End User Agreement
Last Updated Jan 1st, 2023
This End User Agreement (“Agreement”) governs the purchase and use of Auxin’s enterprise Software-as-a-Service platform for physical security, and is entered into between Six Hats Labs Incorporated (“Auxin”) and you, the end customer and user of the Products (“Customer”), either in connection with a purchase of the Products or use of the Products for evaluation purposes as part of a free trial. The customer is under no obligation to purchase the evaluation Products used in a free trial and will only be invoiced or charged for Products not purchased or returned following the expiration of the trial period.
By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, executing a Purchase Order that references this Agreement, or providing another form of electronic acceptance, Customer agrees to be bound by the terms of this Agreement. If Customer and Auxin have executed a written agreement governing Customer’s access to and use of the Products, then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”). Auxin reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of: (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Products. Auxin and Customer hereby agree as follows.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“Customer Data” means all data provided by Customer to Auxin by means of the Products. Customer Data does not include Usage Statistics (defined below.)
“Documentation” means the online documentation regarding the Hardware, available at https://docs.auxin.io/.
“DPA” means the Data Protection Agreement available at https://auxin.io/legal/dpa or other negotiated data protection agreement, entered into between Auxin and Customer.
“Firmware” means the software developed and maintained by Auxin that is stored on the Hardware and enables the basic functioning of the Hardware and its communication with the Hosted Software.
“Hardware” means the Auxin hardware products, including but not limited to, Auxin Reader Pro, Auxin Controller, Mobile and Keycards, and other units manufactured by Auxin.
“Hosted Software” means Auxin’s Software-as-a-Service solution, currently known as “Auxin Dashboard,” and related infrastructure made available to Customer to manage and configure the Hardware.
“License” has the meaning ascribed to it in Section 2.1.
“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.
“Partner” means a third-party authorized by Auxin to resell the Products, to whom Customer has delivered a Purchase Order for such Products.
“Products” means, collectively, the Software, Hardware, Usage Statistics, Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.
“Purchase Order” means each order document submitted to Auxin by a Partner on behalf of Customer, and accepted by Auxin, indicating Partner’s firm commitment to purchase the Products for the prices listed thereon.
“Service Level Agreement” means any Service Level Agreement agreed upon by Auxin and Customer.
“Software” means the Firmware and Hosted Software.
“Software License Plan” means the type of license plan selected with according features: https://auxin.io/pricing.
“Subscription”: means the recurring license paid for using Auxin.
“Support” means the technical support services and resources available at https://help.auxin.io/hc/en-us.
“Usage Statistics” means routine information regarding from Customer’s use of the Products, including information automatically collected through the Software, such as a User’s IP address, browser type, and how the User interacts with the Software, as well as Hardware-related performance statistics and related data. For clarity, Usage Statistics does not constitute Customer Data.
“Users” means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products on Customer’s behalf.
2. License and Restrictions
2.1. License to Customer. Subject to the terms of this Agreement, Auxin grants Customer a royalty-free, nonexclusive, transferable (subject to Section 13) worldwide right during each License Term to use the Software, subject to the terms of this Agreement (“License”). Customer must purchase Licenses to use the Software for at least the number and type of Hardware units it manages with the Software, however Customer may authorize an unlimited number of Users to access and use the Software. If Customer purchases additional Licenses, either in connection with the purchase of additional Hardware units or renewal of Licenses for existing Hardware units, the overall License Term will be modified such that the License Term for all Licenses purchased will terminate on the same date. The Products are not intended to be used as part of any life-saving or emergency systems, and Customer will not use the Products in any such environment.
2.2. License to Auxin. During the License Term, Customer will transfer Customer Data to Auxin while using the Products. Customer grants Auxin a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to develop and maintain the Products and provide them to Customer. Customer represents and warrants that it possesses the necessary rights and authority to grant Auxin the rights set forth in this Section 2.2 with respect to Customer Data.
2.3. Restrictions. Customer will not: (i) use (or allow a third party to use) the Products in order to monitor their availability, security, performance, or functionality, or for any other benchmarking or competitive purposes (other than for routine product comparison purposes) without Auxin’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit the Products; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products or any of their components; or (iv) use the Products to conduct any fraudulent, malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations (each of (i) through (iv), a “Prohibited Use”).
3. Costs and Fees; Subscription, and Cancellation
3.1. Costs and Fees.
3.1.1. Hardware Costs. You will be charged for Auxin Hardware at the time of purchase unless otherwise agreed upon in writing by you and Auxin or Partner. Once charged, your Hardware will be subject to the Hardware Warranty and Return policy included in Section 4 of these Terms. This charge is exclusive of any fees you incur in the installation of Auxin Products and Software license charges and fees.
3.1.2. Installation Costs: Auxin relies on Partners for installation services. Any services around installation are provided by Partners.
3.1.3. Software License Fee: You will be charged for your Auxin subscription immediately upon the purchase of your Auxin system. The charges will e.g. correspond with the number of access points at your location.
3.1.4. Software License Upgrade: You may upgrade your Auxin Subscription to the next level of Software License Plan once you exceed your license quota based on your initial Software License Plan. Auxin reserves the right to upgrade your Software License Plan automatically and without prior notice once you exceed your plan quota.
3.1.5. Taxes and Fees: For EU customers no VAT has been registered.
3.2. Subscription. Auxin offers a 30-Day return window of the Auxin Hardware. If for any reason Auxin does not fit your needs, please contact firstname.lastname@example.org to cancel your subscription and request to return your Hardware within 30 days of the date of delivery and to request a refund of the initial billed amount at the time of purchase of the Subscription. Please see Section 4.4 below for additional information about Returns.
You will be charged for your Auxin Subscription monthly or annually (depending on your selection at the time of purchase) as of the date of purchase of the Subscription, to the credit card associated with your Account (your “Payment Method”). In the event your Payment Method is not accepted or declined, you will nevertheless continue to incur monthly Subscription fees.
In the event there is a dispute as to Subscription fees incurred by Customer after the 30-Day Trial, Auxin, in Auxin’s sole discretion and determination, may issue such Customer a credit or discount in an amount to be determined by Auxin, in Auxin’s sole discretion, or any other concession as determined by Auxin in Auxin’s sole discretion.
In the event that a Customer has past-due Subscription fees that have remained unpaid for sixty (60) days or longer, Auxin may immediately terminate the Customer’s access to the Products in full or in part, definitely or indefinitely, with or without notice to the Customer, in Auxin’s sole discretion.
Upon elapsing the initial term of the Agreement, the term will be automatically renewed on the anniversary of the Effective Date for additional renewal terms equal to the duration of the Initial Term specified in the initial order, unless either party gives written notice of non-renewal to the other party at least 30 days prior to the end of the Initial Term or any Renewal Term hereof.
Auxin reserves the right to change fees upon thirty (30) days of written notice before each Renewal Term.
Cancellations require 30 days of written notice by the “Account Owner” to email@example.com.
Cancellations will be in accordance with the terms as outlined in the license agreement.
If there is an existing credit on the account, the cancellation will take effect upon the expiry of the credits. Any Subscription fees already incurred before the cancellation date will not be refunded to you.
There are no refunds of credits on accounts.
If the shipment date of your Auxin Hardware is more than 30 days prior to the date of cancellation, the Hardware is nonrefundable. Please see the Hardware Warranty and Return terms in Section 4 below for additional information.
4. Hardware warranties; Returns
4.1. General. Auxin represents to the original purchaser and user of the Hardware that, for five (5) years, or for the period set forth as otherwise set forth in the applicable Documentation from the date of shipment to the location specified on the Purchase Order, the Hardware will be substantially free of defects in materials and workmanship (“Hardware Warranty”).
4.2. Remedies. Customer’s sole and exclusive remedy and Auxin’s (and its suppliers’ and licensors’) sole and exclusive liability for a breach of the Hardware Warranty will be, in Auxin’s sole discretion, to replace the non-conforming Hardware. Replacement may be made with a new or refurbished product or components. If the Hardware or a component within it is no longer available, then Auxin may replace the Hardware unit with a similar product of similar function. Any Hardware unit that has been replaced under the Hardware Warranty will be covered by the terms of the Hardware Warranty for the longer of (a) 90 days from the date of the delivery, or (b) the remainder of the original Hardware Warranty period.
4.3. Exclusions. The Hardware Warranty does not extend to any non-Auxin proprietary equipment or end-of-life equipment. These would include the door locks, components on the door locks, and/or any other physical access control system working on the same doors as the Auxin system. Non-Auxin proprietary equipment would be subjected to the warranty terms and conditions of the manufacturer.
Auxin will not be liable for malfunctions on the Hardware once the warranty expires. You will need to purchase new Hardware if you need a replacement on any part of your Auxin system. You will also be liable for any installation costs associated with replacing your existing Hardware with a new one.
In the event that a new version of the Hardware is released by Auxin, it will be made available to the Customer for purchase. The Hardware Warranty does not extend to devices that have been de-commissioned or devices that have reached their end-of-life. Auxin will be required to send notification of any intention to de-commission any Hardware.
4.4. Returns. Customer may return Products purchased directly from Auxin within 30 days from the date of the applicable Purchase Order for any reason. Thereafter, to request a return under the Hardware Warranty, Customer must notify Auxin or, if the Products were purchased from a Partner, the Customer must notify the Partner, within the Hardware Warranty period. To initiate a return of a Product purchased directly from Auxin directly to Auxin, Customer or Partner must send a return request to Auxin at firstname.lastname@example.org and clearly state details on where and when Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), Customer’s reason for returning the Hardware, and Customer’s name, mailing address, email address, and daytime phone number. Auxin reserves the right, in its sole discretion, to approve a Hardware Return under the Hardware Warranty. All Hardware Returns will be at your own cost and expense. To be eligible for a refund under the Hardware Warranty, all components of the Hardware must be returned to Auxin at 45 Main Street, Brooklyn 11201, and Auxin reserves the right to inspect all returned Hardware prior to issuing a refund. In the event Auxin determines that the Hardware return reason was not eligible, Auxin may decline to issue a refund.
5. Auxin Obligations
5.1. General. Auxin is responsible for providing the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.
5.2. Availability. Auxin uses its best efforts to ensure that the Hosted Software is available.
5.3. Installation. For Product installations in the United States, Auxin can arrange for Product installation through a third party provider. Installation time may vary but will take on average 10 to 20 business days. Auxin will help coordinate installations. The installation is performed by a third party company. Auxin does not guarantee the work of any installers procured from Auxin recommendations. Alternatively, Product installations in the United States may be installed by self-installation. Product installations in any other country must be self-installed. Additional terms regarding Product installation are available at https://auxin.io/docs.
Auxin will not be liable for any act, omission, or error of the installer of the Product. In the event Auxin assists in arranging for a third party company to install the product, Auxin shall not be liable for an error or defect in installation. Your sole recourse will be against such third party company and the terms of any agreement between you and such third party company will govern.
5.4. Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Auxin will provide Support in order to resolve the issue or provide a suitable workaround.
The fee for Support is included in the cost of the License unless otherwise agreed upon by you and Auxin in writing. As part of a Support case, Customer may grant access, in its sole discretion, to a member of Auxin’s Support team through functionality provided in the Hosted Software for a length of time determined by Customer.
6. Customer Obligations
6.1. Compliance. Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including procurement and maintenance of any applicable licenses and permits. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of the export laws and regulations of the United States or any other country. If Customer operates in a regulated industry, Customer represents that it has obtained all necessary local and state licenses and/or permits necessary to operate its business and is in compliance (and will use its best efforts to remain in compliance) with all local, state, and (if applicable) federal regulations regarding the conduct of its business. Auxin reserves the right to suspend use of any Products operating in violation of the obligations of this Section 6.1, following written notice to Customer (which may take the form of an email).
6.2. Account Administration. Customer is responsible for identifying one or more individuals within Customer’s organization who will act as administrator(s) of Customer’s account. Such person(s) will be responsible for, among other things, monitoring and managing access privileges of other Users.
7. Term and Termination
7.1. Term. The term of this Agreement will commence on the Effective Date and will continue for so long as Customer maintains any active Licenses.
7.2. Termination for Cause. Either party may terminate this Agreement or any License Term 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 the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) for breaches of confidentiality or prohibited uses Auxin reserves the right to terminate immediately.
7.3. Effect of Termination. If Customer terminates this Agreement or any License Term in accordance with Section 7.2, then Auxin will refund Customer a pro rata portion of any prepaid fees allocable to the remaining License Term. The following provisions will survive any expiration or termination of the Agreement: Sections 8, 9, 10, 12, and 13, and any other provisions that, by their nature, would reasonably be considered intended to survive.
8.1. Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Auxin’s Confidential Information includes the Products and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
8.2. Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
8.3. Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
9. Data Protection
Auxin secures the Software and Customer Data in accordance with the security practices available at auxin.io/security. Auxin will process all Customer Data in accordance with the DPA.
10.1. Auxin Property. Auxin owns and retains all right, title, and interest in and to the Software, the Usage Statistics, and all intellectual property embodied in the Hardware and accessories. Except for the limited license granted to Customer in Section 2.1, Auxin does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Auxin’s intellectual property rights in the Products.
10.2. Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Auxin, except for the limited license set forth in Section 2.2.
11.1. By Auxin. Auxin will indemnify, defend, and hold Customer, its affiliates, and their respective owners, directors, members, officers, and employees (collectively, “Customer Indemnitees”) harmless from and against any claim, action, demand, suit or proceeding (each, a “Claim”) made or brought by a third party against any of the Customer Indemnitees alleging that Customer’s use of the Products infringes or misappropriates any patent, trademark, copyright, or any other intellectual property of such third party. Auxin will pay any damages finally awarded against any Customer Indemnitees by a court of competent jurisdiction as a result of any such Claim, or any final settlement of such Claim, so long as Customer (i) gives Auxin prompt written notice of the Claim, (ii) gives Auxin sole control of the defense and settlement of the Claim (provided that Auxin may not settle any Claim without the Customer Indemnitee’s written consent, which will not be unreasonably withheld), and (iii) provides to Auxin all reasonable assistance, at Auxin’s request and expense. If Customer’s right to use the Products hereunder is, or in Auxin’s opinion is likely to be, enjoined as the result of a Claim, then Auxin may, at Auxin’s sole option and expense procure for Customer the right to continue using the Products under the terms of this Agreement, or replace or modify the Products so as to be non-infringing and substantially equivalent in function to the claimed infringing or enjoined Products. Auxin will have no indemnification obligations under this Section 11.1 to the extent that a Claim is based on or arises from: (a) use of the Products in a manner other than as expressly permitted in this Agreement; (b) any alteration or modification of the Products except as expressly authorized by Auxin; (c) the combination of the Products with any other software, product, or services (to the extent that the alleged infringement arises from such combination); or (d) where the Claim arises out of specifications provided by Customer. This Section 11.1 sets forth Auxin’s sole and exclusive liability, and Customer’s exclusive remedies, for any Claim of infringement or misappropriation of intellectual property.
11.2. By Customer. Customer will indemnify, defend, and hold harmless Auxin, its affiliates, and their respective owners, directors, members, officers, and employees (together, the “Auxin Indemnitees”) from and against any Claim related to (a) Customer’s or a User’s engaging in a Prohibited Use, and (b) Customer’s breach of its obligations in Section 6.1, and (c) any gross negligence, recklessness, or intentional misconduct of its Users. Customer will pay any settlement of and any damages finally awarded against any Auxin Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Auxin (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Auxin’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.
12. Limitations of Liability
12.1. Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, AUXIN MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING UPDATES OR SUPPORT. WITHOUT LIMITING THE FOREGOING, AUXIN HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. AUXIN DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
12.2. Limitation of Liability. EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR CUSTOMER’ THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, AND ANY BREACH RELATED TO AUXIN’S SECURITY OBLIGATIONS SET FORTH IN SECTION 10.1 (COLLECTIVELY, “EXCLUDED CLAIMS”), CUSTOMER’S INDEMNIFICATION OBLIGATION IN SECTION 8 OF THE MONITORING SERVICES ADDENDUM (if applicable), AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY, NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
12.3. Liability Cap. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS AND CUSTOMER’S INDEMNIFICATION OBLIGATION IN SECTION 8 OF THE MONITORING SERVICES ADDENDUM (if applicable), IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO AUXIN UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN THE CASE OF EXCLUDED CLAIMS, SUCH LIMIT WILL BE EQUAL TO THE TWO TIMES THE TOTAL AMOUNT PAID BY CUSTOMER TO AUXIN UNDER THIS AGREEMENT DURING THE TERM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
This Agreement is the entire agreement between Customer and Auxin and supersedes all prior agreements and understandings concerning the subject matter hereof. Customer and Auxin are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Auxin. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of New York without reference to conflicts of law rules. Any notice provided by one party to the other under this Agreement will be in writing and sent either (i) by overnight courier or certified mail (receipt requested), in the case of Customer to Customer’s address on record in Auxin’s account information and in the case of Auxin Incorproated, to 45 Main Street, Brooklyn, NY 11201, or (ii) by electronic mail to Customer’s email address on record in Auxin’s account information or to Auxin at email@example.com. If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. In the event of an assignment by Customer in connection with an acquisition of Customer or a sale of all or substantially all of Customer’s assets, Customer’s License may be transferred to the party acquiring Customer or purchasing all or substantially all of its assets, subject to Auxin’s prior written consent, such consent not to be unreasonably withheld.
A party will not be liable for any failure to perform caused by circumstances beyond its reasonable control which would otherwise make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation (each, a “Force Majeure Event”). If a Force Majeure Event lasts longer than five (5) business days, the parties will meet to determine if performance under the Agreement can resume as agreed. If the parties cannot agree, then Auxin may terminate the applicable Purchase Order or this Agreement.
If any disputes arise, the parties will first attempt to resolve the dispute informally via good faith negotiation. If the dispute has not been resolved after 30 days, the parties will resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief) by binding arbitration before a single arbitrator administered by JAMS, its successors and assigns, in New York County, New York, unless otherwise agreed by the parties in writing, and pursuant to its arbitration rules. Each party will be responsible for paying any arbitration fees in accordance with the foregoing rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed to prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.