software subscription agreement
This Software Subscription Agreement was last updated October, 2025
This Software Subscription Agreement (hereafter, the “Agreement”) is by and between Autire Technologies, LLC, a Texas limited liability company having its principal place of business at 16775 Addison Road, Suite 350, Addison, TX 75001, (“Autire”, “we” and “us”), and the undersigned licensee (“Customer” and “you”). The Autire and Customer are each, a “Party,” and, collectively, the “Parties”).
In addition to this Agreement, Customer agrees to the following terms and policies, which are incorporated by reference, and as they may be amended from time to time by Autire:
Order Form (defined below)
Article 1: Background
(a) The purpose of this Agreement is to set forth the terms and conditions under which Autire will provide to Customer access to certain proprietary software applications which are designed to assist certified public accounting firms to perform ERISA Section 103(a)(3)C) audits of a 401(k) defined contribution plan known as “AUTIRE™” and its associated data, applications, systems, websites, networks, cloud services, and services (collectively, the “Software”) based upon information and data authorized to be accessed by Customer and to be furnished to Autire by Customer (the “Customer Data”). This Agreement shall also govern the provision (if any) by Autire of Services (defined in Article 6) required in connection with the Software such as installation, implementation, training, hosting or similar services as described under Article 6 herein.
(b) By signing below, Autire and Customer agree to the following terms and conditions.
Article 2: Grant of License
(a) Subject to and conditioned upon Customer complying with the terms of a written Order Form executed by both Customer and Autire (the “Order Form”) and this Agreement, Autire grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide limited license solely during the Term (hereafter, the “License”) for Customer and Customer’s Users to remotely access and use the Software, Services and related documentation (hereafter, the “Software”) for the limited purposes as more fully described in the Order Form and that are not in violation of any third-party rights or appliable law.
(b) Use Restrictions:
(i) General. The Order Form shall set forth any special restrictions on the use of the Software (hereafter, the “Use Restrictions”).
(ii) Copies. Customer shall not be permitted to make any copies of the Software, in any form, including its source code, data schema or documentation, however, Customer shall be entitled to make a copy of any data generated based on Customer’s inputs, whether such data is in a html or pdf form, or otherwise, into the Software.
(iii) Sublicense and Transfer. Except as specifically provided in this Agreement, Customer shall not sublicense, rent, or lease any portion of the Software, and shall not transfer or provide access to the Software to any third party, unless designated as a User. “User” shall mean any Representative of Customer who is authorized pursuant to this Agreement and by Customer to access, upload and downland Customer Data via the Software.
(iv) Export. Customer shall adhere to any export controls applicable to the Software under the U.S. Export Administration Regulations. In this regard, Autire represents that, to the best of its knowledge, there are no export restrictions relating to the Software except as Autire may otherwise indicate to Customer in writing. Customer shall provide Autire, in advance, a written list of all countries from which Users will access the Software.
(c) Customer hereby grants Autire a non-exclusive, non-transferable, and limited license for Customer Data to remotely access and use solely during the Term of this Agreement and for the limited purposes set forth herein.
(d) Ownership of Materials. All right, title and interest in the Software, including, without limitation, all trademarks, service marks, trade secrets, patents, copyrights, and other proprietary rights inherent therein, appurtenant thereto, or related thereto are owned and retained exclusively by Autire and/or its licensors (collectively, the “Autire Materials”). All goodwill resulting from Customer’s use of the Software shall inure exclusively to Autire. Customer shall be the sole owner of all Customer Data. Customer hereby grants to Autire a non-exclusive, perpetual, irrevocable, worldwide license to use, sample, collect, and compile Customer Data in aggregated, anonymized and de-identified form (“Aggregated Data”) solely for Autire’s internal business purposes related to providing or maintenance of, improvement to, and operation of the Software or Services (including any new or different Autire products or services). Autire represents and warrants that: (i) such Aggregated Data cannot and will not individually identify any client of Customer client nor contain any personally identifiable information; (ii) Autire will not share any Aggregated Data in a manner that does or reasonably could permit the recipient of such information to determine that such any such Aggregated Data pertained to Customer or Customer’s clients; and (iii) all Aggregated Data will be preserved and protected in accordance with Autire’s Data Security and Privacy policy. The foregoing license of Aggregated Data to Autire includes the right to sub-license to third parties (specifically AWS) the Aggregated Data solely for the limited purposes of improvements to Software and for similar internal Autire business purposes, provided such third parties are bound to provisions consistent with the foregoing protections of Aggregated Data.
(e) Internet Connectivity; Disclaimer. Autire (either itself or through a third party) will make the Software available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications, and Internet connectivity necessary to access the Software. Customer acknowledges that Autire has advised and recommended that the Software be utilized via Google Chrome. Customer acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to the Software or performance hereunder. Customer agrees that Autire is not in any way responsible for any interference with Customer’s use of or access to the Software arising from or attributable to the Internet and Customer waives any and all claims against Autire in connection therewith.
Article 3: Fees Payable by Customer
(a) License Fee. Customer shall pay Autire the license fee(s) according to the fee and payment schedule set forth in a written Order Form executed by both Customer and Autire, and which may be amended from time to time by Autire upon ninety (90) days’ notice. Notwithstanding the foregoing, in no event shall license fees be payable, or any license be granted prior to Autire having received a fully executed original or digital identical copy of this Agreement.
(b) Service Fee. The ITS Services are included in the License Fee. In the event Ancillary Services are provided under a written Statement of Work pursuant to Article 6, Customer shall pay Autire the service fee(s) according to the fee and payment schedule set forth in the Statement of Work. For work specified in a Statement of Work to be performed on a fixed price basis, payments shall be made in accordance with the Statement of Work as each milestone is completed and accepted by Customer.
Article 4: Rights included in License
(a) Contractors and Consultants. Subject to any restrictions hereunder relating to the Users authorized to access the Software, the License shall extend to Customer’s employees as well as contractors and consultants (hereafter, the “Representative”) provided: (i) such use is strictly limited to complying with the obligations of this Agreement, the Terms of Use, and to performing Customer’s business; (ii) the Representative is under obligation to Customer to protect Autire’s proprietary rights in the Software at least as restrictive as Customer’s obligation to Autire hereunder; (iii) Customer shall be responsible for the acts or omissions of the Representative in breach of this obligation or otherwise in violation of this Agreement; and (iv) the rights of the Representative shall immediately expire upon termination of this Agreement.
(b) Outsourcing. Subject to any restrictions hereunder relating to Users authorized to access the Software, third-party service providers may use the Software, provided: (i) such use is strictly limited to complying with the obligations of this Agreement and to performing Customer’s business; (ii) the service provider is under obligation to Customer to protect Autire’s proprietary rights in the Software at least as restrictive as Customer’s obligation to Autire hereunder; (iii) Customer shall be responsible for the acts or omissions of the service provider in breach of this obligation or otherwise in violation of this Agreement; and (iv) the rights of the service provider shall immediately expire upon termination of this Agreement.
Article 5: Protections Afforded Customer
Autire warrants and represents that it has taken reasonable steps to test any Software and/or media supplied by it or used by it in the performance of this Agreement for Computer Viruses. Based upon such testing, Autire warrants and represents that, to the best of its knowledge, such Software and media is free from any Computer Virus at the time it is provided to Customer or used in connection with any system or software of Customer. “Computer Virus” is defined as a computer program attached to or a section of code hidden within the software or media that performs a function unauthorized by the software’s documentation and which adversely affects Customer’s computer or software systems.
Article 6: Services
(a) ITS Services. As part of the License Fee, Autire will provide the installation, implementation, training, support, data processing, data storage, and hosting services described in the Order Form (the “ITS Services”).
(b) Ancillary Services. Any and all additional Services other than the ITS Services that are required by Customer (collectively, the “Ancillary Services”) shall be agreed in a written Statement of Work between the parties in advance with respect to each of the Ancillary Services to be performed to be provided, fees and payment schedule, acceptance criteria and a completion timetable.
(c) For purposes of this Agreement, the ITS Services and all Ancillary Services, if any, are, collectively, referred to herein as the “Services”.
(d) Insurance requirements for on-site Services. In the event any Services involve a representative of Autire to visit any Customer site, Autire shall be responsible for ensuring the Autire’s representative is insured in a manner that is reasonably approximate to the standard for the Autire’s industry and shall provide an insurance certificate as proof of insurance upon written request.
Article 7: Autire Authority
Autire warrants and represents that it is the owner or licensee of the Software and any Services hereunder or otherwise has the power and authority to grant the rights granted to Customer herein.
Article 8: Warranties, Representations, and Disclaimers
(a) Autire Warranties and Representations
i. Autire warrants that for a period of one (1) year from the date access to the Software is granted, or the period the maintenance is in effect (hereafter, the “Warranty Period”), the Software shall be free of material programming errors and defects in workmanship and materials, subject to Maintenance Releases. “Maintenance Releases” shall mean corrections and enhancements to Services, including hot fixes, patches, workarounds, updates and upgrades. Maintenance Releases do not include new products or add-ons to Services which include new features for which Autire charges a separate fee to its licensees. If at any time Autire or Customer shall discover the Software is defective, has errors or fails to materially conform to the provisions of this warranty contained in this Agreement, Autire shall, entirely at its own option and expense, promptly correct such defect, error or non-conformity (collectively “Defect”), by, among other things, supplying Customer with corrections and/or making such additions, modification, replacement or adjustment as may be necessary to keep the Software operating in conformity with the warranties herein. Autire represents that it will take commercially reasonable efforts to comply with the Service Level Agreement, in connection with support requested from Customer. Autire represents that it will take commercially reasonable efforts to comply with Data Security & Privacy Policy.
ii. Services. Autire warrants that such Software and Services shall conform to the documentation and written materials provided to Customer regarding the functionality of the Software.
iii. In the event that Autire breaches the foregoing and/or is unable to correct a Defect within a commercially reasonably time (not to exceed 30 days), Autire shall refund to Customer up to 50% of the License Fee for the current audit during which the Defect was present as Customer’s sole and exclusive remedy.
(b) Customer Warranties and Representations
i. Customer represents and warrants to Autire that it has the legal right to use, copy, distribute and display the Customer Data; that the Customer does not and shall not infringe upon, misappropriate or otherwise violate any publicity, privacy, trade secret or trademark, service mark, copyright or other third-party right (but not including any patent rights) to use copy, distribute and display the same and to create derivative works thereof, in the formats and in the manner contemplated in this Agreement; that none of the matter included in the Customer Data is libelous, in violation of any right of privacy, or otherwise contrary to law; that Customer previously has not assigned, pledged or otherwise encumbered, and will not assign, pledge or otherwise encumber, any rights in or to the Customer Data or Autire Materials; and that no one claiming through Customer, or claiming by reason of services provided by, to or on behalf of Customer in connection with the development of the Customer Data, shall have or claim any exclusive right, title or interest in or to the Customer Data or any part thereof.
ii. Customer represents and warrants that it has used and shall use reasonable efforts consistent with the highest industry standards to ensure that there are no viruses in the Customer Data, in the form in which the same is provided to Autire; and neither the Customer Data nor the form in which the same is delivered contains any embedded device or code that is intended to obstruct or prevent the Software from operating pursuant to this Agreement or any other agreement to which Autire is a party.
iii. Customer represents and warrants that it has and shall have full power and authority to grant the rights and licenses granted to Autire hereunder with respect to the Customer Data; that all Users will strictly comply with the terms and conditions of access provided by Autire; and that neither the license to Autire or Autire’s use of the Customer Data, including any of such rights and licenses as permitted hereunder will in any way constitute an infringement, misappropriation or other violation of any trademark, service mark, copyright, patent, trade secret or other right of any third party.
iv. Customer represents and warrants that the use of the Software does not relieve Customer of responsibility for the preparation, content, accuracy (including computational accuracy), and review of audits prepared by Customer while using the Software or any other work product generated by Customer while using the Software;
v. Customer will neither inquire nor rely upon Autire for any audit, tax, accounting, legal or other professional or expert advice of any kind;
vi. Customer will retrieve in a timely manner any electronic communications made available to Customer by Autire (for example, electronic filing transaction data such as acknowledgements and e-mail messages in Customer’s mailbox);
vii. Customer is fully and solely responsible for: (a) selection of adequate and appropriate procedures to satisfy Customer’s business needs and achieve its intended results; (b) use of the Software by all Users; (c) all results obtained from the Software; (d) selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed for access to and use of the Software, and for all costs associated therewith; and (e) selection, use of, and results obtained from any other programs, applications, computer equipment or services used with the Software. Customer takes full and exclusive responsibility for complying with and documenting all auditing and documentation standards of the AICPA and other applicable requirements;
viii. Customer will not access or use the Software to create software, a product, service or database that competes with Autire or the Software;
ix. Customer is responsible for complying with all laws, rules, regulations, and procedures of local, state, federal and foreign authorities applicable to Customer and its business, including all laws, rules, regulations and procedures of the Internal Revenue Code and Service; and
x. Customer will not upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) if the uploading or transmission would violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability or (vii) that constitutes protected health information under the Health Insurance Portability and Accountability Act (HIPAA) or any successor law;
(c) Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY DISCLAIMS, AND HEREBY WAIVES ALL OTHER PROMISES, REPRESENTATIONS, EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED, TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY LICENSEE DATA, SERVICES, OR DELIVERABLE FURNISHED HEREUNDER.
(d) Support Interactions. If you contact Autire for support, Customer understands and agrees that all interactions with Autire will be recorded and may be used to create training and support videos for our own staff and for the education and assistance of other licensees and users (collectively, “Training Videos”). Training Videos will be posted or otherwise shared with all licensees of the Software via a FAQ or other support resource available through the Software. Autire will ensure that all Customer and Customer client identifiable data is deleted or obscured in all Training Videos. Customer hereby grants to Autire and its affiliates a non-exclusive, perpetual, irrevocable, worldwide license to use, sample, collect, and compile Customer Data included in any Training Videos.
Article 9: Indemnity & Insurance
(a) Autire does hereby indemnify, defend and hold harmless Customer, as defined in the preamble and Article 4 against all suits, losses, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from or relating to a claim, action, or proceeding made by a third party (i) that the Software infringes, misappropriates, or violates such third party’s intellectual property, including trade secrets, proprietary information, trademark, copyright, or patent rights, and (ii) arising from Autire’s intentional act, negligence, gross negligence, violation of applicable law, or breach of this Agreement. Customer shall notify Autire immediately of any such claim and, at Autire’s request and expense, shall provide reasonable assistance to Autire to defend against such claim. This indemnification does not cover third-party claims which are based on modifications to the Software not authorized by Autire. This indemnification also does not cover third-party claims which are based on combination or use of the software with products not supplied by Autire unless such combination was reasonably contemplated by the parties.
(b) Customer does hereby indemnify, defend and hold harmless Autire against all suits, losses, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from or relating to a claim, action, or proceeding made by a third party that due to Customer’s intentional act, negligence, or gross negligence any Customer Data licensed to Autire hereunder, including, without limitation, infringes, misappropriates, or violates such third party’s intellectual property, including privacy, trade secrets, proprietary information, trademark, copyright, or patent rights. Autire shall notify Customer immediately of any such claim and, at Customer’s request and expense, shall provide reasonable assistance to Customer to defend against such claim. This indemnification does not cover third-party claims which are based on modifications to the Customer Data not authorized by Customer. This indemnification also does not cover third-party claims which are based on combination or use of the Customer Data by Autire unless such combination or use was reasonably contemplated by the parties.
(c) Cyber Security Insurance. In addition to the foregoing insurance, Autire agrees to purchase and maintain throughout the term of this Agreement a technology/professional liability insurance policy, including coverage for network security/data protection liability insurance (also called “cyber liability”) covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in rendering technology/professional services or in connection with the specific services described in this Agreement: a) Violation or infringement of any right of privacy, including breach of security and breach of security/privacy laws, rules or regulations globally, now or hereinafter constituted or amended; b) Data theft, damage, unauthorized disclosure, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, identity theft, theft of personally identifiable information or confidential corporate information in whatever form, transmission of a computer virus or other type of malicious code; and participation in a denial of service attack on third party computer systems; c) Ransomware; d) Loss or denial of service; e) No cyber terrorism exclusion; and f) with a minimum limit of $2,000,000 each and every claim and in the aggregate. Such coverage must include technology/professional liability including breach of contract, privacy and security liability, privacy regulatory defense and payment of civil fines, payment of credit card provider penalties, and breach response costs (including without limitation, notification costs, forensics, credit protection services, call center services, identity theft protection services, and crisis management/public relations services). Such insurance must explicitly address all of the foregoing without limitation if caused by an employee of Autire or an independent contractor working on behalf of Autire in performing services under this Agreement. Policy must provide coverage for wrongful acts, claims, and lawsuits anywhere in the world. Such insurance must include affirmative contractual liability coverage for the data breach indemnity in this Agreement for all damages, defense costs, privacy regulatory civil fines and penalties, and reasonable and necessary data breach notification, forensics, credit protection services, public relations/crisis management, and other data breach mitigation services resulting from a breach of confidentiality or breach of security by or on behalf of Autire.
Article 10: Confidentiality
(a) General. In connection with the performance of this Agreement or discussions between the Parties relating to possible future Statements of Work hereunder, both Parties recognize that they may be a recipient (hereafter, “Recipient”) to information that the other Party (hereafter, “Discloser”) regards as sensitive, proprietary or otherwise confidential (hereafter “Confidential Information”). For example, the Autire’s source code, data schema, documentation, technical, marketing, product and/or business affairs, Autire Materials, and Software is Autire’s Confidential Information. Furthermore, all information contained on Customer’s network and any Customer Data stored on Autire’s network that was generated as a result of Customer’s usage of the Software shall be considered Customer’s Confidential Information. Autire, or its data hosting provider, shall encrypt at rest all Customer Data stored on Autire’s network that was generated as a result of Customer’s usage of the Software. The Recipient shall strictly limit its use of the Discloser’s Confidential Information to the purpose of performing this Agreement and shall be permitted to disclose the Discloser’s Confidential Information only to its employee(s) or employees who have a need to know the Discloser’s Confidential Information for the purpose of performing this Agreement. Recipient shall not disclose Discloser’s Confidential Information to any third party. Furthermore, the Recipient shall limit its use of Confidential Information to the performance of this Agreement and shall use at least the same degree of care in protecting the Confidential Information as it employs with respect to its own comparable confidential information, but in no event less than a reasonable standard of care.
(b) Identification. Confidential Information which is provided in tangible form shall clearly be marked “Confidential,” “Proprietary” or the substantial equivalent thereof, while Confidential Information which is disclosed orally or visually, or through observation or inspection of the Disclosing Party’s facilities, devices, samples or other items, shall clearly be identified as such at the time of the disclosure and shall be summarized in a writing clearly marked “Confidential,” “Proprietary” or the substantial equivalent thereof and given to Recipient within 30 days of such disclosure. Confidential Information provided hereunder shall not be denied the protections afforded by this Agreement solely on the basis that the Confidential Information was not marked and/or summarized in writing in accordance herein if the Recipient should reasonably have understood the information to be confidential.
(c) Exceptions. The confidentiality obligations hereunder shall not apply to information which (i) is already known by the Recipient as evidenced by Recipient’s written records; (ii) is publicly known or becomes publicly known through no wrongful act of Recipient; or (iii) is subsequently disclosed to the Recipient without restriction by a third party having the lawful right to make such disclosure.
(d) Confidentiality Term. Notwithstanding the earlier cancellation or termination of this Agreement, the Recipients’ obligations of confidentiality hereunder shall survive and continue for as long as the Confidential Information remains as confidential and trade secret under Texas law.
(e) Judicial or Governmental Administrative Process Request. In the event the Recipient is required by judicial or governmental administrative process to disclose any Confidential Information of the Discloser, the Recipient shall promptly notify the Discloser in writing so that the Discloser may seek appropriate means to protect the confidentiality of its Confidential Information. Notwithstanding the absence of such means, if, in the opinion of the Recipient’s counsel the Recipient is compelled to disclose such Confidential Information, the Recipient may disclose only the Confidential Information that is required without liability hereunder.
(f) Return. Upon request of the Discloser, the Recipient will forward to the Discloser all extant documents or other tangible forms of Confidential Information received from the Discloser, (Confidential Information incorporated into the Recipient’s own records shall be destroyed or erased), except that the Recipient may retain in the location required by its document retention policy or legal counsel a copy of written information for record purposes only.
Article 11: Limitation of Liability
(a) General Limitation: EACH PARTY AGREES THAT THE OTHER PARTY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES WILL NOT BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, EVEN IF THE 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.
(b) Maximum and Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS UNDER ARTICLE 9, OR A PARTY’S BREACH OF SECTION 10, IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE MONIES RECEIVED FOR THE SOFTWARE OR SERVICE HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
(c) Force Majeure. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING FROM ACTS OF GOD OR OTHER EVENTS THAT ARE BEYOND THEIR REASONABLE CONTROL AND THAT REASONABLY PREVENT THEIR PERFORMANCE HEREUNDER OR MAKE SUCH PERFORMANCE COMMERCIALLY
Article 12: Disputes
(a) Any dispute between the Parties relating to this Agreement which cannot be resolved with reasonable promptness shall be referred to each Party’s senior officer in an effort to obtain prompt resolution.
(b) Until the expiration of 60 days from the date of referral to such senior officers, neither Party shall commence any action against the other, provided however, this shall not preclude a Party from instituting an action seeking injunctive relief to prevent irreparable damage to such Party.
(c) Until the expiration of 60 days from the date of referral to such senior officers, Autire shall continue its performance hereunder in all respects regardless of any dispute (including without limitation any alleged material breach by Customer) which may arise between Customer and Autire, provided however, this obligation shall not prejudice any of Autire’s rights or remedies it may otherwise have in connection with any dispute between Autire and Customer.
(d) If the parties are unable to resolve their dispute amicably, either party may file a lawsuit subject to this Section 12(d). Customer irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of the United States Federal and Texas State courts located in the Northern District of Texas (the “Texas Courts”) for any litigation or dispute arising out of or relating to this Agreement, (ii) agrees not to commence any litigation arising out of or relating to this Agreement except in the Texas Courts, (iii) agrees not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agrees the Texas Courts represent the exclusive jurisdiction for all disputes relating to this Agreement. EACH PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS TERMS OF USE AND THE TRANSACTIONS IT CONTEMPLATES.
Article 13: Term and Termination
(a) The “Effective Date” of this Agreement is the date listed as the effective date in the Order Form or, if not date is listed, the date in which both Autire and Customer accept the initial Order Form. Unless otherwise specified in the Order Form, the term of the Customer shall begin on the Effective Date and will expire on the date provided in the Order Form (the “Initial Term”). Unless the Order Form provides otherwise, the Initial Term will be extended for additional terms of 1-year each (each a “Renewal Term”) unless and until a Party provides written notice to the other Party of its intent to terminate at least forty-five (45) days before the end of the then-current term. Any new pricing adopted by Autire will be effective as of the next Renewal Term. The Initial Term and all Renewal Terms are, collectively, the “Term”.
(b) License(s) and/or Maintenance. Subject to 90 days written notice to Customer, Autire may terminate this Agreement and all licenses granted hereunder and any maintenance services hereunder at any time for convenience.
(c) Services. In the event Services are provided under a Statement of Work pursuant to Article 6, the Statement(s) of Work shall continue in effect until the Services thereunder have been provided by Autire and Customer has paid all amounts due and owing. Notwithstanding the foregoing, Customer shall have the right to terminate such Services for convenience upon 30 days written notice in which case neither Party shall have any further liability to one another except Customer shall pay Autire for Services provided by Autire up to the date of termination at the rate set forth in the Statement of Work, plus any unavoidable costs incurred by Autire in closing down the Statement of Work, and to abide by the provisions that survive the termination of this Agreement.
(d) Default. Either Party has the right to terminate this Agreement if the other Party breaches or is in default of any material obligation hereunder, which default is incapable of cure or, if capable of cure, has not been cured within sixty days after receipt of notice of such default from the non-defaulting Party.
(e) Acts of Insolvency. Either Party may terminate this Agreement by written notice to the other Party and may regard the other Party as in default of this Agreement, if such Party terminates or suspends its business, becomes insolvent, or becomes subject to bankruptcy proceedings.
(f) Termination of Use of the Software. Upon termination of any licenses granted under this Agreement, Customer will stop using the Software under the terminated license or at Autire’s request. The termination of this Agreement shall not affect the rights and obligations of the Parties that either accrued prior to termination hereof or by their nature are intended to survive, including, but not limited to, confidentiality and limited use obligations, any licensing obligations, and the limitations of liability provisions, shall survive the termination of the Agreement.
(g) Customer Data. Upon termination of this Agreement for any reason, Autire shall, either (i) deliver to Customer all Customer Data in Autire’s possession or in the Software, in a format mutually agreed to by the Parties, or (ii) provide Customer with access to the Software, in order to access and retrieve the Customer Data. Autire agrees to retain and maintain all audit files created by Customer (including all Customer Data therein) for at least seven (7) years after Customer’s completion of the audit file, and Autire will provide Customer with access to obtain and retrieve all such audit files (including all Customer Data therein) during such retention period. Thereafter, Autire shall remove or delete all Customer Data from the Software or its backup servers.
Article 14: Taxes and Delivery of Software
(a) The License Fees listed in the Order Form are exclusive of any sales, use, VAT, import or similar tax, which will be solely borne by Customer. In addition, all invoices submitted by Autire for any Software or Service deliverable hereunder shall separately itemize the applicable sales, use or value added tax (hereafter, “Sales Tax”) imposed by any governmental authority and, except as provided in part (b) below, Customer shall pay the Sales Tax.
(b) If the purchase of any Software or Service is exempt from Sales Tax, Customer shall furnish Autire with a valid exemption certificate.
(c) For the avoidance of doubt, except for as provided in part (a) above, Customer shall not be liable hereunder for any taxes, assessments, levies or fees imposed upon Autire by any federal, foreign, state or local governmental authority including but not limited to (i) taxes based upon or measured by Autire’s net income; (ii) gross receipts tax; (iii) franchise taxes based upon Autire’s corporate existence or its general corporate right to transact business; or (iv) payroll or other employment tax for which Autire is liable.
(d) For purposes of this Section, the term “Autire” shall also include, but is not limited to, the partners, principals and employees of Autire.
(e) In the event of conflict between this Article 14 and a work order, invoice or other document containing terms and conditions of Autire’s engagement, this Article 14 shall control.
Article 15: General
(a) Relationship. Autire shall be an independent contractor under this Agreement and no employee of Autire shall be deemed to be an employee of Customer for any purpose whatsoever. Autire shall comply, at its own expense, with the provisions of all applicable state and municipal requirements and with all state and federal laws applicable to Autire as an employer and otherwise.
(b) Publicity. Neither Party will disclose the existence of this Agreement to third parties nor use any of the other Party’s trademarks, logos, likeness, or name without the prior written consent of such other Party.
(c) Choice of Law. This Agreement and any dispute arising hereunder shall be construed exclusively in accordance with the laws of the State of Texas without regard to its principles of conflict of laws.
(d) Assignment. Neither Party shall assign this Agreement, or any interest therein, without the other Party’s prior written consent (which consent shall not be unreasonably withheld) except that Customer may assign this Agreement in whole or in part to an Affiliate or a buyer of Customer, either through a purchase of assets or equity interest, or pursuant to any merger, demerger, or divestiture or other reorganization of Customer, without Autire’s consent, upon written notice to Autire.
(e) No Waiver. The failure by any Party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder. In addition, a waiver of any default shall not constitute a waiver of any later default.
(f) Terms of Use. This Agreement specifically incorporates by reference, “Terms of Use” (“Terms of Use), as amended from time to time. All use of the Software by any User is subject to the Terms of Use, and a breach thereof shall also be considered to be a breach of this Agreement. To the extent of any conflict in terms between this Agreement and the Terms of Use, the provisions of the Terms of Use shall prevail.
(g) Survival of Provisions. The provisions of Article 9 through 12 and Article 15 shall survive the termination of this Agreements.
(h) Entire Agreement. This Agreement, together with all terms and policies referenced herein, sets forth the entire understanding of the Parties as to its subject matter, supersedes and cancels any previous understandings, representations, or agreements between the parties relating to the subject matter hereof, and, unless provided otherwise in this Agreement, may not be modified except in a writing executed by both Parties. If any terms in this Agreement conflict with terms in any Statement of Work, Change Order, purchase order or addenda, the terms of this Agreement shall govern.
(i) Notices. Any notice hereunder shall be in writing and sent to the Parties at the respective addresses set forth in the signature block below.
(j) Counterparts. The Parties agree that any signature (including but not limited to any electronic symbol attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, and the Parties hereby waive any objection to the contrary. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which, taken together, shall constitute one and the same instrument.