Master Subscription Terms and Conditions

Last modified December 8, 2022

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BY ACCEPTING THIS AGREEMENT OR USING THE AXONIFY PLATFORM (AS DEFINED BELOW), YOU AND THE ENTITY YOU REPRESENT (SUCH ENTITY, THE “CUSTOMER”) AGREE TO THESE TERMS AND CONDITIONS. YOU WARRANT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE THE AXONIFY PLATFORM.

Customer and Axonify Inc. (“Axonify”) hereby agree as follows:

1. Scope.

These Terms and Conditions will apply to Customer’s use of Axonify’s eLearning platform components, packaged professional services, content, products and offline components (collectively, “Axonify Platform”) ordered by Customer under an ordering document (including any online form) specifying the Axonify Platform components to be provided hereunder, substantially in the form attached as Schedule 1 (“Order”). These Terms and Conditions, including attached Schedules, and all Orders from time to time (collectively referred to as this “Agreement”) represent the parties’ entire understanding and agreement regarding the Axonify Platform and will supersede and control over any different or additional terms of any purchase order or other non-Axonify ordering document, and no terms included in any such purchase order or other non-Axonify ordering document will apply to the Axonify Platform. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order will prevail and govern to the extent necessary to remedy such inconsistency. All capitalized terms not defined herein will have the meanings attributed in the Order.

2. Grant of License, Use and Content.

2.1 During the Subscription Term set forth in an Order, Axonify grants to Customer a non-transferable, non-exclusive right and license to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Axonify Platform for the internal business purposes of Customer, subject to the terms of this Agreement. Each Order defines specific usage rights (“Usage Rights”), and Customer will at all times ensure that its use does not exceed its Usage Rights. Axonify will provide to the Customer throughout the Subscription Term, (i) technical support for the Axonify Platform in accordance with the support terms set forth in Schedule 2 and (ii) the Axonify Platform in accordance with Axonify’s Service Level Agreement set forth in Schedule 3.

2.2 For purposes hereof, “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with another entity, so long as such control exists. Any Affiliate of Customer will have the right to enter into Orders executed by such Affiliate and Axonify, and this Agreement will apply to each such Order as if such Affiliate were a signatory to this Agreement. With respect to such Orders, such Affiliate is deemed to become a party to this Agreement, and all references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order is a separate obligation of the Affiliate that executes such Order, and no other Customer entity has any liability or obligation under such Order.

2.3 As part of the Axonify Platform, Axonify has created a library of content (“Library”) which incorporates content developed by Axonify (“Axonify Content”) from time to time, and includes Third Party Content (as defined below). The Axonify Content is owned by Axonify, and is provided “as is”, and the Customer is solely responsible to ensure that the use of any content of the Library is appropriate for its own internal purposes, use and application. Axonify disclaims any warranty for the results of the use of the Library and the Axonify Content, that it will meet the Customer’s requirements or achieve any intended result, and all warranties arising from course of dealing, usage or trade practice.

2.4 The Axonify Platform permits Customer to access certain content that will be identified as originating from a third party (“Third Party Content”). All such Third Party Content is subject to the applicable third party’s terms and conditions that govern the utilization of such Third Party Content (“Third Party Terms”), in addition to this Agreement. Customer will comply with such Third Party Terms. Axonify does not endorse or sponsor any Third Party Content, provides all Third Party Content on an “as is” basis without any warranties of any kind, and will have no liability whatsoever arising from Customer’s use of any Third Party Content.

2.5 The Axonify subcontractor that will host the Axonify Platform and Customer Content (as defined below) will be either Google Cloud Platform or Amazon Web Services LLC (“Database Custodian“) and will house the Axonify Platform and Customer Content at facilities located within the USA unless as otherwise identified in the Order. Customer approves the use of Amazon or Google Cloud Platform as a subcontractor. Axonify may not change the Database Custodian to a subcontractor outside of the USA, unless previously agreed to in the Order, without prior written consent of Customer which shall not be unreasonably withheld or delayed. Axonify may switch between Amazon and Google Cloud Platform without prior written approval from the Customer.

3. Usage Restrictions and Representations.

3.1 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Axonify Platform or any software, documentation or data related to or provided with the Axonify Platform (collectively, “Software”); (ii) modify, translate, or create derivative works based on the Axonify Platform or Software; or copy, rent, lease, transfer, assign, sell, sublicense, distribute, offer in a service bureau, or otherwise make available to any third party, other than Users as permitted herein, the Axonify Platform or Software; (iii) use or access the Axonify Platform to build or support, and/or assist a third party in building or supporting, products or services competitive to Axonify; (iv) alter or remove any proprietary notices or labels from the Axonify Platform or Software; (v) otherwise use the Axonify Platform or Software in violation of applicable law or outside of the scope of the express rights granted herein; or (vi) knowingly or willfully use the Axonify Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with Axonify’s provision of the Axonify Platform.

3.2 With respect to data, information, material, messages or other content that Customer or any User uploads, shares or transmits via the Axonify Platform (“Customer Content”), Customer will not upload, share or transmit any Customer Content that (a) infringes the intellectual property rights or other rights of third parties, (b) contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs or code, (c) is libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age, (d) promotes or enables any illegal activity, or (e) contains any personal financial or medical information of any nature or any other non-public personally identifiable information that could be legally considered private or sensitive. If Customer uploads any Customer Content prohibited above, upon discovery, Axonify may, at its discretion, require Customer to remove such Customer Content immediately (and suspend Customer’s access to the Axonify Platform until removed) or purge such Customer Content from the Axonify Platform. Customer will be responsible for maintaining the security of its equipment and account access passwords used to access Axonify Platform through Customer’s account. Customer will be liable for all acts and omissions of its Users.

3.3 Axonify may immediately suspend, upon written notice to Customer and until remedied, Customer’s password, account, and access to the Axonify Platform if (i) Customer fails to make payment due within thirty business days after Axonify has provided Customer with notice of such failure; or (ii) Customer violates Section 2 or 3 of these Terms and Conditions. Any suspension by Axonify of the Axonify Platform under the preceding sentence will not relieve Customer of its payment obligations under this Agreement.

4. Proprietary Rights.

4.1 The Axonify Platform and Software and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to Axonify Platform and Software, all modifications, changes, enhancements, or additions thereto) and all intellectual property rights created by or in relation to the provision of support (collectively, “Axonify IP”), are owned by Axonify, and are deemed to be Confidential Information (as defined below) of Axonify. Except for the license identified in Section 2.1, nothing in this Agreement gives the Customer or its Users any right, title or interest in, to or under any of Axonify Platform or Software or any intellectual property rights therein or arising pursuant to the support and Axonify reserves all such rights. Customer may from time to time provide Axonify suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Axonify Platform. Axonify will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. Any rights not expressly granted herein are reserved by Axonify.

4.2 Customer will retain ownership of any Customer Content. Customer will be solely responsible for the accuracy, quality, content and legality of Customer Content, the means by which Customer Content is acquired and the transfer of Customer Content outside of the Axonify Platform. Except to the extent Customer or any Users make any Customer Content accessible to other users or the public through the Axonify Platform, Customer Content will be deemed to be Customer Confidential Information pursuant to Section 9 below. Customer represents and warrants that it has all rights necessary to upload the Customer Content to the Axonify Platform and to otherwise have such Customer Content used or shared, as applicable, by Axonify as part of the Axonify Platform and the Deliverables (as defined below).

4.3 Notwithstanding anything herein, Axonify will have the right to collect and derive aggregated and anonymous data relating to the use, results and performance of the Axonify Platform and related systems and technologies (“Performance Metrics”). Axonify will retain all right, title and interest in and to the Performance Metrics.

4.4 Customer shall own all right, title and interest in and to any and all content created or developed by Axonify, or by any third party consultants or independent contractors retained by Axonify in its sole discretion from time to time for purposes of, and as a result of, the provision of services under any Order entered into by the parties, which content is based on, uses or incorporates the Customer Content (collectively, the “Deliverables”). Upon receipt of all amounts owing under this Agreement with respect to the Deliverables, Axonify shall assign to the Customer ownership of all Deliverables and intellectual property rights therein and undertake such actions to make such assignments effective. The Customer shall grant to Axonify a non-exclusive, royalty-free right to use, access and modify the Deliverables with respect to the Customer’s use of the Axonify Platform.

5. Billing and Payment.

5.1 Customer will pay all fees set forth in an Order via cheque or electronic bank transfer. All fees are non-cancelable and non-refundable, except as expressly specified in Section 7.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Axonify’s income), even if such amounts are not listed on an Order. Customer will pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties in the Order.

5.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

5.3 If at any time Axonify determines that Customer is exceeding the Usage Rights, Axonify will notify Customer and Customer will bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Axonify’s notice, Axonify reserves the right to charge and Customer agrees to pay Axonify’s then-current usage fees for such overage.

6. Term and Termination.

6.1 This Agreement will commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, will remain in effect for so long as there are Orders in effect. The Subscription Term of each Order will automatically renew for additional successive periods of time equal to the length of the original Subscription Term, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.2 In the event of a material breach by either party, the non-breaching party will have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If Axonify terminates an Order for Customer’s material breach, all fees set forth on such Order are immediately due and payable. If Customer terminates for Axonify’s material breach, Customer shall only pay those fees that have accrued up to the date of its notice of termination and any unearned prepaid fees shall be forthwith paid by Axonify to the Customer.

6.3 Upon any termination or expiration of an Order, Customer’s right to access and use the Axonify Platform covered by that Order will terminate and Customer will delete all copies of any content obtained through the Axonify Platform. Notwithstanding the foregoing, at Customer’s request if received within 30 days of termination of the Order, Axonify will permit Customer to access the Axonify Platform solely to the extent necessary for Customer to retrieve a file of Customer Content then in Axonify’s possession. Customer acknowledges and agrees that Axonify has no obligation to retain Customer Content and that Axonify will have the right to irretrievably delete and destroy Customer Content after 30 days following the termination of this Agreement.

7. Representations, Disclaimer of Warranties, Indemnities.

7.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. Axonify warrants to Customer that it will (a) provide the Axonify Platform substantially in accordance with its documentation under normal use; and (b) provide the Axonify Platform in a manner consistent with generally accepted industry standards. Customer must notify Axonify of any warranty deficiencies within 30 days from performance of the relevant Axonify Platform in order to receive warranty remedies.

7.2 For breach of the express warranty in 7.1 set forth above, Customer’s exclusive remedy will be the re-performance of the deficient component of the Axonify Platform. If Axonify cannot re-perform such deficient component as warranted, Customer will be entitled to recover a pro rata refund of any prepaid fees therefor (based on the period of time that would have remained in the applicable Subscription Term), and such refund will be Axonify’s entire liability.

7.3 The Axonify Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Axonify’s reasonable control, but Axonify will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Axonify Platform.

7.4 Axonify will defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against Customer by a third party alleging that the use of the Axonify Platform (for clarity, excluding Customer Content and Third Party Content) as contemplated hereunder infringes the intellectual property rights of a third party, and Axonify will pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided that Customer (a) promptly gives written notice of the Claim to Axonify; (b) gives Axonify sole control of the defense and settlement of the Claim (provided that Axonify may not settle any Claim unless it unconditionally releases Customer of all liability under the Claim); and (c) provides to Axonify, at Axonify’s cost, all reasonable assistance. The foregoing indemnity will not apply to any Claim based upon or arising from (i) any use of the Axonify Platform outside the scope or in violation of this Agreement, (ii) any modification of the affected component of the Axonify Platform or (iii) a combination of the Axonify Platform with any content or other technology not provided by Axonify, to the extent the Claim relates to such combination. If the use of the Axonify Platform by Customer has become, or in Axonify’s opinion is likely to become, the subject of any claim of infringement, Axonify may at its option and expense (A) procure for Customer the right to continue using and receiving the Axonify Platform as set forth hereunder, (B) replace or modify the Axonify Platform to make it non-infringing with at least equivalent functionality; or (C) if options (A) and (B) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees (based on the period of time that would have remained in the applicable Subscription Term).

7.5 Customer will indemnify Axonify, and defend at its expense any Claim brought against Axonify arising, from any Customer Content and its use in connection with the Axonify Platform or the Deliverables, or Customer’s use of the Axonify Platform in violation of this Agreement, or use of Third Party Content in violation of any Third Party Terms, and Customer will pay all costs and damages finally awarded against Axonify by a court of competent jurisdiction as a result of any such Claim; provided that Axonify (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Axonify of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.

7.6 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE AXONIFY PLATFORM IS PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, AND AXONIFY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE AXONIFY PLATFORM, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. AXONIFY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE AXONIFY PLATFORM OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE AXONIFY PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AXONIFY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE AXONIFY PLATFORM WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE AXONIFY PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS.

8. Limitation of Liability.

EXCEPT FOR LIABILITY ARISING FROM SECTION 7.4, 7.5 OR A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR (A) ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR BUSINESS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES); OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS.

9.Confidential Information.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except to perform its obligations hereunder) or divulge to any third person any such Confidential Information. Axonify will restrict access to Customer’s Confidential Information to those Axonify employees, consultants, independent contractors and/or subcontractors as is necessary to provide the services pursuant to any Order. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. If the Receiving Party is required by law to make any disclosure of such Confidential Information, it may do so to the extent of such requirement, provided that it first gives written notice to the Disclosing Party thereof (if legally permitted).

10. Notices.

Axonify may give notices to Customer by electronic means of transmission, and upon receipt such transmission shall be deemed delivery of an original. Customer may give notices to Axonify by electronic means of transmission, emailed to John Vukovic <jvukovic@axonify.com> and upon receipt such transmission shall be deemed delivery of an original.

11. General Provisions.

11.1 During the term of this Agreement, Axonify will maintain, at its own expense, the following types of insurance coverage, on standard policy forms:

Commercial General Liability Insurance (equivalent to public and product liability insurance) including contractual liability coverage, with coverage for products liability, completed operations, property damage and bodily injury, including death, with an aggregate limit of no less than $2,000,000; and

Employers Liability insurance with limits not less than $1,000,000 per incident/per employee.

Upon Customer’s request, Axonify agrees to deliver to Customer a certificate(s) of insurance evidencing the coverage specified above. Axonify will be solely responsible for any deductibles.

11.2 Neither party is liable for any failure or delay in performance caused by circumstances beyond its control, including but not limited to acts of God, fires, war, governmental action or terrorism.

11.3 Upon express written consent from Customer, Axonify may use Customer’s name and logo to identify Customer as a customer of Axonify on Axonify’s website, and as a part of a general list of Axonify’s customers for use and reference in Axonify’s corporate, promotional and marketing literature. Additionally, upon express written consent from Customer, Axonify may issue a press release identifying Customer as an Axonify customer and describing Customer’s intended utilization and the benefits that Customer expects to receive from use of Axonify’s services. The content of any press release identifying Customer as a customer of Axonify will be subject to Customer’s prior approval.

11.4 Any action or dispute related to this Agreement will be governed in accordance with the laws of the Province of Ontario, Canada, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario, Canada, and all courts competent to hear appeals there.

11.5 This Agreement (including all Order(s)) represents the parties’ entire understanding relating to the Axonify Platform, and supersedes any prior or contemporaneous, conflicting or additional communications. Customer acknowledges that this Agreement is a contract between Customer and Axonify, even though it may be electronic and not physically signed by Customer and Axonify, and it governs Customer’s use of the Axonify Platform and takes the place of any prior agreements between Customer and Axonify. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

11.6 No joint venture, partnership, employment, or agency relationship exists between Axonify and Customer as a result of this Agreement or use of the Axonify Platform. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required for an assignment of this Agreement as a whole to an Affiliate or a successor to all or substantially of its assets or business related to this Agreement. Any purported assignment in violation of this Section will be void.