STANDARD INDUCTIVE AUTOMATION CONTRACT FOR AZURE MARKETPLACE

DEFINITIONS.

“Affiliates” means entities that Control, are Controlled by, or are under common Control with a party.
“Azure Marketplace” means the software marketplace operated by Microsoft located at https://azuremarketplace.microsoft.com as it may be updated from time to time.
“Confidential Information” has the meaning set forth in Section 7.1.
“Control” (including the terms “Controlled by” and “under common Control with”) means authority which an entity has over another entity through any of the following, directly or indirectly: (i) ownership of 50% or more of the share capital or other ownership interest in such other entity; (ii) the right to exercise 50% or more of the votes in such other entity; (iii) the contractual right to designate more than half of the members of such other entity’s board of directors or similar executive body; or (iv) by virtue of any power conferred by the Laws, constitutional documents, agreements or arrangements regulating or relating to such undertaking.
“Disclosing Party” has the meaning set forth in Section 7.1.
“Documentation” means the user guides, manuals, instructions, specifications, notes, documentation, printed updates, “read-me” files, release notes and other materials related to the Offerings (including all information included or incorporated by reference in the applicable Order), its use, operation or maintenance, together with all enhancements, modifications, derivative works, and amendments to those documents, that Inductive Automation publishes or provides under this Standard Contract.
“Effective Date” means the date that You enter into this Standard Contract with Inductive Automation.
“End User” means You, Your Affiliates and any person or software program or computer systems authorized by You or any of Your Affiliates to access and use the Offerings as permitted under this Standard Contract, including Your and Your Affiliates’ employees, consultants, authorized contractors, agents and other users.
“Export Laws” has the meaning set forth in Section 12.1.
“High Risk Activities” has the meaning set forth in Section 11.
“Inductive Automation” means Inductive Automation, LLC, a California limited liability company, having a principal place of business at 90 Blue Ravine Road, Folsom, California 95630, USA.
“IP Claim” has the meaning set forth in Section 9.
“Laws” means all applicable international, federal, state and local laws, including common laws, ordinances, codes, rules and regulations.
“Offering” means the computer software and any associated Documentation, data, content and/or services identified in the applicable Order that Inductive Automation provides to You, including any patches, bug fixes, corrections, remediation of security vulnerabilities, updates, upgrades, modifications, enhancements, derivative works, new releases and new versions of the foregoing that Inductive Automation provides pursuant to an Order.
“Order” means the ordering document used to transact the Offering via the Azure Marketplace.
“Receiving Party” has the meaning set forth in Section 7.1.
“Representatives” has the meaning set forth in Section 7.1.
“Support Services” means the support and maintenance services for the Offering that Inductive Automation provides as described in the Order.
“You” and “Your” means the person, company or other legal entity that is acquiring the Offerings, and any successor or assignee of same.
“Your Responsible Claims” has the meaning set forth in Section 9.
“Warranty Period” has the meaning set forth in Section 8.1.

LICENSE TO OFFERINGS.

License Grant. You acknowledge and agree that the Offerings are licensed, not sold. Upon acceptance of an Order, and subject to Your compliance with all the terms and conditions of this Standard Contract, Inductive Automation grants You a limited, non-exclusive, non-transferable and non-sublicensable license to use the ordered Offerings solely for Your internal business purposes pursuant to the terms of this Standard Contract.
Duration of Licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. Licenses granted for metered Offerings billed periodically based on usage continue as long as You continue to pay for Your usage of the Offerings.
End Users. You will control access to and use of the Offerings by End Users and are responsible for Your End Users with respect to the Offerings and this Standard Contract. Without limiting the generality of the foregoing, any breach of this Standard Contract by Your End Users, or any actions or omissions of Your End Users pertaining to the Offerings or this Standard Contract, will be deemed to be Your breach, action or omission, as applicable. Any use of the Offerings by Your End Users will be solely for Your internal business purposes.
Reservation of Rights. Inductive Automation reserves all rights in and to the Offerings not granted to You in writing in this Standard Contract. The Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use the Offerings on a device do not give You any right to implement Inductive Automation’s patents or other intellectual property in the device itself or any other software or devices.
Cirrus Link Products. The Offerings may contain computer software developed and distributed by Cirrus Link Solutions, LLC (“Cirrus Link”). Notwithstanding anything to the contrary in this Standard Contract, You acknowledge and agree that Cirrus Link-branded products, software or services (collectively, “Cirrus Link Products”) contained in the Offerings, if any, are provided by, and are the sole responsibility of, Cirrus Link, and Your rights and obligations related to the Cirrus Link Products are governed by the terms and conditions of the Cirrus Link Solutions Software License Agreement available at https://cirrus-link.com/wp-content/uploads/2021/06/CLSSLA-May-2021.pdf. The parties acknowledge and agree that, with respect to the Cirrus Link Products, the following Sections of this Standard Contract, and only the following Sections, are applicable unless specifically agreed to in writing signed by authorized representatives of both parties: Sections 3, 5, 8.2, 8.3, 10, 12 and 15.
Applications as a Service. Notwithstanding anything to the contrary in this Standard Contract, You may use the Offerings to (i) create applications or projects, and (ii) provide one or more third parties with services via such applications or projects; provided, that such third parties do not have access to or use of the Ignition designer or gateway configuration interface made available as part of the Offerings.

SUPPORT SERVICES. Inductive Automation will make available to You Documentation concerning the use and operation of the Offerings, and Inductive Automation will provide Support Services to You as described, incorporated or referenced in the applicable Order.

RESTRICTIONS; YOUR RESPONSIBILITIES.

Restrictions. You will not copy or distribute copies of the Offerings, in whole or in part. You will not reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code of the Offerings. You will not modify, adapt or create derivative works or improvements of the Offerings or any part thereof. You will not work around or bypass any technical restrictions or limitations in the Offerings. You will not remove, minimize, block or modify any logos, trademarks, copyright notices or other notices of Inductive Automation or its licensors that are included in the Offerings. You will not distribute, sublicense, rent, lease, sell, trade, resell, publish, transfer or lend the Offerings. Subject to Section 2.6, You will not use the Offerings to act as a consultant, service bureau or application service provider. You will not permit any third party to access the Offerings (except as expressly permitted herein) or violate any of the restrictions set forth in this Section 4.1. The restrictions set forth in this Section 4.1 do not apply to the extent they conflict with mandatory applicable Laws.
Security. You are responsible for the security of Your systems and data, including the Offerings on Your systems. You are responsible for excluding code, files, scripts, agents or programs intended to do harm, including, for example, malware, viruses, worms, time bombs, spyware and Trojan horses.
Third Party Claims. You acknowledge that Inductive Automation does not control Your processes or the creation, validation, sale, or use of Your products. Inductive Automation will not be liable for any claim or demand made against You by any third party, except for Inductive Automation’s obligations to indemnify You against infringement claims as expressly set forth herein.
Audit. You agree that Inductive Automation may audit Your use of the Offerings for compliance with the terms and conditions of this Standard Contract, upon reasonable notice. You agree to cooperate fully with Inductive Automation and its authorized agents in any such audit to assist in accurately determining Your compliance with the terms and conditions of this Standard Contract. If such audit reveals any use of the Offerings by You other than in full compliance with the terms of this Standard Contract, You will take all necessary action to bring Your usage into compliance and will pay Inductive Automation for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.

PRICING AND PAYMENT. Microsoft will invoice and charge You under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order.

OWNERSHIP. Ownership of the Offerings and Documentation remains with Inductive Automation. You are not obtaining ownership of the Offerings, the Documentation or any intellectual property rights related to them by licensing the Offerings and Documentation. Inductive Automation retains all right, title and interest in and to the Offerings and Documentation, including any enhancements, updates, upgrades, modifications, improvements and derivatives thereof, and all intellectual property rights therein. You will not use any Confidential Information to contest the validity, enforceability or ownership of any intellectual property of Inductive Automation or its licensors. Inductive Automation reserves all rights to any reproduction of the Offerings, including its Documentation, logos, trademarks, icons and interface in whole or in part. You retain all right, title and interest in and to Your Confidential Information. Except as otherwise expressly provided in this Standard Contract, nothing herein will be construed to grant either party any rights or licenses, either express or implied, in or to any patents, copyrights, trademarks or other intellectual property rights owned by the other party.

CONFIDENTIALITY.

Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“ Receiving Party”) under this Standard Contract, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Inductive Automation includes (i) the Offerings and (ii) the technology, ideas, know-how, documentation processes, algorithms and trade secrets embodied in the Offerings. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Except for rights expressly granted in this Standard Contract, each party reserves all rights in and to its Confidential Information.
Exclusions. Confidential Information does not include information that: (i) is known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (iii) is received by the Receiving Party from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
Use and Disclosure of Confidential Information. The Receiving Party will (i) not disclose Confidential Information of the Disclosing Party, except on a need-to-know basis to its employees, members, directors, officers, consultants and representatives (including, but not limited to, financial, tax and legal advisors) (collectively, “Representatives”), (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this Standard Contract, and (iii) protect Confidential Information from unauthorized use or disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party (a) will ensure that all its Representatives receiving Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (b) will be liable for compliance with this Section 7 by each of its Representatives.
Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under this Standard Contract; provided, that the Receiving Party gives the Disclosing Party prior notice of the required disclosure (if permitted to do so under law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Publicity. Inductive Automation may identify You as a customer (by name, logo or other mark) on its websites and in customer lists and other marketing materials.

LIMITED WARRANTIES AND DISCLAIMERS.

Limited Warranty. Inductive Automation warrants that the Offerings will conform in all material respects with the Documentation provided to You by Inductive Automation for a period of 30 days after Your purchase of a subscription or the term of the subscription, whichever is shorter (“Warranty Period”). This warranty will be void if the non-conformity is caused by Your failure to use the Offerings in accordance with the Documentation or comply with the terms and conditions of this Standard Contract.
Remedies. If any Offerings fail to conform to the foregoing limited warranty, Inductive Automation will, at its option and expense, correct the Offerings as necessary to conform to the limited warranty. If Inductive Automation does not correct the Offerings to conform to the limited warranty within a reasonable time, not to exceed 30 days (or such other period as may be agreed upon by the parties) (the “Cure Period”), as Your sole remedy and Inductive Automation’s exclusive liability, You may for a period of 30 days following the conclusion of the Cure Period (or such other period as may be agreed upon by the parties), elect to terminate the subscription and this Standard Contract without further liability and Inductive Automation will provide You with a refund of any fees prepaid to Inductive Automation by You, prorated for the portion of the subscription unused at the time You reported the breach of warranty to Inductive Automation.
Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS STANDARD CONTRACT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) INDUCTIVE AUTOMATION MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE OFFERINGS, AND (II) THE OFFERINGS PROVIDED UNDER THIS STANDARD CONTRACT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INDUCTIVE AUTOMATION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE OFFERINGS, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE AND FREEDOM FROM BUGS. INDUCTIVE AUTOMATION MAKES NO WARRANTY THAT THE OFFERINGS WILL MEET YOUR REQUIREMENTS, OR THAT THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES INDUCTIVE AUTOMATION MAKE ANY WARRANTY THAT ANY DEFECTS IN THE OFFERINGS WILL BE CORRECTED OR THAT THE OFFERINGS WILL BE COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE OR SERVICE. YOU ASSUME COMPLETE RESPONSIBILITY FOR DECISIONS MADE OR ACTIONS TAKEN BASED ON INFORMATION OBTAINED USING THE OFFERINGS. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY INDUCTIVE AUTOMATION OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED IN THIS STANDARD CONTRACT. THE OFFERINGS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET OR BE USED IN CONNECTION WITH HARDWARE AND OTHER OFFERINGS THAT ARE CONNECTED TO THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT INDUCTIVE AUTOMATION DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS OR NETWORKS. INDUCTIVE AUTOMATION WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.

Infringement Claim Indemnity. Inductive Automation will defend You against any claim, suit or action brought against You by a third party alleging that the Offerings infringe such third party’s copyrights, patents or trademarks, in each case, granted or registered by the United States (“IP Claim”), and will indemnify You from any damages and costs (including reasonable attorney’s fees) finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You under a settlement approved by Inductive Automation in writing of, an IP Claim; provided, that You give Inductive Automation (i) written notice of any IP Claim within 15 days of Your receipt of such IP Claim (provided the failure to give such notice will not relieve Inductive Automation of its indemnification obligations except to the extent that Inductive Automation is prejudiced by such failure), (ii) the sole control of and authority over the defense and settlement of the IP Claim, and (iii) all requested information and reasonable assistance. Inductive Automation will not admit liability or incur obligations on Your behalf without Your written consent.
Injunction. If a permanent injunction is obtained against Your use of the Offerings, Inductive Automation will, in its sole discretion: (a) modify the Offerings so that it is non-infringing; (b) replace the Offerings with non-infringing Offerings that is functionally equivalent in performance; (c) obtain a license for You to continue to use the Offerings as provided hereunder; or (d) terminate the license for the infringing Offerings and refund to You any license fees prepaid by You to Inductive Automation prorated for the unused portion of the Subscription. Inductive Automation may, in its sole discretion, provide the remedies specified in this Section 9.2 to mitigate infringement prior to the issuance of an injunction.
Exclusions. Notwithstanding anything to the contrary in this Standard Contract, Inductive Automation will have no defense or indemnification obligations or liability to You if: (A) the IP Claim does not state with specificity that the Offerings are the basis of the IP Claim; (B) the total aggregate fees Inductive Automation has received from You for the Offerings under this Standard Contract during the 12 months immediately preceding the IP Claim is less than $50,000 USD; or (C) an IP Claim is based upon or arises out of (I) compliance with Your instructions, specifications or designs, (II) the combination, operation or use of the Offerings, or any part thereof, with any equipment, technology, software, processes or materials not provided by Inductive Automation, if the Offerings, Documentation or use thereof would not infringe without such combination, (III) Your failure to use the latest release or version of the Offerings (including any corrections, patches or enhancements) where such use would have prevented the IP Claim, (IV) modifications, enhancements, or derivatives of the Offerings not made by Inductive Automation, or (V) Your breach of this Standard Contract or failure to comply with the Documentation (all of the items under clause (C), collectively, are referred to as “Your Responsible Claims”).
Sole and Exclusive Infringement Remedy. THIS SECTION 9 STATES INDUCTIVE AUTOMATION’S SOLE OBLIGATION AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INDUCTIVE AUTOMATION, ITS AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS FOR LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, COST OF COVER OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS STANDARD CONTRACT OR THE USE OF OR INABILITY TO USE THE OFFERINGS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF INDUCTIVE AUTOMATION, ITS AFFILIATES, ITS DISTRIBUTORS OR ITS RESELLERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY SPECIFIED IN THIS STANDARD CONTRACT OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE MAXIMUM AGGREGATE LIABILITY OF INDUCTIVE AUTOMATION TOGETHER WITH ALL OF ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATED TO THIS STANDARD CONTRACT, WHETHER OR NOT INSURED, WILL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR THE OFFERINGS UNDER THIS STANDARD CONTRACT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM; BUT, IN NO EVENT, MORE THAN $100,000 USD.

NO HIGH RISK USE. The Offerings are not fault-tolerant and is not designed or intended for use or resale in hazardous environments requiring fail-safe performance in which the failure of the Offerings could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). The license granted in this Standard Contract excludes any High Risk Activities, and You will not use the Offerings for High Risk Activities. You will defend, indemnify and hold harmless Inductive Automation, its Affiliates and their respective officers, managers, members, directors, employees, agents, successors, licensors and assigns against any losses, claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Your noncompliance with this Section 11; provided, that Inductive Automation reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims (and without limiting Your indemnification obligations with respect to such claims), and You agree to reasonably cooperate as requested by Inductive Automation in the defense of any claims.

EXPORT COMPLIANCE.

Export. Inductive Automation’s obligations under this Standard Contract are conditioned upon Your compliance with, and You agree to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including those of the United States (“Export Laws”). You represent that any Offerings provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by Inductive Automation in writing, or (iv) used for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles any other usage in the field of defense and military). Without limiting the foregoing, You represent and warrant that (a) You are not a Sanctioned Person, and (b) You will not download or otherwise access, or facilitate a third party’s download or access of, any Offerings from a Sanctioned Country. You will, at least once per year, review and update Your list of Users who have access to the Offerings and confirm that no such User is a Sanctioned Person and that all such Users may continue to access the Offerings in compliance with Export Laws. Inductive Automation may conduct the necessary Export Laws checks and, upon request, You will promptly provide Inductive Automation with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions (currently Belarus, Cuba, Iran, North Korea, Russia, Syria, and certain regions of Ukraine). “Sanctioned Person” means any person (i) included on an export control or sanctions list of designated or blocked persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Afghanistan, Myanmar, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons.
Remedies; Indemnification. In the event that You fail to comply with any provision of Section 12.1 or violate any Export Laws in connection with the Offerings, Inductive Automation will have the right to act in accordance with the terms of this Standard Contract and as required by U.S. law or the applicable law. Further, You will defend, indemnify and hold harmless Inductive Automation, its Affiliates and their respective officers, members, directors, employees, agents, successors, licensors and assigns against any losses, claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Your noncompliance with Section 12.1, including Your violation or alleged violation of any Export Laws; provided, that Inductive Automation reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims (and without limiting Your indemnification obligations with respect to such claims), and You agree to reasonably cooperate as requested by Inductive Automation in the defense of any claims.

TERM; TERMINATION.

Term. This Standard Contract commences on the Effective Date and is effective until terminated by a party, as described below. The term for each Order will be set forth therein.
Termination Without Cause. Unless otherwise set forth in an Order, either party may terminate this Standard Contract or any Order without cause on 60 days’ written notice. Licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Standard Contract. Inductive Automation will not provide refunds or credits for any partial subscription period(s) if the Standard Contract or an Order is terminated without cause.
Termination for Cause. Without limiting other remedies it may have, either party may terminate this Standard Contract or any Order immediately on written notice if (i) the other party materially breaches the Standard Contract or an Order, and fails to cure such breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes insolvent. Upon such termination, the following will apply: (i) all licenses granted under this Standard Contract will terminate immediately; (ii) all amounts due under any unpaid invoices will become due and payable immediately (for metered Offerings billed periodically based on usage, You must immediately pay for unpaid usage as of the termination date); and (iii) if Inductive Automation is in breach, You will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
Suspension. Inductive Automation may suspend use of the Offerings without terminating this Standard Contract during any period of material breach. Inductive Automation will give You reasonable notice before suspending the Offerings. Suspension will only be to the extent reasonably necessary.
Survival. Sections 1, 2.5, 4-6, 8.3 and 10-15 will survive the expiration or termination of this Standard Contract.

THIRD PARTY SOFTWARE. The Offerings may incorporate, embed or be bundled with third party software which requires You to accept and agree to be bound by notices and/or additional terms and conditions. Such required third party notices and/or additional terms and conditions are identified in the Order or Documentation and are made part of and incorporated by reference into this Standard Contract. By entering into this Standard Contract, You agree to review such terms and conditions set forth therein, if any, and Your use of the Offerings will be deemed to be Your acceptance thereof.

GENERAL.

Severability. If any provision of this Standard Contract is found by a competent judicial authority to be unenforceable in any respect, such provision will be limited or eliminated to the minimum extent necessary so that the remainder of this Standard Contract will continue in full force and effect.
Waiver. The failure by either party to enforce any provision of this Standard Contract will not be construed as a waiver of such provision. No waiver of any rights under this Standard Contract will be effective unless in writing signed by both parties, and the waiver of any breach or default will not constitute a waiver of any other right under this Standard Contract or any subsequent breach or default.
Entire Agreement. This Standard Contract is the entire agreement between You and Inductive Automation relating to the subject matter hereof. You acknowledge and agree that this Standard Contract controls all aspects of the relationship between You and Inductive Automation with regard to the Offerings and supersedes all written or oral statements, promises, representations and agreements between You and Inductive Automation. Neither Microsoft nor any of its Affiliates are a party to this Standard Contract and none of them will have any liability or obligations hereunder. Neither party will be bound by, and each party specifically objects to, any provision that is different from or in addition to this Standard Contract (whether proffered orally or in any quotation, purchase order, invoice, shipping document, online terms and conditions, acceptance confirmation, correspondence or otherwise), unless such provision is specifically agreed to in a writing signed by both parties.
Feedback. If You provide any ideas regarding the Offerings or Support Services, including suggestions for changes or enhancements (collectively, “Feedback”) in the course of using or evaluating the Offerings or Support Services, You agree that such Feedback may be used by Inductive Automation without condition or restriction.
Your Responsible Claims. You will defend, indemnify and hold harmless Inductive Automation, its Affiliates and their respective officers, managers, members, directors, employees, agents, successors, licensors and assigns against any losses, claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Your Responsible Claims; provided, that Inductive Automation reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims (and without limiting Your indemnification obligations with respect to such claims), and You agree to reasonably cooperate as requested by Inductive Automation in the defense of any claims.
Force Majeure. Neither party will be in default nor liable for any delay or failure to comply with this Standard Contract due to a natural disaster, pandemic, war or act of terrorism, act of government, or other circumstance beyond the reasonable control of the affected party (each a “Force Majeure Event”) for the duration of the Force Majeure Event; provided, that such party promptly notifies the other party of the occurrence of the Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event does not permit You to delay or fail to comply with Your payment obligations under this Standard Contract unless the Force Majeure Event results in the inability of the banking system to process payments.
Changes to this Standard Contract. You acknowledge and agree that Inductive Automation may modify this Standard Contract from time to time. Typically, when Inductive Automation makes modifications to the main body of this Standard Contract, the modifications will take effect at the next renewal of Your subscription and will automatically apply as of the renewal date unless You elect not to renew in accordance with this Standard Contract. In some cases (e.g., to address compliance with Laws, or as necessary for new features), Inductive Automation may specify that such modifications become effective during the then-current term of Your subscription. If the effective date of such modifications is during the then-current term of Your subscription and you object to the modifications, then (as Your exclusive remedy) You may terminate Your affected subscription(s) upon notice to Inductive Automation, and Inductive Automation will refund to You any fees You have prepaid for use of the affected Offerings for the terminated portion of the applicable term of Your subscription. To exercise this right, You must provide Inductive Automation with written notice of Your objection and termination within 30 days of Inductive Automation providing notice of the modifications through the Offerings, Order or Inductive Automation’s website. For the avoidance of doubt, any subscription is subject to the version of this Standard Contract in effect at the time of the subscription.
Notices. To be effective, notice under this Standard Contract must be given in writing. Each party consents to receiving electronic communications and notifications from the other party in connection with this Standard Contract. Each party agrees that it may receive notices from the other party regarding this Standard Contract: (i) by email to the email address designated by such party as a notice address for the Standard Contract; (b) by personal delivery; (c) by registered or certified mail, return receipt requested; or (d) by nationally recognized courier service. Notice will be deemed given upon written verification of receipt.
Assignment. You may not assign this Standard Contract, in whole or in part, without Inductive Automation’s written consent. Inductive Automation may freely assign this Standard Contract, in whole or in part, in Inductive Automation’s sole discretion. This Standard Contract will be binding upon and inure to the benefit of each party’s permitted successors and assigns.
Third Party Beneficiaries. Except as expressly set forth in this Standard Contract, there are no third party beneficiaries under this Standard Contract.
Governing Law and Jurisdiction. This Standard Contract will be governed by and construed in accordance with the Laws of the State of California, without regard to the principles of conflicts of law, and any dispute, controversy or claim arising out of, relating to or in connection with this Standard Contract will be brought exclusively in the state or federal courts of competent jurisdiction sitting in Sacramento, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Standard Contract. Each party consents to the personal jurisdiction, venue and convenience of such courts.
Independent Status of the Parties. The parties are independent contractors. This Standard Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
License Rights Applicable to the U.S. Government. The Offerings are commercial products that were developed exclusively at private expense. If the Offerings are acquired directly or indirectly for use by the U.S. Government, then the parties agree that the Offerings are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. The Offerings may only be used under the terms and conditions of this Standard Contract as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this Standard Contract, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal Laws. Inductive Automation will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.

STANDARD INDUCTIVE AUTOMATION CONTRACT FOR AZURE MARKETPLACE

Last updated: October 2, 2023