Section 1: Basic Terms
- Agreement: Agreement means these terms, any Order(s), any Statement of Work between you and us and any attachments, exhibits and annexes hereto to an Order or Statement of Work.
- Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with, the subject entity, where “control” is the direct or indirect ownership or control of at least a majority of the voting rights in the entity, or otherwise the power to direct the management and policies of the entity. An entity is an Affiliate only so long as such control continues.
- Customer Content or Customer Data: means: (a) any data or content that is provided by Customer to Peaxy for transmission, storage, integration, import, display, distribution or use in or through use of the Peaxy Solutions, including private information; and (b) any data, reports or other information generated by the Peaxy Solution to the extent they contain any such data or content.
- Customer Software: Customer Software means software developed by or for Customer prior to the Effective Date and incorporated into the Peaxy Solution.
- Documentation: means the online or written user guides, specifications, and manuals regarding the Services made available by Peaxy, and any updates thereto.
- Digital Managed Asset (DMA): an individualized serialized asset tracked in PLI. The asset’s digital footprint may include information such as engineering and design documentation, manufacturing documentation, costing information, test plans, test results and analysis, modification documentation and fault analysis documentation, costing information, warranty data, sales, customer and contract data, ambient operating data, commissioning data, site information, support and maintenance records.
- DMA Fees: Fees per asset managed by the Peaxy Solution, charged on a quarterly basis.
- Effective Date: (i) of the Agreement means the date when the first Order is signed by both you and us, and (ii) of an Order means when the Order is signed by both you and us.
- Force Majeure: means an act of God (e.g., a natural disaster, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party’s control).
- Intellectual Property Rights: means rights recognised by any jurisdiction with respect to intellectual work product, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know how, domain name rights and other intellectual or industrial property rights.
- Order: means an ordering document, such as a Statement of Work (SoW), executed by you and us for subscription to Services and/or, if applicable, for the provision of professional services by us.
- Peaxy: means Peaxy, Inc or an Affiliate thereof.
- Peaxy Algorithm: An unambiguous specification of how to solve a class of problems for various types of equipment. Algorithms perform calculations, data processing and automated reasoning tasks. For clarity, a Peaxy Algorithm includes default settings that are not trained or tuned by Customer’s historical or real-time data.
- Peaxy Data: means the information on the Order, data about the configuration and use of the Services, Usage Data, the Documentation, and other information provided to you via login in the Services or otherwise by Peaxy in the course of performance under this Agreement, other than Customer Data.
- Peaxy Solution(s): Peaxy Solution(s) are Peaxy proprietary software, Peaxy Lifecycle Intelligence (PLI), Peaxy BlueSky and Peaxy Fast Proposal (PFP) and all of their associated modules as specified in the Statement of Work (SoW) and/or Proposal, including any third-party software used to supply the deliverables, and any improvements, modifications, adaptations, derivative works, patches, updates, and upgrades.
- Services: means the products and services ordered by you under an Order and made available online by Peaxy, including any associated offline or mobile components, but excluding Third-Party Services. The Services include any modifications, enhancements, updates, revisions and derivative works thereof.
- Statement of Work (SoW): means a statement of work between you and Peaxy for the provision of consulting or other professional services by Peaxy related to the Services.
- Technical Support: Peaxy shall provide Technical Support to Customers as found in Section 8.
- Term: Term as applied to this Agreement means 12 (twelve) months from date of delivery of the Peaxy Solution to Customer which may be extended by renewal. If a specific term is declared in the Statement of Work or the Proposal it supersedes this definition.
- Third-Party Service: means any product (e.g. software, cloud services, or forms), tool (e.g. integration or development tools) or service (e.g. implementation, configuration, development or accounting) provided by a party other than Peaxy (a “Third-Party Provider”).
- User: means a named individual authorized by you to use the Services, and who has been supplied with user credentials for the Services by you or by us at your request.
Section 2: Usage Rights
- Access to the Services: Subject to the terms and conditions of this Agreement and payment of all applicable fees, Peaxy grants Customer a limited-term, non-exclusive, non-sublicensable, non transferable (except as expressly permitted herein) right to access and use the Services specified in Customer Order(s) solely for Customer internal business purposes.
- Subscriptions: Unless otherwise noted on an Order, Services are purchased as time-based subscriptions. Peaxy reserves the right to monitor Customer use of the Services to effect this Agreement and/or verify compliance with any subscription limits and this Agreement.
- Account Protection: Customer shall limit access to the Peaxy Solution(s) only to Authorized Users and require such Authorized Users to keep Account login information, including the username and password, strictly confidential and not provide such Account login information to any unauthorized third parties. Customer is solely responsible for monitoring and controlling access to Account login information in the possession of Customer and its Authorized Users. In the event that Customer or any Authorized User becomes aware that the security of the Account login information has been compromised, Customer shall immediately notify Peaxy of the breach. If Peaxy discovers or is notified of a breach of security that affects the security of any Content subject to any data breach notification law, Peaxy will notify Customer immediately.
Section 3: Fees and Payment
- Fees: Fees are in the currency specified on the Order. From time to time, Peaxy may change our fees. Customer will be notified at least 30 days in advance before Peaxy applies any fee changes to Customer Services subscriptions. Unless otherwise set forth in an Order, such changes will not affect the prices for Services during the then-current subscription term and will become effective upon the next renewal term that commences at least 30 days after Peaxy notification of the fee change.
- Billing and Contact Information: Customer agrees to provide Peaxy with complete and accu rate billing and contact information, including a specific technical contact if applicable, and shall promptly notify Peaxy of any change thereto.
- Taxes: All fees are exclusive of all applicable taxes, levies, and duties, and Customer shall be responsible for their payment, excluding taxes on Peaxy’s net income. If Peaxy is obligated to collect applicable taxes, these will be included on the Customer invoice, and Customer will pay all such amounts to Peaxy unless Customer provides Peaxy with a valid tax exemption certificate.
- Each party will timely provide the other with any documents and information as may be required under, or to comply with, applicable tax laws and regulations.
- Payment Terms: Payment is due net 30 days from date of invoice.
- Late Payment; Non-Payment: If Peaxy does not receive any fees that Customer owes Peaxy by the due date specified on the Customer invoice, those fees shall accrue interest at the lower of 1.5% per month or the maximum rate permitted by law. Non-payment of any fees for the Services owed to Peaxy or of any other amounts due by Customer to Peaxy is a material breach of this Agreement.
Section 4: Proprietary Rights
- Services: Subject to the limited rights expressly granted hereunder, as between the parties Peaxy shall own all rights, title and interest, including all Intellectual Property Rights, in and to the Services (including any configurations and customizations thereof), Peaxy Data and the results of consulting and other professional services performed by Peaxy or on its behalf. All rights not expressly granted in this Agreement are reserved by Peaxy.
- Customer Content and Customer Software: As between Customer and Peaxy, Customer retains all rights, title, and interest in and to Content and Customer Software including without limitation all Intellectual Property Rights embodied in any of the foregoing. You grant Peaxy and its subcontractors a worldwide, royalty-free, non-exclusive license to host, copy, transmit, display and use the Customer Content to provide, administer and ensure the proper operation of the Services and related systems and to perform our rights and obligations under this Agreement. For clarity, Peaxy Solution(s) and/or PoC are not considered improvements to Customer Software.
- Feedback: Customer may, but is not required to, provide Peaxy or its affiliates with ideas, suggestions, requests, recommendations or feedback about the Services (“Feedback”). If Customer does so, Customer grants Peaxy a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.
- Trained Algorithm with Customer Data: As between Customer and Peaxy, Customer retains all rights, title, and interest in and to the Trained Algorithm with Customer Data. For clarity, a Trained Algorithm with Customer Data is the trained and/or tuned algorithm using Customer’s historical and real-time data resulting in a unique mathematical instance of the algorithm.
- Peaxy Solution(s), Proof of Concept and Updates: As between Customer and Peaxy, Peaxy retains all rights, title, and interest in and to the Peaxy Solution(s), the PoC and Updates (other than the Customer Software and Content included in them), including without limitation all Intellectual Property Rights embodied in any of the foregoing.
- No Implied Grant of Rights: Except for the express rights granted herein, Peaxy does not grant any other licenses or access, whether express or implied, to any Peaxy software, services, technology or Intellectual Property Rights.
- Preservation of Notices: Customer will maintain and not remove, obscure, or alter any copyright notice, trademarks, logos and trade names and any other notices or product identifications that appear on or in any Peaxy Solutions, Updates or Documentation or any associated media.
- Restrictions: Customer will not (and will not allow any third party to): (i) gain or attempt to gain unauthorized access to the Peaxy Solutions or documentation or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Peaxy Solutions; (ii) interfere with or disrupt the integrity or performance of Peaxy Solutions; (iii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or program through the Peaxy Solutions, (iv) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Peaxy Solutions (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (v) provide, lease, lend, use for time sharing or service bureau purposes or otherwise use or allow others to use the Peaxy Solutions for the benefit of any third party; (vi) list or otherwise display or copy any code of any Peaxy Solution; (vii) copy any Peaxy Solution (or component thereof), develop any improvement, modification or derivative work thereof, or include any portion thereof in any other service, equipment or item; (viii) allow the transfer, transmission, export, or re-export of any Peaxy Solutions or documentation (or any portion thereof) or any Peaxy technical data; (ix) perform benchmark tests on the Peaxy Solutions; or (x) use, evaluate or view the Peaxy Solutions or documentation for the purpose of designing, modifying or otherwise creating any environment, program or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Peaxy Solutions.
- Open Source: Portions of the Peaxy Solutions may be provided with notices and open source or similar licenses from communities and third parties that govern the use of those portions. Customer agrees to fully comply with such licenses. No licenses or access granted hereunder shall alter any duties or obligations Customer may have under such open source or other licenses; however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all such software.
Section 5: Confidentiality and Data Security
- Confidential Information: means all information of a party or its Affiliates (”Discloser”) disclosed to the other party or its Affiliates (”Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. ”Confidential Information” means non-public information that is confidential or proprietary to the Disclosing Party or third parties to which the Disclosing Party owes any duty of confidentiality, and may include, but is not limited to, documents, materials and information regarding or relating to the Disclosing Party’s business, programs, as sets, personnel, financial condition, results of operations, inventions, discoveries, methods, operations, ideas, concepts, plans, designs, products, processes, know-how, trade secrets, intended uses, technology, software, and/or prospects. Without limiting the scope of the foregoing, ”Confidential Information” shall also include (i) Peaxy Solutions, Customer Software and Customer Content, and any information, documentation or data relating to and of the foregoing, and (ii) any other business, technical or engineering information or data (including third-party information) disclosed or made available to Recipient by or on behalf of Disclosing Party which by the nature of the information disclosed or the manner of its disclosure would be understood by a reasonable person to be confidential and/or proprietary, whether furnished before, on, or after the Effective Date.Upon the request of the Disclosing Party, Recipient will return or destroy all Confidential In formation of the Disclosing Party that is in its possession. Recipient’s obligations with respect to Disclosing Party’s Confidential Information shall survive termination of this Agreement for a period of three (3) years; provided, that Recipient’s obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law.
- Exceptions: Confidential Information excludes: (i) information that was known to the Recipient without a confidentiality restriction prior to its disclosure by the Discloser; (ii) information that was or becomes publicly known through no wrongful act of the Recipient; (iii) information that the Recipient rightfully received from a third party authorized to make such disclosure without restriction; (iv) information that has been independently developed by the Recipient without use of the Discloser’s Confidential Information; and (v) information that was authorised for release in writing by the Discloser.
- Confidentiality Obligations: The Recipient will use the same degree of care and resources as it uses for its own confidential information of like nature (but no less than reasonable care) to protect the Discloser’s Confidential Information from any use or disclosure not permitted by this Agreement or authorized by the Discloser. The Recipient may disclose the Discloser’s Confidential Information to its employees, Affiliates and service providers who need access to such Confidential Information to effect the intent of this Agreement, provided that they are bound by confidentiality obligations no less restrictive than those herein. Recipient shall be responsible for any breach of this section by its employees, Affiliates and service providers.
- Disclosure Required by Law: The Recipient may disclose Confidential Information to the extent required by court or administrative order or law, provided that the Recipient provides advance notice thereof (unless requested or ordered not to do so by law enforcement or a court) and reasonable assistance, at the Discloser’s cost, to enable the Discloser to seek a protective order or otherwise prevent or limit such disclosure.
- Injunctive Relief: A breach of the Recipient’s confidentiality obligations may cause irreparable damage, which money cannot satisfactorily remedy, and therefore the Discloser may seek injunctive relief for any threatened or actual breach of Section 5.3 without the need to prove damages or post a bond or other surety.
- Data Security: Peaxy will maintain and enforce an information security program for the protection of Customer Data, including commercially reasonable administrative, physical, and technical measures designed to (i) protect the confidentiality, availability and integrity of Customer Data, (ii) restore the availability of Customer Data in a timely manner in the event of a physical or technical incident, and (iii) ensure the proper disposal and destruction of Customer Data. We will notify you, as required by applicable law, of any actual or reasonably suspected breach of security known to us that has resulted in, or creates a reasonable risk of, unauthorized access to Customer Data without undue delay, consistent with the legitimate needs of law enforcement and with any measures necessary to determine the scope of the breach and to restore the integrity of the Services.
- Non-Peaxy Equipment: The Services are provided over the internet via networks only part of which are within Peaxy control. Peaxy obligations in Section 5.6 apply only to networks and equipment within Peaxy control, and Peaxy is not responsible for any delay, loss, interception, or alteration of Customer Data on a network or infrastructure outside of Peaxy control.
Section 6: Term and Termination
- Term: All Services subscriptions specified in Customer initial Order will run for the subscription period set forth therein. If Customer adds subscriptions after the beginning of a subscription period, their initial term will be the remainder of the then-current subscription period, unless otherwise set forth in the Order. All subscriptions will automatically renew for additional subscription pe riods of one year (or for such different renewal term as set forth in the renewal Order), unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the relevant subscription period. This Agreement will remain in effect until all license subscriptions have expired or the Agreement has been terminated as provided below.
- Termination: Either party may terminate the Agreement (i) by sending a notice of non-renewal as provided above, (ii) if the other party has materially breached this Agreement, upon written notice to the breaching party of the breach and, if such breach is curable, an opportunity to cure of at least 30 days, or (iii) upon written notice to the other party if the other party becomes the subject of a petition in bankruptcy or another proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If Customer materially breaches this agreement, Peaxy may, without limitation of other rights and remedies, temporarily suspend or terminate Customer access to the Services or withhold further performance of Peaxy obligations under this Agreement.
- Effect of Termination: On expiration or termination of this Agreement: (i) all applicable subscrip tion licences and other rights granted to Customer will immediately terminate; (ii) a party’s rights, remedies, obligations (including payment obligations) and liabilities that have accrued up to the date of termination shall not be affected; (iii) unless Customer has terminated the Agreement for Peaxy material breach as provided above, Peaxy will not be obligated to refund any prepaid and unused fees; and (iv) subject to Section 6.5, Recipient shall, at the request of Discloser, delete or destroy Discloser’s Confidential Information in its possession or control. Notwithstanding the foregoing, Recipient may retain Discloser’s Confidential Information (a) to the extent required by law or governmental authority, or (b) that is automatically stored in accordance with Recipient’s generally applicable backup policies (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
- Survival: Sections 1, 4, 5, 6, 7 and 8 will survive any expiration or termination of the Agreement.
- Access to Customer Data: Customer Data may be exported at any time during the term of this Agreement. Peaxy will not delete Customer Data from our production environment for up to 90 days after termination or expiration of the Agreement and may assist Customer with exporting Customer Data during such period at Peaxy standard hourly consulting rate. After that 90-day period, Peaxy will have the right to delete all Customer Data and will have no further obligation to make it available to Customer. Should Customer desire longer storage of Customer Data, paid archival Services may be available.
Section 7: Limitations of Liability
- No Consequential Damages: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY WITH RESPECT TO ANY PRODUCT, SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL THEORY USED TO MAKE A CLAIM, AND WHETHER OR NOT BASED UPON THE PARTY’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS, ALTERATION, CORRUPTION, OR BREACH OF DATA, COST OF REPLACEMENT, DELAYS, LOST PROFITS, OR SAVINGS ARISING OUT OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PEAXY SOLUTIONS, OR FOR ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL, EVEN IF THE PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
- Cap: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ANY CLAIM OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, STRICT LIABILITY, PRODUCT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY OR RESULTING FROM THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE LESSER OF (A) THE FEES PAID TO PEAXY BY CUSTOMER FOR THE CURRENT STATEMENT OF WORK / PROPOSAL OR (B) THE ANNUAL PEAXY SOLUTION SOFTWARE LICENSE FEES PAID TO PEAXY BY CUSTOMER.
Section 8: General Provisions
- Technical Support: Peaxy shall provide Technical Support to Customer consisting of error correction, answering technical and user experience questions as well as addressing technical issues that may arise. Support questions should come through the Customer’s support contact concerning the use of the Peaxy Solution(s). Peaxy will at a minimum respond in writing within one business day to all Technical Support requests.
- Marketing: Peaxy reserves the right to include the Customer logo on www.peaxy.net for two years after the termination of this agreement.
- Access to Content: Customer shall provide Peaxy with information, assistance and materials, including access to Customer Content, necessary for Peaxy to configure and deploy the Peaxy Solution(s) and/or the PoC. Customer authorizes Peaxy to use, copy, store, process, retrieve, and display such information and materials solely in connection with providing access to the Peaxy Solution(s) and/or the PoC and to provide Technical Support. Peaxy shall not disclose Customer Content without Customer’s consent unless (and only to the extent) required to do so pursuant to applicable law. At the conclusion of the Term, Peaxy will decommission the Peaxy Solutions(s) and/or the PoC and delete Customer Content from its servers.
- Order of Precedence: In the event of any express conflict or inconsistency, the order of precedence shall be: (i) Customer Order; (ii) these terms (including any annexes or exhibits hereto); and (iii) the Documentation.
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