Modax WMS Subscription Terms

These Subscription Terms govern the use of Modax WMS for Microsoft Dynamics 365 Business Central (the "Product") by the business identified in an order accepted by Modax Consulting Inc. ("Modax") or by an authorized Modax partner ("Partner") (the "Order"; that business, the "Customer"). They form a direct agreement between Modax and the Customer whether the Customer orders the Product from Modax or from Partner. Terms used but not defined here have the meaning given in the Order. "Documentation" means the user, administrator and implementation documentation that Modax makes available for the Product, and "Subscription Term" has the meaning given in Section 7.1.

1. Subscription and License

1.1Subject to these Subscription Terms and to payment of the fees in the Order, Modax grants the Customer a non-exclusive, non-transferable right during the Subscription Term to install and use the Product in the Business Central production environment(s) identified in the Order, for the Customer's internal business operations, with up to the number of concurrent handheld devices stated in the Order, and in one (1) sandbox environment for each production environment unless the Order states a different number.

1.2Concurrent devices. Any number of handheld devices may be registered. At any moment no more than the subscribed number of devices may have an active session on the Modax mobile gateway; a further device can start a session only when another has ended. Devices are not named and may be shared by any number of workers; workers are not counted or charged.

1.3The Customer may add devices, environments or optional packs during the Subscription Term at the then-current pro-rated fees. Reductions take effect at the next renewal.

1.4The Customer's affiliates may use the Product within the licensed environments, provided the Customer remains responsible for their compliance with these Subscription Terms.

2. Restrictions and Microsoft Licenses

2.1The Customer shall not, and shall not permit any third party to: (a) copy, modify or create derivative works of the Product, except through the extension points published in the Documentation; (b) reverse engineer, decompile or otherwise attempt to derive the source code of the Product; (c) bypass or interfere with any licensing, security or access control mechanism of the Product; (d) use the Product outside the licensed environments or make it available to any third party other than service providers acting on the Customer's behalf and bound by these restrictions; (e) remove proprietary notices; or (f) publish benchmark or performance results for the Product without Modax's written consent.

2.2The Customer is responsible for holding the Microsoft Dynamics 365 Business Central licenses required for its users and devices. The Product does not alter the Customer's rights or obligations under its agreements with Microsoft.

3. Data, Security and Privacy

3.1The Product operates inside the Customer's own Business Central tenant. The Customer owns its business data. Modax does not host Customer business data and has no access to it unless the Customer grants support access for a defined period. The Modax handheld application stores only the session data needed for the warehouse task in progress.

3.2Diagnostic data. The Product may transmit to Modax technical and usage data, such as Product version, environment identifiers, active device counts, error logs and performance metrics, to the extent needed to operate the mobile gateway, verify licenses, provide support and improve the Product. Diagnostic data does not include Customer business data except where the Customer provides it to reproduce a reported defect. Modax treats diagnostic data as the Customer's confidential information.

3.3Modax develops and publishes the Product in accordance with Microsoft's requirements for AppSource and per-tenant extensions. Platform security, backup and availability of Business Central are provided by Microsoft under the Customer's agreement with Microsoft.

3.4Each party complies with the privacy laws applicable to personal information it processes in connection with the Subscription. Contact details exchanged for ordering and support are used only for those purposes.

4. Support, Updates and Communication

4.1Product support is included in the Subscription: correction of defects, availability of the Modax-operated components of the Product, how-to assistance on documented functionality, and updates. Support is provided through the Modax support portal at modaxsupport.com during 9:00 to 17:00 Eastern Time on business days, under the severity levels and response targets in the Order or, if none are stated, in Modax's then-current support schedule. Where the Customer ordered through Partner, Partner provides first-line support and submits tickets to Modax; the Customer may be given read-only access to its tickets on request.

4.2Excluded services. Implementation, configuration, data migration, training, custom development, integration with third-party systems, and resolution of issues caused by configuration outside the Documentation are not included and are available as services under a separate statement of work from Modax or Partner.

4.3Updates. Modax keeps the Product compatible with the release waves of Business Central that Microsoft currently supports. The Customer, or Partner on its behalf, installs updates in the Customer's environments. Modax supports the current release of the Product and the release immediately preceding it.

4.4Direct communication. The Customer agrees that Modax may communicate with it directly on product matters, including to investigate and correct defects, to give notices concerning releases, security, compatibility and end of support, to verify compliance with these Subscription Terms and the subscribed device count, to request feedback, and to arrange continuity of the Subscription under Section 6.3, even where the Customer ordered the Product through Partner.

5. Regulated Environments

5.1Validation documentation. For each major release of the Product, and for each update that changes the documented functionality, Modax makes available a functional specification, test scripts, requirement-to-test traceability and release notes suitable for inclusion in the Customer's computerized system validation. Execution of validation activities is a service under a separate statement of work.

5.2Change notification. Modax publishes release notes describing functional changes at least thirty (30) days before a major release, so that the Customer can assess the impact on its validated state.

5.3Vendor qualification and audit. Modax responds to reasonable supplier qualification questionnaires within ten (10) business days, or such longer period as is reasonable for the scope of the questionnaire, and, on reasonable notice and not more than once in any twelve (12) month period, makes itself available for a supplier audit conducted remotely or, at the Customer's expense, on site.

5.4Electronic signatures. Where the Product's electronic signature function is used, the Product records the identity of the signer through the signer's individual credentials, the date and time, and the meaning of the signature, and prevents alteration of the signed record. The Customer is responsible for the procedures required for its own compliance with 21 CFR Part 11 or equivalent regulations, including unique worker credentials, confidentiality of PINs, user training and periodic review. Modax does not certify the Customer's regulatory compliance.

6. Fees and Payment

6.1Fees are as stated in the Order. Where the Customer ordered through Partner, Partner invoices the Customer on the terms agreed between them, and these Subscription Terms create no payment obligation of the Customer to Modax except under Section 6.3.

6.2Where the Customer ordered from Modax: fees are invoiced monthly in advance in US dollars unless the Order states otherwise; invoices are payable within thirty (30) days; overdue amounts bear interest at twelve percent (12%) per annum, calculated and compounded monthly (one percent (1%) per month), or the maximum rate permitted by law, if lower; fees are exclusive of taxes, which the Customer pays other than taxes on Modax's income; and Modax may suspend the Subscription if an invoice remains unpaid fifteen (15) days after written notice of non-payment.

6.3Continuity if Partner defaults. If Partner fails to pay Modax the fees for the Customer's Subscription, Modax may notify the Customer and offer to continue the Subscription by invoicing the Customer directly or through another authorized partner. Modax will not suspend the Subscription for Partner's non-payment without giving the Customer at least fifteen (15) days' written notice and that offer.

6.4Price protection. Fees do not change during the current Subscription Term. Increases at renewal are limited to the greater of five percent (5%) or the change in the US Consumer Price Index (CPI-U) over the preceding twelve (12) months, with at least sixty (60) days' notice before renewal.

7. Term and Termination

7.1The Subscription Term is twelve (12) months from activation unless the Order states otherwise, and renews automatically for successive twelve (12) month periods unless either party gives written notice of non-renewal at least sixty (60) days before the end of the current Subscription Term.

7.2Either party may terminate the Subscription on written notice if the other party materially breaches these Subscription Terms and does not cure the breach within thirty (30) days of notice, or becomes insolvent or subject to bankruptcy or similar proceedings.

7.3On expiry or termination: the license ends and the Customer ceases to use, and uninstalls or has Partner uninstall, the Product; the Customer's business data remains in its Business Central tenant and is unaffected; Modax deletes diagnostic data relating to the Customer within ninety (90) days except as required by law; and fees accrued to the date of termination remain payable.

7.4If the Customer's relationship with Partner ends, the Subscription continues under these Subscription Terms to the end of the current Subscription Term, with Modax or another authorized partner as provided in Section 6.3.

8. Warranty and Disclaimer

8.1Modax warrants that during the Subscription Term the Product will perform materially in accordance with the Documentation. The Customer's exclusive remedy for breach of this warranty is correction of the non-conformity or provision of a workaround by Modax. If Modax fails to provide either within a reasonable time after written notice, the Customer may terminate the Subscription on written notice, in which case no fees are payable for the period after termination and any fees prepaid for that period are credited. Fees paid for periods before termination are not refundable.

8.2The warranty does not apply to the Microsoft platform, to third-party hardware or services, or to non-conformities resulting from use of the Product with items not supplied by Modax or from configuration outside the Documentation.

8.3EXCEPT AS EXPRESSLY SET OUT IN THIS SECTION 8, MODAX MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MODAX DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION.

9. Intellectual Property

9.1The Product is licensed, not sold. All intellectual property rights in the Product, the Documentation and any corrections, enhancements or derivative works of them, by whomever made, remain with Modax or its licensors. Corrections and enhancements that Modax develops in response to the Customer's reports or suggestions are part of the Product and may be released to all subscribers. Modax may use the Customer's feedback without restriction.

9.2Customer-specific extensions developed for the Customer under a statement of work are licensed to the Customer under that statement of work; the underlying know-how and any generic improvements remain with Modax.

10. Indemnity

10.1Modax shall defend the Customer against any third-party claim that the Product, as delivered by Modax and used in accordance with the Documentation, infringes a patent, copyright or trademark, and shall pay the damages and costs finally awarded or agreed in settlement, provided that the Customer gives prompt written notice of the claim, allows Modax sole control of the defense and settlement, and provides reasonable cooperation at Modax's expense. If such a claim is made or is likely, Modax may modify or replace the Product so that it is non-infringing, procure the right to continue its use, or terminate the Subscription with a credit of any prepaid fees for the remaining Subscription Term.

10.2Modax has no obligation for claims arising from modifications not made by Modax, from combination of the Product with items not supplied by Modax where the claim would not have arisen but for the combination, or from use after Modax has provided a non-infringing alternative.

10.3Modax's total liability under Section 10.1, including defense costs, damages and settlements, is limited to the fees paid for the Subscription in the twelve (12) months preceding the first notice of the claim.

11. Limitation of Liability

11.1Neither party is liable for any indirect, incidental, consequential, special, exemplary or punitive damages, or for loss of profit, revenue, business, goodwill or data, however arising, even if advised of the possibility of such damages.

11.2Each party's total aggregate liability arising out of or in connection with the Subscription, whether in contract, tort (including negligence) or otherwise, is limited to the fees paid for the Subscription in the twelve (12) months preceding the event giving rise to the claim. This limit does not apply to breach of Section 12, infringement of a party's intellectual property rights, the Customer's payment obligations, or gross negligence, willful misconduct or fraud; Modax's indemnity is subject to Section 10.3.

12. Confidentiality

12.1Each party shall keep confidential the non-public information of the other party disclosed in connection with the Subscription, including the Product's non-public technical information, the Customer's business data and configuration, pricing, and the content of support tickets; shall use it only for the purposes of the Subscription; and shall disclose it only to personnel and advisers who need to know it and are bound by equivalent obligations. The usual exclusions apply for information that is public, already known, independently developed or lawfully received from a third party, and for disclosure required by law with prompt notice where lawful. These obligations continue for five (5) years after the Subscription ends, and for trade secrets for as long as they remain trade secrets.

13. General

13.1Changes to these terms. Modax may update these Subscription Terms on at least thirty (30) days' written notice. Updates apply from the start of the Customer's next Subscription Term, except updates required by law or by Microsoft's requirements for the platform, which apply on the date stated in the notice.

13.2Assignment. Neither party may assign the Subscription without the other party's consent, except to a successor in a merger or sale of substantially all assets, on notice. Modax may perform through its affiliates.

13.3Force majeure. Neither party is liable for delay or failure (other than payment) caused by events beyond its reasonable control, provided it notifies the other party promptly and uses reasonable efforts to resume.

13.4Notices. In writing by email to the addresses in the Order; notices of breach or termination also by courier or registered mail.

13.5Governing law and disputes. These Subscription Terms are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Before commencing proceedings, senior representatives of the parties shall attempt in good faith to resolve the dispute for thirty (30) days after written notice. The courts of Ontario have non-exclusive jurisdiction; either party may seek injunctive relief in any court of competent jurisdiction.

13.6Entire agreement and precedence. The Order and these Subscription Terms are the entire agreement between Modax and the Customer regarding the Product and supersede prior discussions. In the event of conflict, the Order prevails as to the environments, quantities, Subscription Term and fees it specifies, and these Subscription Terms prevail otherwise. Where the Customer ordered through Partner, Partner's agreement with the Customer governs Partner's services and the commercial terms between Partner and the Customer, and does not modify these Subscription Terms.