This Center Subscription Agreement (the "Center Subscription Agreement") is a binding agreement between Autymate, Inc. ("Autymate") and you, The UPS Store® franchisee (the "Center Account Holder") and governs along with the applicable Order Form (defined below) accepted by Autymate, the Center Account Holder's access to and use of the The UPS Store implementation of the Autymate Platform (as described below) and related services. Together, this Center Subscription Agreement and the applicable Order Form constitutes the full legal agreement between Center Account Holder and Autymate (the "Agreement"). Center Account Holder must agree to all of the terms of this Center Subscription Agreement to use any service set forth in this Agreement. PLEASE NOTE, AUTYMATE’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE SOFTWARE AS A SERVICE AGREEMENT ENTERED BETWEEN THE UPS STORE, INC. AND AUTYMATE (“TUPSS AGREEMENT”). IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE TUPSS AGREEMENT, THE TERMS AND CONDITIONS OF THE TUPSS AGREEMENT CONTROL AND SHALL SUPERSEDE ANY CONFLICTING PROVISIONS OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REDUCE AUTYMATE’S OBLIGATIONS UNDER THE TUPSS AGREEMENT.BY ACCESSING OR USING THE AUTYMATE PLATFORM AND/OR RELATED SERVICES, REGISTRATION INFORMATION TO OPEN AN ACCOUNT, CENTER ACCOUNT HOLDER ACKNOWLEDGES THAT CENTER ACCOUNT HOLDER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THE AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED IN THIS Center Subscription Agreement). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT ACCOUNT HOLDER ACCEPTS THIS AGREEMENT BY ONE OF THE METHODS DESCRIBED ABOVE.
The "Autymate Platform" as used in this Agreement collectively means and refers to Autymate's hosted software platform and related services and documentation ("Documentation") that provides Center Account Holder with access to specific products and services designed to connect applications and automate workflows. Included within the Autymate Platform is the ability to use and create automated workflows to enable one or more actions carried out across multiple software applications based on the occurrence of a designated trigger event ("Autymations"). Each Autymation has a unique ID. Autymations may use one or more software scripts or application programming interfaces to enable data transfer between software applications ("Connectors"). Connectors can be developed by Autymate, by Center Account Holder, or by third-party application services providers. The scope of Center Account Holder's subscription plan for the Autymate Platform, as outlined in the applicable order form(each an "Order Form"), is entered into between Center Account Holder and Autymate. In the event of any inconsistency between the Order Form and the terms of this Center Subscription Agreement, the Order Form will prevail, provided that the Order Form explicitly states the section of this Center Subscription Agreement that such subsequent agreement amends and restates. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
(a) Autymate warrants that, during the applicable term of Center Account Holder's subscription to use the Autymate Platform (the "Subscription Term"), the Autymate Platform will function in accordance with the Documentation and the TUPSS Agreement in all applicable respects. Autymate hereby represents and warrants the Autymate Platform will perform substantially per the applicable Documentation and the TUPSS Agreement. Should a failure to conform to this warranty be reported to Autymate during the warranty period be reported to Autymate, Center Account Holder's sole and exclusive remedy shall be for Autymate to correct the nonconformance within a reasonable period of time. WITH RESPECT TO ANY BETA, TRIAL, OR NONPAID SUBSCRIPTIONS TO THE AUTYMATE PLATFORM, THOSE VERSIONS ARE PROVIDED AS "AS IS" AND NO WARRANTY OR INDEMNIFICATION PROVISIONS OF THIS AGREEMENT WILL APPLY TO SUCH SUBSCRIPTION USES OF THE AUTYMATE PLATFORM, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT.
(b) Autymate will maintain data security protections in accordance with the Autymate Security Overview located at www.autymate.com/legal/security and the TUPSS Agreement, and will undertake commercially reasonable efforts to make the Autymate Platform available to Center Account Holder.
(c) Notwithstanding the preceding, Autymate reserves the right to suspend Center Account Holder's access to the Autymate Platform in the event Center Account Holder or its users are in breach of this Agreement or are otherwise engaging in any actions that threaten the security or stability of the Autymate Platform.
(d) Autymate may interrupt access to the Autymate Platform (i) for scheduled maintenance typically performed during the hours of 10 pm to 6 am PDT, beginning Friday evening, and typically lasting no more than two hours; (ii) emergency or unscheduled maintenance of up to 120 minutes per calendar month.
(e) Center Account Holder acknowledges and agrees that Center Account Holder and its authorized users' use of the Autymate Platform depends on access to telecommunications and Internet services. Center Account Holder shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Autymate Platform, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the preceding. Autymate shall not be responsible for any loss or corruption of content, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
(a) Center Account Holder shall pay all applicable fees, as specified in each Order Form or as otherwise agreed upon with Autymate if there is no Order Form. Except as otherwise specified or in an Order Form: (i) fees are based on the scope of the plan for the Autymate Platform purchased and not actual usage; (ii) fees paid are non-refundable, and payment obligations are non-cancelable; and (iii) the scope of the plan purchased and the applicable fees cannot be reduced during the relevant Subscription Term. Subscription fees are based on annual periods . For purposes of this Agreement and the applicable Order Form, an "Autymate Integration Transaction" occurs each time an Autymation performs a task (i.e., each time an Autymation makes an API call).
(b) Fees will be invoiced per the relevant Order Form or as otherwise specified by Autymate if there is no Order Form. Fees are due net thirty (30) days from the invoice date unless otherwise stated in the Order Form or otherwise specified by Autymate. Such charges shall be made in advance, either annually or under any different billing frequency stated in the applicable Order Form. Center Account Holder is responsible for providing complete and accurate billing and contact information to Autymate and notifying Autymate of any changes thereto.
(c) If Autymate does not receive any amounts invoiced hereunder by the due date, then at Autymate's discretion: (a) such charges may accrue late interest at the lower of the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid; and/or (b) Autymate may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the immediately preceding paragraph above, including requiring full payment in advance of the renewal period. Center Account Holder shall pay on demand all of Autymate's reasonable attorney fees and other costs incurred by Autymate to collect any fees or charges due to Autymate under this Agreement following Center Account Holder's breach of this Section 3.
(d) Unless otherwise stated, Autymate fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Center Account Holder is responsible for paying all Taxes associated with Center Account Holder's purchases hereunder. Suppose Autymate has the legal obligation to pay or collect Taxes for which Center Account Holder is responsible under this paragraph. In that case, the Center Account Holder shall indemnify Autymate for such Taxes, and the appropriate amount shall be invoiced to and paid by Center Account Holder unless Center Account Holder provides Autymate with a valid tax exemption certificate authorized by the proper taxing authority. Autymate is solely responsible for taxes assessable against Autymate based on Autymate's net income.
Compliance with Laws; Restrictions
Center Account Holder will not, will not agree to, and will not authorize or encourage any third party to, directly or indirectly:
(a) interfere or attempt to interfere with the proper working of the Autymate Platform or any other Center Account Holder's use of the Autymate Platform, including through an abuse of server capacity;
(b) use the Autymate Platform for any fraudulent or unlawful purpose;
(c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Autymate Platform or any software, documentation or data related to the Autymate Platform ("Software"), provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable statute);
(d) sell, copy, alter, modify, or create derivative works of the Autymate Platform or otherwise use the Autymate Platform in any way that violates the use restrictions contained in this Agreement;
(e) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Autymate Platform;
(f) remove or otherwise alter any proprietary notices or labels from the Autymate Platform or any portion thereof;
(g) bypass any measures Autymate may use to prevent or restrict access to the Autymate Platform (or other accounts, computer systems or networks connected to the Autymate Platform); or
(h) use the Autymate Platform in violation of any applicable local, state, national and foreign laws, treaty or regulation or a third party's proprietary or contractual rights. Center Account Holder shall ensure that all its authorized users comply with the terms and conditions and be responsible for all of such authorized users' activity connected with the Autymate Platform. Center Account Holder further acknowledges and agrees that Center Account Holder's subscription to the Autymate Platform is limited to use for Center Account Holder's business operations. No right is granted hereunder to use the Autymate Platform to benefit third parties in a service bureau, time-sharing, or managed service provider arrangement. Autymate competitors or individuals acting on behalf of an Autymate competitor may not access the Autymate Platform. The Autymate Platform may not be accessed for any benchmarking, comparative or competitive purposes unless preauthorized in writing by Autymate. Center Account Holders hereby warrants that it will comply with and be bound by any end-user agreements that govern the installation and use of any third-party software, applications, or platform that is connected with or related to the use of Autymate Platform, including but not limited to any the Connectors, applications or software used in the Autymations, and any other applications and platforms that access to or connected with Autymate Platform.
Representations and Warranties; Disclaimer
Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full corporate power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the Term of this Agreement all necessary licenses, authorizations, approvals, and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules, and regulations.
OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION, AUTYMATE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. AUTYMATE MAKES NO WARRANTIES WITH RESPECT TO THE RESULTS OF OR USE OF THE AUTYMATE PLATFORM AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
(a) Center Account Holder shall defend, indemnify and hold harmless Autymate, its affiliates and each of its and its affiliates' officers, directors, agents and employees from all liabilities, claims, and expenses (including reasonable attorneys' fees) paid or payable to an unaffiliated third party, that arise from any third party claim (i) alleging that any Center Account Holder Data (as defined in Section 8(a) below) infringes or misappropriates such third party's intellectual property rights or proprietary rights, or (ii) that Center Account Holder's use of the Autymate Platform is in violation of this Agreement, the Documentation, or applicable law (each a "Claim against Autymate"). Center Account Holder's obligations under this Section 6(a) are contingent upon: (x) Autymate promptly gives Center Account Holder written notice of the Claim against Autymate, (y) Autymate gives Center Account Holder sole control of the defense and settlement of the Claim against Autymate (except that Center Account Holder may not settle any Claim against Autymate unless Center Account Holder unconditionally releases Autymate of all liability), and (z) Autymate gives Center Account Holder all reasonable assistance in the defense and settlement of the Claim against Autymate (at Center Account Holder's sole expense).
(b) Autymate shall defend, indemnify and hold harmless Center Account Holder from liabilities, claims, and expenses (including reasonable attorneys' fees) paid or payable to an unaffiliated third party that arises from or related to any third party claim brought against Center Account Holder by an unaffiliated third party to the extent that it is based upon a third party claim that the Autymate Platform (excluding the Center Account Holder Data, and the Autymations or Connectors created by Center Account Holder) infringe or misappropriate the intellectual property rights of such third party, and will pay any costs, damages and reasonable attorneys' fees attributable to such claim. Autymate's obligations under this Section 6(b) are contingent upon: (i) Center Account Holder providing Autymate with prompt written notice of such claim; (ii) Center Account Holder providing reasonable cooperation to Autymate, at Autymate's expense, in the defense and settlement of such claim; and (iii) Autymate having sole authority to defend or settle such claim. If Autymate's right to provide the Autymate Platform is enjoined or in Autymate's reasonable opinion is likely to be enjoined, Autymate may obtain the right to continue providing the Autymate Platform, replace or modify the Autymate Platform so that they become non-infringing, provided that the replacement or modification functions substantially similar to the Autymate Platform, (in which case, Autymate shall be relieved of all liability under this clause if Center Account Holder fails to implement such replacement or modification promptly), or, if such remedies are not reasonably available, terminate this Agreement without liability to Center Account Holder and refund any remaining fees to Center Account Holder. THE FOREGOING STATES THE ENTIRE OBLIGATION OF AUTYMATE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE AUTYMATE PLATFORM. Autymate shall have no liability under this Section 6(b) to the extent that any third-party claims described herein are based on (i) use of the Autymate Platform in a manner that violates this Agreement or the written instructions given to Center Account Holder by Autymate or that is not in accordance with this Agreement or the Documentation; (ii) any information, technology, materials or data (or any portions or components of the preceding) not created or provided by or on behalf of Autymate, (iii) any portion of the Autymate Platform that was modified after delivery by Autymate, provided such modification was not at the direction of or on behalf of Autymate; (iv) combination of the Autymate Platform with other products, processes or materials not provided by Autymate (where the claim arises from or relates to such combination) except for those products, processes or materials with which the Autymate Platform is intended to be combined; or (v) where Center Account Holder continues alleged infringing activity after being notified in writing thereof or after being given notice of modifications that would have avoided the alleged infringement.
Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S OR ITS AFFILIATES' TOTAL LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED IN THE AGGREGATE THE AMOUNTS PAID AND/OR PAYABLE BY THE ACCOUNT HOLDER OR THE RESELLER, AS APPLICABLE, TO AUTYMATE HEREUNDER FOR ACCOUNT HOLDER'S SUBSCRIPTION TO THE AUTYMATE PLATFORM IN THE TWELVE MONTH PERIOD ENDING ON THE DATE SUCH DAMAGES, LOSSES OR CAUSES OF ACTION AROSE. AUTYMATE SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ACCOUNT HOLDER'S USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE, OR WEBSITES EXCEPT THOSE THIRD PARTY PRODUCTS WITH WHICH THE AUTYMATE PLATFORM IS INTENDED TO FUNCTION.
(a) Center Account Holder Data
As between the parties, Center Account Holder shall retain all right, title, and interest in and to all documents, messages, graphics, logos, images, files, data, and other information transmitted through the Autymate Platform by Center Account Holder (collectively, the "Center Account Holder Data"), provided, however, that Center Account Holder hereby grants to Autymate a worldwide, royalty-free, fully sublicensable, non-exclusive license to use the Center Account Holder Data solely to implement, maintain and improve the Autymate Platform and fulfill its obligations hereunder. Notwithstanding the preceding, Center Account Holder Data does not include non-identifiable aggregate data and usage statistics compiled by Autymate in connection with Center Account Holder's use of the Autymate Platform, which data and statistics each party may use in its discretion (but which Autymate may not disclose to any third party in a manner that identifies Center Account Holder in connection therewith), and which Autymate shall make available to Center Account Holder on an ongoing basis during the term hereof.
(b) Autymations and Connectors
Autymate will own and retain all right, title, and interest in and to the Autymations or the Connectors and all derivatives to it on the Autymate Platform, excluding any Autymations or Connectors created by Center Account Holder. Autymate grants to Center Account Holder a non-exclusive license to make, use, and share Autymations and Connectors with other Autymate users. Autymations and Connectors created by Center Account Holder are private by default, meaning that Center Account Holder can decide whether to share such private Autymations with certain users with the Autymate Platform; however, Center Account Holder can make Autymations created by it public, meaning that any Autymate user can view, copy and modify such Autymations and Connectors. Autymate has no right to resell or reuse any private Autymation or any private Connector. Center Account Holder grants Autymate an irrevocable, perpetual, transferable and sub-licensable, and worldwide license under any rights Center Account Holder owns in the Autymations and Connectors created by Center Account Holder marked public to use, modify and distribute such Autymations and Connectors. Rights to use Autymations and Connectors not created by Center Account Holder will continue as long as Center Account Holder has an active subscription to the Autymate Platform.
(c) Autymate Platform
Autymate shall own and retain all right, title, and interest in and to the Autymate Platform, as well as any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Center Account Holder or any other party relating to the Autymate Platform, which is hereby assigned to Autymate. Subject to the terms of this Agreement and during the Term of this Agreement only, Autymate hereby grants to Center Account Holder a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, limited-term license (for internal use only) to use the Autymate Platform per this Agreement and the terms of the applicable Order Form. Except as otherwise expressly set forth herein, Autymate does not grant to Center Account Holder any license, express or implied, to the intellectual property of Autymate or its licensors.
"Confidential Information" shall mean (a) information relating to a party's (the "Disclosing Party") technology or business that is disclosed hereunder to the other party (the "Receiving Party"); or (b) any information designated in writing, or identified orally at the time of disclosure, by the disclosing party as "confidential" or "proprietary." Any statistics or other user data relating to the Autymate Platform which specifically identifies Center Account Holder shall be deemed Center Account Holder's Confidential Information. During the Term of this Agreement, and for two (2) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The preceding restriction does not apply to information that: (a) has been independently developed by the Receiving Party without the use of or access to the Disclosing Party's Confidential Information; (b) has become publicly known through no breach of this Section 9 by the Receiving Party; (c) has been rightfully received by the Receiving Party without obligation of confidentiality from a third party authorized to make such disclosure; (d) has been approved for release in writing by the Disclosing Party; (e) was known by the Receiving Party without obligation of confidentiality before receipt from the Disclosing Party; or (f) is required to be disclosed by a competent legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement before disclosure and assists in obtaining an order to protect the information from public disclosure (if legally permissible).
(a) The term of this Agreement and each applicable Subscription Term will be one (1) year unless otherwise outlined in the Order Form between Autymate and the Center Account Holder, governing Center Account Holder's subscription, unless terminated earlier per this Agreement (the "Term").
(b) The term of each subscription will continue for the period outlined in the applicable Order Form between Center Account Holder and Autymategoverning Center Account Holder's Subscription Term, unless terminated earlier per this Agreement. Each Subscription Term shall automatically renew for successive one (1) year periods at the negotiated rate in the TUPSS Agreement for Center Account Holder's subscription unless either party provides the other party written notice of non-renewal at least one hundred and eighty (180) days before the end of the then-current term.
(c) In the event of a material breach of this Agreement by either party, the other party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
(d) Upon termination or expiration, Autymate will make available Center Account Holder Data during a transition period as outlined in the TUPSS Agreement and then delete all transaction log data for Center Account Holder's account per Autymate retention policy. Also, Autymate may destroy Center Account Holder Data left in Autymate's system after termination or expiration of this Agreement upon Center Account Holder's written request.
(b) To the extent that Autymate is a Processor for Center Account Holder of Personal Data that is subject to certain Data Protection Laws and for which the Center Account Holder is the Controller (each as defined in the DPA), the EU Data Processing Addendum located at www.autymate.com/legal (the "DPA") is hereby incorporated into the Agreement to the processing of such Personal Data.
Choice of Law
This Agreement shall be governed by and construed per the laws of the State of Tennessee, without giving effect to principles of conflicts of law. Each party agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for Nashville, Tenn. Each party hereby consents and submits to such courts' personal and exclusive jurisdiction to litigate any such action. Each party shall have the right to pursue injunctive or other equitable relief at any time from a court of competent jurisdiction. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Attorneys' fees and costs will be awarded to the prevailing party upon conclusion.
Autymate may not assign, sublicense, or transfer any of its rights or delegate any of its duties under this Agreement except pursuant to the terms of the TUPSS Agreement. Autymate and Center Account Holder are independent contractors, and neither Autymate nor Center Account Holder is an agent, representative, or partner of the other. Autymate and Center Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. Neither party shall have any obligation for any employee-related benefits or withholding taxes applicable to the other party's personnel performing services under this Agreement. This Agreement sets forth the entire agreement between Autymate and Center Account Holder and supersedes all prior agreements (whether written or oral) concerning the subject matter set forth herein. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be in writing and shall be sent to the email address associated with the account (in the case of Center Account Holder) or to email@example.com (in the case of Autymate) by facsimile, electronic mail, or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the waiving party's rights. Suppose any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law. In that case, such provision will be severed and replaced with a new requirement that most closely reflects the original intention of the parties. The remaining provisions of this Agreement will remain in full force and effect