend Connections and related web sites prior to use in connection with AwareX Server and the awareX Subscription Service; (c) ensuring compatibility of the Systems and Backend Connections with the AwareX Server and AwareX’s protocols; and (d) providing any interfaces or connections necessary to communicate with the AwareX Server. AwareX shall provide the Customer with all reasonable assistance and guidance required to enable the Customer to complete the actions set out in this clause 3.2, including reasonable remote technical support, at no additional charge. 

Content. Customer is and shall be solely responsible for the creation, editorial control, and all other aspects of Content.  Customer represents and warrants to AwareX that Customer has obtained (or will obtain, prior to transmission to the AwareX Server) all authorizations and permissions required to use and transmit the Content over the AwareX Server as part of the awareX Subscription Service and that all such use and transmission will be in accordance with all applicable laws and regulations. 

Systems. Customer is responsible for providing awareX the necessary access to, and hereby grants AwareX permission to use, Customer’s Systems and Backend Connections solely for performing this Agreement and to enable the awareX Subscription Service and its specified functionality. Additionally, Customer is responsible for all Apple, Amazon and Google subscriptions required for use with the Product and such accounts will be held in the Customer’s name.

If Customer plans any changes or upgrades to Customer Systems or Backend Connections, the customer should engage AwareX during the early stages of the change or upgrade process to ensure these changes or upgrades do not negatively impact the awareX Subscription Service. AwareX will not be responsible for any system downtime resulting from changes or upgrades to the Customer Systems or Backend Connections which were not properly communicated to, and the timing of the changes or upgrades coordinated with, AwareX in advance.

Testing. It shall be the Customer’s responsibility to review and test all Deliverables, including performance of any acceptance tests; where any acceptance test(s) is required, the Customer, at their own expense and regardless of outcome, shall complete those tests within twenty-five (25) days of delivery and provide written notification to AwareX within a further 5 working days of either (i) acceptance of each Deliverable or (ii) rejection, where in the Customer’s reasonable and good faith judgement Customer determines that any submitted Deliverable does not satisfy the agreed upon acceptance criteria, in which case AwareX shall have two opportunities to make commercially reasonable efforts to correct such deficiencies to meet the deliverables. In the absence of written acceptance within thirty (30) calendar days of delivery, or if the Deliverables are used in commercial service the Deliverables will be deemed accepted.

AwareX Expense Reimbursement. Customer shall reimburse AwareX as per actuals for all reasonable, documented and out-of-pocket travel and accommodation expenses incurred by AwareX for travel to Customer sites requested by Customer including airfare, lodging, meals, and auto rental; if the Customer cancels or reschedules the requested services and AwareX cannot be refunded amounts for the travel arrangements, the Customer shall pay those unrecoverable costs incurred by AwareX. 

Marketing of awareX Subscription Service. As of the Hosting Start Date of this Agreement, and until the Termination of the Agreement in accordance with Section 12, Customer commits to make reasonable commercial efforts to promote the awareX Mobile Subscription Service to its End Users, including if requested active and regular joint review of subscription penetration and usage rates with AwareX and active creation and promotion of incentive programs to boost usage.

Lawful Purposes. Customer agrees that it will use the awareX Subscription Service only for lawful purposes and in accordance with this Agreement.  Customer shall comply with all applicable laws and regulations when using the awareX Subscription Service or accessing the AwareX Server, including without limitation, compliance with applicable international export and privacy laws, and other laws regarding the transfer and/or transmission of data.  AwareX agrees that it shall comply with all applicable laws and regulations when providing the awareX Subscription Service, including without limitation, compliance with applicable international export and privacy laws, and other laws regarding the transfer and/or transmission of data.

Fees. Customer shall pay to AwareX the Fees and expenses as specified in this Agreement, in an Exhibit A, or on an Order Form for any products or services delivered by AwareX to Customer pursuant to this Agreement.

Invoice and Payment. The Customer shall pay the Usage Fees when due in accordance with this Agreement or as stated in any Order Form as applicable.  Usage Fees shall be invoiced and paid in accordance with an Exhibit A prior to the hosting start date. Where usage of the awareX Subscription Service results in an Incremental Usage Fee in excess of the Base Usage Fee, the excess shall be invoiced quarterly in arrears, due on a net 30 days basis. Set-up fees or other Services fees will be invoiced and paid in accordance with an Exhibit A.  In the case where Customer requires a Purchase Order to be issued to AwareX by Customer or the Customers agent in order to accept an invoice as valid, Customer shall issue the Purchase Order at least 45 days before the start of the applicable usage period or Hosting Start date. If Customer does not issue a Purchase Order in accordance to the terms of this contract, then AwareX is entitled to issue an Invoice and require immediate payment.

If Customer in good faith disputes the accuracy of any invoice for reasons such as clerical or computational errors then Customer shall pay all undisputed portions of the invoice when due but may withhold any portion that is disputed in good faith pending resolution of the dispute, provided Customer provides AwareX with written notice of such dispute on or before the date for payment of such invoice and uses commercially reasonable efforts to resolve such dispute.

Taxes.  The Fees shall be exclusive of any applicable sales, use, excise or value added taxes, including any withholding tax that Customer must withhold from payments to AwareX and remit to the relevant authority.  AwareX alone shall bear any taxes related to AwareX’s existence or gross or net income taxes based on the awareX Subscription Service provided by AwareX under the Agreement, including, without limitation, and unless otherwise agreed. If requested, Customer shall provide to AwareX a copy of its certificate of withholding to demonstrate any payment of withholding taxes.  Each Party shall provide to the other Party evidence of any tax-exempt status, act in accordance with such status, and promptly advise of any change in such status.  AwareX shall be responsible for paying AwareX personnel and making all deductions, payments and contributions and generally satisfying all personnel-related obligations required by law.  In the event it is determined that any taxes paid by Customer to AwareX in relation to the awareX Subscription Service (except withholding taxes), were not required to be paid, AwareX shall promptly refund such taxes to Customer.  For the avoidance of doubt, the Fees shall be exclusive of  all import VAT and duties.

Liquidated Damages for Delays. If AwareX fails to meet the agreed time schedule and/or any other milestones or such other fixed dates, then, unless and to the extent the delay is caused by factors not in the control of awareX (including any failure of Customer to meet its obligations), AwareX shall be liable to pay Customer liquidated damages once and for one breach per PO at the rate of one percent (1%) of the total amount payable to AwareX in respect of that Purchase Order payable for each week of delay or part thereof up to a maximum in total and aggregate of twelve percent (12%) of that amount.

AwareX will use all reasonable efforts to make the awareX Subscription Service available to the Customer 24 hours a day and 7 days a week during the term of the applicable Order Form (herein “Service Availability”).

The performance standards set forth in this Section 5 do not include service outages or system latency directly caused by Customer, by its Systems or Backend Connections, by applications on Customer’s servers, by problems associated with Customer’s web site or web servers, failure of Internet connectivity due to Customer’s or its suppliers’ equipment or services or by Customer specifications that do not meet AwareX compatibility requirements, including but not limited to: 

  1. Circumstances beyond AwareX's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA.
  2. Failure of network connections.
  3. DNS issues outside the direct control of AwareX.
  4. Interruptions of service caused by denial of service, virus or similar attacks or other forms of intrusion.
  5. Failure of interfaces to Customer’s back-end applications supplied to AwareX either by Customer or Customer’s partners/suppliers.
  6. Uncommunicated changes to interfaces or Customer’s back-end applications supplied to AwareX either by Customer or Customer’s partners/suppliers. AwareX requires adequate lead time to adopt to such changes to perform work to support such changes without interruption of service.
  7. Failures of Customer or Customer partner/supplier provided applications and systems necessary to enable the awareX Subscription Service.
  8. Maintenance downtime as described in Section 5.2 below.
  9. Customer caused outages or disruptions, and failures in Customer provided applications and systems necessary to enable the awareX Subscription Service.
  10. End-User device issues such as failure to have an appropriate data plan, improperly configured data connection settings, improper browser settings, etc. 

Scheduled Maintenance Downtime. AwareX will provide Customer with at least 7 days’ notice of any scheduled maintenance downtime.  Down time due to scheduled maintenance shall not exceed 2 hours per quarter.  AwareX reserves the right to perform immediate emergency maintenance, without prior notification, should it be deemed necessary to resolve a security breach. 

Monitoring and Diagnostics Tests. AwareX monitors the platform on a 24x7 basis and regularly executes diagnostic tests to determine the availability of the awareX Subscription Service. The results of these tests will be utilized for determining the service availability and SLA compliance. 

Service Outages. In the event AwareX discovers, or Customer notifies AwareX regarding, a problem associated with the awareX Subscription Service, AwareX will use all reasonable efforts to determine the source of the problem.  If the source of the problem is limited to AwareX’s infrastructure, AwareX will use all reasonable efforts to remedy the problem.  If the source of the problem and/or remedy resides outside of AwareX’s infrastructure, AwareX will use all reasonable efforts to notify the responsible party(ies) and cooperate with it (them) to resolve such problem as soon as possible.

Service Availability Targets. AwareX shall ensure service availability of 99.99% for the awareX Subscription Service, excluding any planned downtime. 

Service Availability Credits

  1. AwareX will issue Customer credit against future Usage Fees (“Service Availability Credit”) for service unavailability to end users time within a calendar month in deficit of the service availability targets in accordance with the service credit table below.
  2. Notwithstanding anything to the contrary herein, the total amount credited to Customer in a particular month under this SLA shall not exceed the total Usage Fees paid by Customer for such month where the awareX Subscription Service was unavailable to end users. Credits are exclusive of any applicable taxes charged to Customer or collected by AwareX.

Service Credit table:

 Percentage of availability below the required 99.99% Service Availability measured and reported on a monthly basis  Service Credit calculated as a percentage of the Service pro-rata monthly fees payable under this Agreement
 Less than 99.99% and equal to or greater than 99.9% 3% 
 Less than 99.9% and equal to or greater than 99.0% 5% 
 Less than 99.0 10% 

Support. AwareX shall be responsible for providing support to Customer with regard to the awareX Subscription Service.  Customer shall be responsible for providing support to End Users with regard to the awareX Subscription Service.

Service Level Agreement. SLA’s are provided by AwareX to Customer for Service Availability and Service Support Times, as detailed below. 

Contacts. Customer shall appoint in writing an employee or agent to act as the “Designated support Contact” for all support communication between the parties related to the awareX Subscription Service and at least one (1) back up contact.  AwareX will provide the support services to the Customer during their normal business hours based on the country location of the Designated Contact. AwareX will, during its normal business hours, use commercially reasonable efforts to respond to each technical support request based on the severity of the support request as described below. The support SLA response times are defined in Section 6.5 below.

Emergency Support. AwareX will provide the Customer emergency support on a 24*7 basis for all priority A, Critical support requests provided that the Customer notifies AwareX of such critical request by the means instructed by AwareX’s support portal website. AwareX will use commercially reasonable efforts to respond within 15 minutes of any such request. 

Target Response and Resolution Times. The response, restoration, workaround and resolution times based on priority levels of reported problems are listed below. AwareX shall use all reasonable efforts to meet the guidelines as set forth in the table below. Requests for Support Services shall be categorized in Priority A, B, C or D according to severity of the defect as set out below. 

Support-Table 

Response Time means the maximum period between the registration of a trouble report with AwareX and contact with Customer by an AwareX support engineer.

Restoration Time means the period between the registration of a trouble report with AwareX and the time when the system is put back into operation, so that the service is available again.  Restoration time for issues requiring updates to Apple iOS native applications may not comply with the SLAs due to policies enforced by Apple’s iTunes review process and thus are necessarily exempted from restoration time objectives.

Workaround Time means the period between the registration of a trouble report with AwareX and the implementation time of an error correction or workaround solution or procedure.

Resolution Time (Permanent Solution) means the maximum period between the registration of a trouble report with AwareX and the delivery of a permanent solution to Customer.

Priority A (Critical) means a service is down (unavailable to Customers end users) or a software defect that severely impacts Customer’s operations. Critical Errors severely affect service, capacity/traffic, billing, Software functionality or maintenance capabilities and/or demand constant manual intervention in order to keep the system running, and require immediate corrective action, regardless of time of day or day of the week as viewed by Customer. AwareX will give the highest scheduling priority and devote its best available resources to the verification, analysis, response, temporary avoidance and correction of errors in this category. Critical Errors can only be reported for an installation of the Software used in a production environment or Software being deployed in Customer’s production environment.  Critical issues must impact more than 100 end users of the system. 

If a workaround for an agreed Priority A trouble report is supplied, then the relevant trouble report can be re-classified with mutual agreement to a Priority B trouble report, which will be handled as a new trouble report in accordance with support policies for Priority B classifications.

Priority B (Major) means a Software defect causing the Customer’s system to operate in restricted fashion. Major Errors cause conditions that seriously affect system operation, maintenance and administration, etc. and require immediate attention. The urgency is less than in Critical situations because of a lesser immediate or impending effect on system performance, Customers, and Customers’ operations and revenue. AwareX will give the second highest scheduling priority and devote its reasonable efforts and available qualified resources to the verification, analysis, response, temporary avoidance and full solution and correction of Major Errors, giving first priority to the identification of possible methods of recovery from the Error in the existing Software.   Major issues must impact more than 10 end users of the system. 

Priority C (Minor) means a Software defect causing little or no loss of service. Other Errors that Customer does not view as critical or major are considered minor. Minor Errors do not significantly impair the functioning of the system and do not significantly affect service to end user Customers. These problems are tolerable during system use. Engineering complaints are classified as minor, and the Parties may reclassify them as enhancement requests to be handled under the road mapping process. AwareX will give the third highest scheduling priority and resource allocation to the verification, analysis, response, temporary avoidance and correction of Minor Errors.

Priorities will be assigned and set by Customer when logging the issue in the AwareX support portal based upon the criteria detailed in this section. It is understood between the Parties that by mutual agreement a trouble report may be reclassified, e.g. from Priority A to Priority B.

Priority D (Questions) AwareX shall advise Customer in response to priority D technical questions asked regarding aspects of the awareX Subscription Service.  AwareX acknowledges the need to respond in a timely manner to Customer requests for technical input and will meet any requests for technical information in a timely and professional manner.

Applicability. Support is available to customers with current paid up accounts only.

Software Updates. AwareX shall work with the Customer to select which feature(s) from AwareX’s most recently available and released product to include in a Software enablement Update. The selected feature(s) within the Software Update for the Customer is defined in AwareX’s product management system.  This is in accordance with the tier of maintenance purchased by Customer but in all cases the Updated software fees are included within the maintenance fees and no additional software license fees are due. A fee will be payable for the services required to affect the enablement upgrade. AwareX continuously provides enhanced or additional capabilities and/or bug fixes in its Product.  AwareX shall provide notice to Customer of the availability of Updates and Upgrades, and Customer will make reasonable efforts to review, test and approve the installation of Updates and Upgrades of the Software within thirty (30) days with respect to any Update or Upgrade for which AwareX notifies Customer has been issued to address an actual or threatened Claim of infringement. AwareX shall, promptly on receiving such consent in the form of a Purchase Order (for enablement upgrade services), and at no additional software charge to Customer, install such Update or Upgrade. AwareX shall also offer to Customer assistance for other requested Customer specific services at AwareX’s then applicable time and materials rates.  AwareX reserves the right to provide Updates for only specific versions of the Software it deems appropriate, so that changes made in Updates and Upgrades may not be applied to all previously released versions of the Software. AwareX shall have no liability for, or any obligations due to, any changes in Customer’s hardware, systems, Backend Connections or other software that may be necessary to use or access new versions of the Software. AwareX will provide maintenance for the most current and immediately preceding Upgrade versions of the Software, provided that AwareX shall support any Upgrade released during the prior 12 months.

Software Environment Updates. AwareX shall use all reasonable efforts to furnish Customer with new releases of the Software that are required by changes to the Customer equipment, products and the Customer operating environments. AwareX agrees that such new Updates will be available to Customer for evaluation and acceptance after a period of time following the introduction of the new operating environments or changes to Customer hardware. Such reasonable period shall take into account the extent of the changes in the new operating environment. 

Software Repository. AwareX is responsible for maintaining copies any Updates, and related documentation, for Customer.

Applicability. Maintenance is available to customers with current paid up accounts only.

AwareX Ownership. All right, title, and interest, including all intellectual property rights in the awareX Subscription Service and any associated hardware and software of AwareX or its licensors, and any updates, or upgrades thereof, or in any ideas, know-how, and programs developed by AwareX or its licensors during the course of performance of this Agreement shall remain the property of AwareX or its licensors.

Customer Ownership. All rights, title, and interest including all intellectual property in any Customer-provided Content communicated via AwareX’s infrastructure through use of the awareX Subscription Service shall remain the sole property of Customer.

Definition. “Confidential Information” means any information disclosed by either party to the other party under this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, Personal Information, software, facilities, equipment and operating plans).  Confidential Information may also include information disclosed to a disclosing party by third parties.  Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already rightfully in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure and discloses only so much of the Confidential Information as is required.

Non-use and Non-disclosure. Each party agrees not to use any Confidential Information of the other party except as expressly permitted in this Agreement or as expressly authorized.  Each party agrees not to disclose any Confidential Information of the other party, to third parties except as provided in Sections 9.3 and 9.4 below. 

Terms of Agreement. Each party agrees that the specific commercial terms and conditions of this Agreement including but not limited too Price, Dates, Deliverables will be treated as the other parties’ Confidential Information and that no reference to the terms and conditions of this Agreement may be made in any form of press release or public statement without first consulting with the other party; provided, however, that each party may disclose the terms and conditions of this Agreement:  (i) as may be required by law, if such party notifies the other party of such requirement prior to such disclosure in sufficient time to enable the other party to seek a protective order covering such disclosure; (ii) to legal counsel of the parties, provided such counsel is informed of his/her obligation to keep such disclosure in confidence with the same degree of care as the party’s other Confidential Information; (iii) in connection with the requirements of an initial public offering or securities filing provided such party seeks confidential treatment of the terms and conditions of this Agreement as appropriate; (iv) to accountants, banks and financing sources and their advisors, provided such persons and/or entities are informed of the obligation to keep such disclosure in confidence with the same degree of care as the party's other Confidential Information; and (v) in connection with a merger or acquisition or proposed merger or acquisition or the like provided such party seeks confidential treatment of the terms and conditions of this Agreement as appropriate and provided that the person to whom the Confidential Information is disclosed are informed of the obligation to keep such disclosure in confidence with the same degree of care as the party's other Confidential Information.

Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party.  Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information but in no circumstances less than reasonable care.  Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of this Agreement and who are informed of the obligation to keep such disclosure in confidence, and each party shall be responsible to ensure that its officers, employees, consultants and legal advisors comply with the restrictions set forth herein.  Neither party shall make any copies of the Confidential Information of the other party except as appropriate to perform its obligations pursuant to this Agreement.  Each party shall reproduce the other party's proprietary rights notices on any such copies, in the same manner in which such notices were set forth in or on the original. 

Remedies. Each party acknowledges that a breach of this Section 9 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain.  Accordingly, the parties agree that, in addition to any other remedies to which the non-breaching party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive relief from a court of competent jurisdiction in the event of a breach of this Section 9 by the other party or any of its officers, employees, consultants or other agents.  The parties further agree that no bond or other security shall be required in obtaining such equitable relief and the parties hereby consent to the issuance of any such injunctive relief.

AwareX will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards to protect the Customer’s Data and Personal Information. Safeguards will include, but are not limited to, measures preventing unauthorized physical or remote access to the Server, monitoring of remote access attempts, and use of firewalls and appropriate software for the purposes of providing security, all of which are to be made in AwareX’s sole discretion.

AwareX will use industry standard encryption techniques for any data transmissions by the Server. These techniques include, but are not limited to, secure socket layer (SSL), transport layer security (TLS) and secure shell (SSH). Use of this service by the Customer will be over HTTPS protocol and AwareX will provide the Customer with the required third-party verified SSL certificate.

Customer will be responsible for ensuring encryption keys required for use with the awareX Subscription Service are stored securely. AwareX will not retain this private information on behalf of the customer.

The Software includes certain optional interfaces with third-party applications or use of external communications such as email or SMS that either does not use any encryption or for which the data encryption is defined by the third-party interface. Use of these features is at sole discretion and risk of the Customer.

AwareX acknowledges and agrees that in the course of its engagement by the Customer, AwareX may receive or have access to Personal Information. AwareX shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Personal Information and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Information under its control or in its possession.  AwareX agrees and covenants that it shall: 

  1. Keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure
  2. Not access Personal information in violation of law, and
  3. Use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information is provided or accessed pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for AwareX’s own purposes or for the benefit of anyone other than Customer, in each case, without Customer’s prior written consent. 

AwareX will ensure Customer Data is backed up each day, with the exception of ephemeral data that is confined to volatile memory or in transit on a network connection. AwareX does not provide any warranty on the time of day for when the backup will occur, and Customer accepts all risks associated therewith.

Customer must provide AwareX access to its Apple Developer and iTunes accounts and Google Play Developer console for use specifically associated with provision of the awareX solution. AwareX will treat such accounts as private Customer information.  Customer will not hold AwareX liable for errors made while performing activities on behalf of the Customer on these systems.

Press Releases. AwareX reserves the right to publish a press release as of the Hosting Start Date of this Agreement announcing Customer’s selection of and contract to use AwareX’s awareX Subscription Service, subject to the review and written approval of Customer which shall not be unreasonably withheld or otherwise delayed, and to reference Customer as a client in the normal course of business during the term of this Agreement.  After sixty (60) days of live system usage AwareX reserves the right to publish a success story of Customer’s usage of the awareX Subscription Service, subject to prior review and written approval of Customer, which approval shall not be unreasonably withheld or otherwise delayed. Customer shall have the right to publish such relevant material as may be required to promote use of the service to its customer base, stimulate usage by its customer base or promote the image, capability or brand of Customer.

Use of Name. As of the Hosting Start Date of this Agreement, both parties may (subject to the review and written approval of the other Party which shall not be unreasonably withheld or otherwise delayed) use the other party’s name in press releases, sales activities, product brochures and similar marketing materials, financial reports and prospectuses indicating that such party is a customer or supplier, as applicable, of such party. AwareX reserves the right to include the AwareX name along with the release/version information within the Product.

The term of this Agreement starts on the Effective Date and will extend for the period of one (1) year following the Hosting Start Date (the “Initial Term”), unless earlier terminated in accordance with this Section 12.  After the Initial Term, this Agreement shall automatically renew on each anniversary of the Hosting Start Date on the same terms and conditions unless the Agreement is terminated in writing by not less than ninety (90) days prior notice by either party or amended by written agreement of both parties.

Right to Terminate for Breach. Each party has the right, without prejudice to its other rights or remedies, to terminate the Agreement, by written notice to the other party if the other party is in material breach of its obligations under the Agreement. And, if the breach is capable of cure, it fails to remedy that breach within ninety (90) days after receiving written notice from the other party requiring it to do the same.

Termination upon Default. In the event of a Substantial Breach, the non-breaching Party shall, without limiting any other rights it may have in law or equity, have the right to terminate this agreement without cost, penalty, or process of law upon giving a minimum of forty-eight (48) hours prior written notice to the breaching Party.

Consequences of Termination. Upon termination or expiry of this Agreement, or an Order Form for any reason AwareX from and after the date of the Termination Notice until the effective date of the termination or expiry of this Agreement, as stated in the Termination Notice, AwareX shall continue to perform and complete the Services in accordance with the terms of this contract. Customer shall continue to be liable for the payment to AwareX of the Fees for the Products and Services provided to Customer up to and including the effective date of the termination and independent of and not restricted by or related to any other milestone. At that time AwareX shall return or, at Customer’ written instruction, destroy all Confidential Information belonging to Customer and any Customer Data in its possession.  AwareX shall immediately deliver to Customer any Customer-owned deliverables produced as part of the provision of Products and/or Services; such delivery shall be at AwareX’s cost, provided that Customer shall be responsible for such costs if the termination is as a result of Customer’s breach.  Customer shall provide access and AwareX shall remove any AwareX equipment from any Customer sites.  Each party shall return immediately to the other any and all property (and all copies thereof) which is in that party's possession or under its control and which belongs to the other party and which was provided or made available solely for the purpose of the affected Order Form(s).  AwareX shall, at its then applicable professional services rates, provide Customer with all reasonable assistance and consultation to ensure a smooth and timely transition of any terminated or expired Services to ensure that all Customer Confidential Information, data and back-up copies of such data which is related to the terminated or expired awareX Subscription Service are so far as possible, transferred to Customer, in an electronic format and by such date as reasonably requested by Customer; and in any event purged from AwareX’s Servers within thirty (30) days of the effective date of the termination or expiration; provide all reasonable assistance to ensure that any relevant data is successfully migrated across to any other system; and provide a final handover report to Customer.

Customer may cancel the exit services described above or any element of them at any time upon giving not less than thirty (30) days' notice. Where a termination is based on a breach by Customer of its payment obligations, then, prior to AwareX being required to provide the transition assistance described herein, Customer shall pay to AwareX all amounts due and owing to AwareX and pay AwareX (on a monthly basis and in advance) all fees and estimated expenses (subject to reconciliation) in respect of such transition assistance.

Accrued Rights and Liabilities. Any termination of the Agreement, or an Order Form (or partial termination thereof) shall not (i) affect any accrued rights or liabilities of either party  (ii) affect the coming into force or the continuance in force of any provision of the Agreement, or an Order Form or other contract which is expressly or by implication intended to come into or continue in force on or after such termination or (iv) terminate any license then in force which has been granted to Customer under this Agreement, or an Order Form.

Order Forms to Continue. Unless expressly stated otherwise in writing by Customer, any termination of the Agreement shall not terminate any Purchase Orders which have already been placed by Customer or which are otherwise still in effect.

Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: Intellectual Property 8, Confidential Information 9, Consequences of Termination 12.4, Accrued Rights and Liabilities 12.5, Indemnification 13, Warranty and Disclaimer 14 and Limitation of Liability 15 and any payment obligations incurred prior to the expiration or termination of this Agreement.

By AwareX. AwareX will indemnify, defend and hold harmless Customer, at AwareX’s expense, from and against any of the following third-party claims, actions or demands (“Claims”) assessed against an Indemnified Party by a court of competent jurisdiction or agreed by AwareX to be paid in settlement (collectively, “Losses”) to the extent arising from such Claims: (a) Claims that the awareX Subscription Service or AwareX Software and Documentation provided hereunder or used within the grant of license directly or indirectly infringes any worldwide  patent, copyright or other intellectual property right of a third party or alleging that authorized use of the awareX Subscription Service or AwareX Software and Documentation, violates any law, rule, regulation or court order or (b) Claims that any use of the Content by AwareX is in violation of this Agreement.

AwareX shall have no obligation under this Section 13 for or with respect to Claims alleging infringement to the extent arising as a result of (a) the combination of the Software by Customer with any items not supplied by AwareX; (b) modification of the awareX Subscription Service or AwareX Software or Documentation by AwareX in compliance with specific written design specifications or instructions provided by Customer and required by Customer to be followed by AwareX; (c) the direct or contributory infringement of any process patent by Customer through the use of the awareX Subscription Service or AwareX Software or Documentation in a manner that is different from the permitted uses hereunder and from the typical use contemplated by AwareX’s business and the Documentation; (d) use of the awareX Subscription Service or AwareX Software or Documentation by Customer other than in accordance with the terms and conditions of this Agreement; or (e) Customer’s failure to install any maintenance release or new version of the Software provided by AwareX within thirty (30) days after notice from AwareX that such installation is necessary to avoid an infringement claim.

If the awareX Subscription Service or AwareX Software or Documentation becomes, or in AwareX’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, or if use of the awareX Subscription Service or AwareX Software or Documentation is permanently enjoined for any reason, AwareX, at its option, shall (1) modify the awareX Subscription Service or AwareX Software or Documentation so as to avoid infringement, such that the modified awareX Subscription Service or AwareX Software or Documentation performs materially the same functions in a non-infringing manner; (2) procure the right for Customer to continue to use the awareX Subscription Service or AwareX Software or Documentation as set forth herein; or (3) if neither of the foregoing actions are feasible on commercially reasonable terms, then AwareX shall have the right to terminate this Agreement without further liability except for its obligations under this Section 13.

This section 13 states AwareX’s entire liability to Customer and Customers sole remedy for any infringement or misappropriation claims concerning the awareX Subscription Service or AwareX Software or Documentation.

By Customer. Customer shall indemnify, defend, and hold AwareX harmless from and against any of the following third party Claims, and any Losses to the extent arising from such Claims:  (a) Claims based on Customer's Content, or the authorized use or transmission thereof by AwareX, or the content of Customer's web site, including but not limited to claims of defamation, invasion of privacy, or the violation of any right of publicity or other rights of any person or entity, (b) Claims that the storage or transmission of any Content by AwareX in the course of performing the awareX Subscription Service violates any law, rule, regulation or court order, (c) Claims that any use of the awareX Subscription Service by Customer or its end users is in violation of this Agreement, or (d) any transmission by Customer or its end users of any harmful code to or through AwareX Server.

Indemnification Requirements.  The indemnities set forth herein apply only provided that the party seeking the indemnification (“Indemnified Party”) : (i) gives written notice of the claim promptly to the other party (“Indemnifying Party”), (ii) gives Indemnifying Party sole control of the investigation, defense and settlement of the claim (provided that no settlement of a claim involving a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent shall not unreasonably be withheld), provided that Indemnified Party shall have the ability to participate with counsel of its own choosing at its own cost, (iii) provides to Indemnifying Party all reasonable information and assistance, (iv) has not compromised or settled such claim without Indemnifying Party 's prior written consent and (v) has at all times used reasonable efforts to mitigate the losses incurred.

Warranty. AwareX warrants to Customer that (a) it owns or has the rights to license the awareX Subscription Service, AwareX Software and Documentation; (b)  the awareX Subscription Service and AwareX Software and Documentation do not infringe any worldwide patents, copyrights or other intellectual property rights; (c) it has the right and authority to enter into this Agreement; and (d) it shall perform the awareX Subscription Service and its obligations hereunder in a commercially reasonable, professional and workmanlike manner, consistent with prevailing industry customs and standards.

Malware Warranty. AwareX warrants to Customer that AwareX shall use commercially reasonable actions and precautions to prevent the introduction or proliferation of any Malware into the awareX Subscription Service.  As used herein, “Malware” shall mean (a) any code, program, or sub-program whose knowing or intended purpose is to damage or interfere with the operation of the software or computer system containing the code, program or sub-program, or to halt, disable or interfere with the operation of the software, code, program, or sub-program, itself, (b) any device, method, or token that permits any person to circumvent the normal security of the software or the system containing the code, or (c) any code, program, or sub-program whose knowing or intended purpose is to serve as an adaptive threat by, among other possibilities, obtaining and sending data from the software or computer system containing the code, program or sub-program.

Disclaimer. AwareX makes no other warranty of any kind, whether express, Implied, Statutory, or otherwise relating to the awareX subscription service or any other materials or service furnished or provided to Customer under this agreement. AwareX disclaims all implied warranties of merchantability or fitness for a particular purpose.

Indirect Damages. Except as set forth below, neither party shall be liable for any indirect, special, punitive or consequential damages, or the loss of profits regardless of the form of action, even if advised of the possibility of such damages. Each party acknowledges that this limitation reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this agreement and constitutes a substantial portion of the consideration exchanged between the parties with respect to this agreement.

Aggregate Liability. Except as set forth below, in no event will either parties aggregate liability for any damages arising from or related to this agreement, whether in contract or in tort or under any other legal theory including strict liability and negligence, exceed the aggregate amounts paid by Customer to AwareX under this agreement for the Twelve (12) months prior to the month in which the most recent event giving rise to liability occurred. The foregoing shall not release Customer from its obligations to pay all amounts due hereunder with respect to the periods up to the date of termination or expiration of this agreement.

The disclaimer set forth in paragraph 1 above and the liability cap set forth in paragraph 2 above shall not exclude or limit the liability of either party in the case of: (a) the payment obligations set forth in the indemnification provisions in this Agreement; (b) fraud or willful misconduct of either party; (c) death or personal injury or damage to real or tangible property caused by either party’s negligence, misconduct or breach; (d) breach of the usage restrictions set forth in Section 3; or (e) breach by either party of its confidentiality obligations as set forth in this Agreement.

Entire Agreement. This Agreement constitutes the sole and complete agreement between the parties with regard to its subject matter.  Neither Party shall be subject to any provisions of any pre-printed purchase order, any shrink-wrap or click-wrap license or any Customer policies, regulations, rules, or the like, including those set forth in any Customer sponsored registration system, regardless if such requires affirmative acknowledgement from a AwareX representative.

Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party, such consent not to be unreasonably withheld. Any attempted assignment in violation of this Section 16.2 shall be null and void.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.  Notwithstanding the foregoing, each party may assign its rights and delegate its obligations hereunder to (a) an acquirer of all or substantially all of the assets of such party, or (b) the surviving entity into which such party is consolidated or merged, provided, that, except to the extent such assignment occurs as a result of the operation of law, such assignee, successor or survivor expressly assumes and agrees to all terms and conditions of this Agreement applicable to the assigning party in writing provided to the other party.  No assignment or transfer by either party shall relieve such party of any of its duties, obligations or liabilities under this Agreement.

Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged.  No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.

Governing Law. This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.

Dispute Resolution. In the event of any dispute between the parties arising out of this Agreement, the parties shall first each cause one of their three senior-most executives to meet in person to attempt to reach in good faith a resolution of the issue. Such meeting is to occur within twenty-one (21) days after either party first delivers to the other a written notice requesting such meeting, and the failure of a party to reasonably attend such meeting shall be rebuttable evidence of a lack of good faith in such negotiations.  If this is unsuccessful, the parties shall submit the dispute to non-binding mediation. Subject to the other agreement of the parties, mediation will occur within thirty (30) business days after the parties agree to submit the dispute to mediation.  The parties mutually shall select an independent mediator experienced in SaaS software, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the dispute.  The specific format for the mediation shall be left to the discretion of the mediator and the designated party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other party. If the prior level of dispute resolution is unsuccessful, the dispute shall be resolved by a binding arbitration in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules.  Notwithstanding the foregoing, nothing herein shall prevent either party from seeking to obtain equitable or injunctive relief for any breach or threatened breach hereof.

Audit. AwareX shall, during the Term and for a period of one year after the calendar year in which an activity related, maintain accurate and complete records as are necessary to enable AwareX to demonstrate full compliance with the terms of this Agreement. Customer shall have the right (not more than once per calendar year), using an independent auditor, at such times as are reasonably mutually agreeable to the parties, to inspect, during normal business hours, AwareX’s records to verify compliance by AwareX with the terms of this Agreement.  AwareX agrees to cooperate with Customer in any such inspection.  Such inspection shall not disrupt AwareX’s business operations.  All costs of such inspection shall be borne by Customer.

Relationship of Parties. The parties are independent companies.  Neither party shall be deemed to be an employee, agent, partner nor legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

Force Majeure. Except for Customer’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, strikes or shortages of materials (a “Force Majeure Event”).

Headings and References. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

Counterparts. This Agreement may be executed via facsimile or email in any number of counterparts, all of which taken together shall constitute one and the same agreement.

Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the party to whom the notice is directed at the address of such party set forth below or at such other address as a party may hereafter designate in writing to the other party:

If to AwareX:
AwareX Inc.
200 Portland St, 4th Floor,
Boston, MA 02114
Attn: Chief Legal Officer

If to Customer:   
<Customer Name>
<Customer address line 1>
<Customer address line 2>
<Customer address line 3>
<Customer address line 4>
<Customer Country>

<Customer FOA representative> 

Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) personally delivered; or (b) one (1) day after posting when sent by registered private overnight carrier; or (c) five (5) days after posting when sent by registered mail. 

Complete Understanding.  This Agreement, including all Exhibits, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal, warranties and representations.