AXULUS MASTER AGREEMENT
May 2021

 
1. SUBJECT MATTER AND SCOPE 
AXULUS Master Agreement. 
The “AXULUS Master Agreement” (“AMA”) together with the “Data Processing Agreement” and the applicable AXULUS Order Form(s) which is agreed between the Industrie Reply GmbH, Bartholomäusweg 26, 33334 Gütersloh, Germany (“Supplier”, “we”, “us”, “our” or “Data Processor”) and the contracting person or entity (“Client”, “you”, “your” or “Data Controller”) (collectively referred to as the “Parties”) indicated in the AXULUS Order Form governs your use of certain Services provided to you by Supplier from time to time on or in relation to the AXULUS suite of software subject to mutual agreement on respective Order Forms, whereas:

Industrie Reply GmbH is a company belonging to the Reply Group and owns intellectual property rights in the suite of software products called AXULUS.

The Supplier shall use the AXULUS suite to deliver the Service. The purpose of the Service is to support the execution of Industrial Internet of Things (IIoT), R&D and general Solution Management innovation, configuration and roll-out activities (Value Scaling Activities) of any legal person under the terms of this Agreement and in compliance with the below-listed conditions.
Contract Formation
Supplier is only obliged to provide you with Service if we accept your Order Form for such Service. Each Order Form, upon acceptance by us, shall be binding on the Parties.
2. PERSONAL DATA PROCESSING
2.1. The supplier will process any personal data under the performance of this contract as a processor according to the Data Processing Agreement.
2.2. In the event of any inconsistencies between this Agreement and the Data Processing Agreement, the parties agree that this Agreement shall prevail.
3. PURPOSE OF AND CONDITIONS FOR SERVICE ACCESS
3.1. Upon registration, the Admins and Users shall:
(i)	ensure that the Data entered are accurate, complete, and truthful, taking on full responsibility for them
(ii)	undertake to update their Data and change them in the event of any changes
(iii)	declare, under their own responsibility, that they are at least eighteen years of age.
3.2. The Supplier reserves the right to modify the Services at its discretion in terms of incremental functions, including elimination of certain functions or adding new ones. If the Order Form includes a multi-year agreement, the listed services shall be maintained, and the price shall not be changed until the next renewal for that specific agreement.
3.3. It is acknowledged that the Supplier shall be free at any time to make any changes to the Service, including but not limited to changes to content structure or to Service graphics.
4. SERVICE USE AND RESTRICTIONS
4.1 The Supplier grants the Client a worldwide non-exclusive and non-transferable right to use the Service, in accordance with the terms and conditions of this Agreement. All rights not expressly granted are rights of the Supplier.
4.2 The Client undertakes not to:
(i)	license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially use or make available to any third party the Service or its Content 
(ii)	modify or create derivative works based upon the Service or its Content 
(iii)	create Internet “links” to the Service or “frame” or “mirror” any Content on any other server and/or wireless or Web-based device 
(iv)	decode or access the Service in order to 
a.	create a competitive product or service, 
b.	create a product using ideas, features, functions or graphics that are similar to the Service, or 
c.	copy any ideas, features, functions, or graphics of the Service.
4.3 Individual User Accounts may not be shared or used by more than one single User.
4.4 The Client shall use the Service only for internal business purposes and undertakes not to: 
(i)	send any spam or otherwise duplicative or unsolicited messages in violation of applicable laws 
(ii)	send or store any illegal, obscene, threatening, libelous, or otherwise unlawful or abusive material, including material harmful to children or breaching third-party privacy rights 
(iii)	send or store any material containing viruses, worms, Trojan horses or other harmful codes, files, scripts, agents or programs that could damage computers and software 
(iv)	interfere with or disrupt the integrity or performance of the Service or the data contained therein 
(v)	attempt to gain unauthorized access to the Service or its related systems and networks.
5. CLIENT’S RESPONSIBILITIES
5.1. The Client is responsible for all activities performed by its User Accounts and shall comply with any applicable local, state, national and foreign laws, any treaties and regulations on the use of the Service, including those concerning data privacy, international communications and the transmission of technical or personal data.
5.2. The Client shall: 
(i)	immediately inform the Supplier of any unauthorized use of any password or Account or of any other known or suspected security violation 
(ii)	immediately report to the Supplier and use reasonable efforts to immediately stop any unauthorized copy or distribution of the Content which has become known or suspected by the Client or its Users, and shall not impersonate another User or use false ID information to access or use the Service.
6. INFORMATION REGARDING THE ACCOUNTS
6.1. The Supplier does not own any of the Data, information or material sent by the Client while using the Service (Data). 
6.2. Without prejudice to privacy legislation, the Client shall have sole liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all of the Data. The Supplier shall in no case be held liable. 
6.3. The Users and Admins shall promptly report any login system malfunction or use of the Data by third parties, in order to allow the Supplier to solve the problem, even by modifying or deleting the Account if necessary. 
6.4. Users / Admins may change their Accounts and/or Data whenever necessary and if enabled to do so.
6.5. The Supplier reserves the right to suspend the Account of a User / Admin, without incurring any penalties and/or sanctions, for any reason and without prior notice, in the event of unauthorized and/or improper use of the Supplier’s Technology and/or Service. Use of the Account shall be restored only after that the grounds giving rise to the suspension have ceased definitively. The purpose of this point is to protect the Client, for example, against the improper use of one of its User Accounts by Third Parties.
6.6. The Supplier, at its sole discretion, may also suspend the validity of a password, Account or the right to use the Service if the Client breaches or otherwise behaves in a manner not in line with the provisions of this Agreement. Furthermore, the Supplier may decide to interrupt an Account granted free of charge at its own discretion and at any time. 
6.7. Should this Agreement no longer be effective (for whatever reason, except for breach by the Client), the Supplier shall provide the Client with a file containing the Data within 30 days from termination of the Agreement, upon request by the Client at the termination date. If no request is made by the Client, the Supplier undertakes to delete the Data. Should the Data breach the rights of any third parties or applicable laws and regulations, the Supplier reserves the right to retain, remove and/or delete the Data without informing the Client in advance.
6.8. In the event of termination by the Supplier of this Agreement due to non-payment by the Client of the amounts owed by it, the Client’s right to access and/or use the Data shall be immediately revoked.
7. INTELLECTUAL PROPERTY
7.1. The Supplier is the exclusive owner of all the rights, titles and interests, including the intellectual property rights, any rights in the Technology, Content and Service of AXULUS, and of any suggestions, ideas, improvement requests, comments, recommendations or any other information relating to the Service, provided by the Client or any other party. This Agreement is not a sale and does not transfer to the Client any ownership rights in or related to the Service, Technology or Intellectual Property Rights for which the Supplier shall remain the exclusive owner. 
7.2. The name AXULUS, the AXULUS logo and the product names associated with the Service are trademarks owned by the Supplier (or third parties other than the Client). The Supplier does not grant any right or license to the Client to use them without prior mutual written agreement.
8. FEE AND FURTHER COSTS 
8.1. The Client shall pay all the expenses and fees related to its Accounts based on the fees, costs and invoicing terms in effect at the time a fee or expense is due and payable. Fees shall be calculated as determined in the Order Form(s).
8.2. Fees are calculated at the end of each period according to the ordered services in the Order Form. If Client during the period exceeds the business parameters agreed in the order form, Industrie Reply retains the right to request and respective upgrade to match to the Client’s usage.
8.3. The Supplier shall inform the Client – also by email if possible and with at least 15 days’ prior notice – about any increase in costs that shall become effective from the date of renewal of the Service. The costs for additional services used by the Client shall be charged according to the prices quoted in the relevant price list. All expenses charged by the Supplier are exclusive of taxes, duties or charges imposed by the tax authorities. The Client shall be responsible for the payment of such taxes, duties and charges.
8.4. Payment obligations may not be cancelled by the Client. The Client is responsible for the payment of all User Accounts and for the upgrades / options Services activated during the entire Period of use, regardless of whether these upgrades / options Services are actually used or not. Only Admins are allowed to add/change any upgrades/ options Services by activating these functions in AXULUS and/or signing an additional Order Form.
8.5. The activated upgrades / options Services shall comply with the following:
(i)	their duration shall be coherent with the general subscription to an AXULUS plan as specified in the Order Form
(ii)	their fees applied shall be in line with the then current pricing structure of AXULUS upgrades / options Services
8.6. It is understood that the maximum storage space provided to the Client, at no additional cost, is 100GB if AXULUS is hosted in the Suppliers tenants and unless otherwise specified in an Order Form. If the required amount of storage space exceeds the above limits, the Client shall be required to purchase additional storage. The Supplier shall inform the Client when the average storage space used reaches approximately 90% of maximum space. The Supplier reserves the right to establish or change the general Data storage methods and limits.
8.7. All prices and relevant conditions are confidential. The Client undertakes not to disclose them to third parties.
9.  INVOICING
9.1. The Supplier shall charge the Client for the payment of the Service Fee and for the cost of any professional Services delivered, as specified in the Order Form. The Supplier shall automatically renew the User Accounts at the end of the Period as agreed in the Order Forms and automatically issue the relevant invoice, unless specified otherwise in the Order Form or unless written cancellation from the Client is received by the Supplier prior to expiration of the non-renewal notice deadline as specified in the Order Form.
9.2. Payments shall be made upfront for the period in line with the payment terms specified in the Order Form.  
10. CONTACT INFORMATION
The Client undertakes to provide the Supplier with complete and accurate invoicing information (together with its contact details). Such information includes its legal name, postal address, e-mail address and the name and telephone number of an authorized contact person for invoicing purposes and the name and telephone number of the Admin(s). Should any changes occur, the Client undertakes to update this information within 10 days. If the contact details provided prove to be false or otherwise incorrect, the Supplier reserves the right to interrupt the Client’s access to the Service, in addition to any other legal remedy.
11. NON-PAYMENT AND SUSPENSION
11.1. In addition to any other rights granted to the Supplier under this Agreement and/or applicable law, the Supplier reserves the right to suspend the Client’s right of access to the Service if the Client does not fulfil the payment obligations provided herein. Late payment of invoice amounts is subject to the application of the then current reference interest rate as announced by the European Central Bank from time to time or the highest rate as permitted by law (if any), in addition to any collection costs.
11.2. Should this Agreement no longer be effective, for any reason whatsoever, the Client shall be required to pay the remaining balance due, calculated according to previous article 10. In this respect, the Supplier shall issue an invoice for these unpaid fees and costs. 
11.3. The Supplier reserves the right to charge reconnection costs if the Service provided to the Client is suspended and then reactivated. The Client accepts and acknowledges that the Supplier has no obligation to retain the Data and that such Data may be irreversibly if the Client has not fulfilled its payment obligations for 90 days or more.
 
12. EXPIRY, RENEWAL AND CHANGES
12.1. This Agreement is valid from the Start Date for the duration determined and agreed upon in each Order Form, from the initial date specified in the Order Form (i.e. for the Period of Use)
12.2. This Agreement and the related Order Form(s) shall be automatically renewed at the end of the Period of Use, unless specified otherwise in the Order Form or unless written cancellation from the Client is received by the Supplier prior to expiration of the non-renewal notice deadline as specified in the Order Form. The renewal shall be valid for further terms equivalent to the Period of Use initially agreed upon. The autorenewal shall be based on the fees paid during the initial period and specified in the Order Form.
The autorenewal also applies to any upgrades/option Services activated or ordered during the initial period.
13. TERMINATION AND WITHDRAWAL
13.1. Any breach of the payment obligations and any unauthorized and/or improper use of the Supplier’s Technology and/or Service by the Client shall be considered a serious material breach of this Agreement and shall give the Supplier the right to immediately terminate the Agreement.
13.2. Termination for Convenience: The subscription Period and any renewal deviating from the autorenewal will be specified in the Order Form. During a subscription Period the AMA and/or an Order Form(s) may not be terminated for convenience.
13.3. Termination for Cause: Either Party may terminate a Service for cause in case of the other Party’s material breach, if such breach remains uncured for a period of 30 days from receipt of notice of the breach by the other Party. Only the Service affected by the material breach may be terminated. Events that entitle Supplier to terminate a Service and/or the AMA for cause include: (i) acts or omissions that entitle Supplier to a suspension or limitation as per Section 22 that remain uncured for a continuous period of 60 days; (ii) our obligation to comply with Laws or requests of a governmental body; (iii) a change in control of you and/or your Affiliates which, according to our reasonable opinion, adversely affects our position, rights or interests; and (iv) your ceasing to operate in the ordinary course, making an assignment for the benefit of creditors or similar disposition of your assets, or becoming the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
13.4. Effect of Termination. On termination of a Service for any reason, you shall immediately: (i) cease using the affected Services; and (ii) return or, if instructed by us, destroy or delete all Materials relating to the affected Services. The termination of the AMA shall be deemed to constitute the termination of each of the Services. Except as otherwise set out in the AMA, you must pay to Supplier all fees due at the time of termination and all fees paid by Client to Supplier are non-refundable. In case of termination for cause by Client in accordance with Section 13.4 (i), Supplier will refund a reasonable portion of any prepaid amounts for the applicable Service for the remainder of the Subscription Term. Any terms and conditions of the AMA, which by their nature should survive a termination or expiry, shall survive, and continue in full force and effect after such termination or expiry.
14. LIMITATION OF LIABILITY
14.1. For services and deliverables the customer's claim for damages due to defects is excluded.
14.2. The aforementioned limitations do not apply for damages caused by deliberate acting or gross negligence, damages due to the harm of life, body or health, for guarantees or as far as claims out of the Product Liability Act (Produkthaftungsgesetz) are affected. It furthermore doesn´t apply for the infringement of so-called cardinal duties (Kardinalpflichten) – (duties whose fulfillment in the first place enable the duly performance of the contract and on whose compliance the Client regularly can trust) and all other cases in which a limitation of liability is not permitted by law.
14.3. In case of damages caused by gross negligence Reply’s liability is limited to an amount equal to 150% (in words: one hundred and fifty percent) of the total contract value.
14.4. Contract value is the entire compensation as defined under clause “Commercial Terms” (net of VAT and without possible additional T&M parts).
14.5. Any liability for atypical or consequential damage (especially loss of profit) is excluded. The liability for the loss of data is limited to the typical recovery effort.
14.6. The Supplier makes no representations and gives no warranties with respect to the reliability, truthfulness, availability, accuracy, or completeness of the Service. Although the Supplier adopts highly innovative and advanced technological solutions to ensure that the Service is constantly accessible and free of any defects of any kind, it hereby states that the Service may not be accessible and/or compatible with the computer systems used to access it or be free from errors, viruses and/or other computer malfunctions. Consequently, anyone accessing the Service expressly acknowledges and accepts that its use must be considered on an “as available” basis.
14.7. The Supplier does not represent and warrant that:
(i)	Service use shall be on time, with no downtime, or free from errors or vulnerabilities, or that the Service shall be able to operate in combination with any hardware, software, system or data whatsoever
(ii)	the Service shall meet the Client’s requirements or expectations
(iii)	any data stored are accurate and reliable
(iv)	the quality of the products, services, information, or other material purchased or obtained by the Client through the Service meets the Client’s requirements or expectations
(v)	the service or the server(s) providing the Service are free from viruses or other harmful components.
14.8. AXULUS is provided “AS IS” and according to availability. The Supplier provides no warranty regarding its fitness for a particular purpose or compliance with laws on exclusive property rights. The Supplier cannot guarantee and refrains from promising any specific results arising from use of the Services.In no case shall the Supplier be liable vis-à-vis the Client and/or any third parties in general, for the behavior of the Client’s Admins and/or Users, either on the Web or in any other situation, or for any potential damages – including direct, indirect, consequent, exemplary, incidental, special, punitive or consequential damages or of any other type and nature, including damages for loss of profit – and/or losses (including personal injuries even with fatal consequences) – arising from the use of the Service, even if the Supplier was advised that such damage could occur.
14.9. Subject to the above, the Supplier may be liable vis-à-vis the Client only in the case that one of the service levels defined in the Order Forms has not been complied with. The relevant amount may in no case exceed (regardless of the nature and/or the amount of the damage) the total amount of the Fee paid by the Customer in the quarter in which failure to reach the service level occurred.
14.10. The Supplier shall not be held liable for any technical problems or malfunctions of any telephone network or line, on-line IT systems, servers or providers, computer equipment, software, non-functioning of e-mail or audio/video reproduction programs on account of  technical problems or traffic congestion on the Internet or on the Service, due to technical problems related to one of the infrastructure providers used (by way of example Microsoft Azure) which AXULUS relies on, or by a number of these factors, including damage to people or objects related to or resulting from taking part in activities or downloading material through AXULUS. Furthermore, the Supplier – although accepting (if within the scope of its responsibility) to take action in a reasonably short time to remove any Service malfunction or disruption that may arise and/or be reported to the Supplier by the Admins or Users – may not  guarantee that Service malfunctions shall not occur, making the Service temporarily unavailable or likely to cause possible errors, omissions, interruptions, deletions, defects, delay in operation or transmission, line failure, theft, destruction, unauthorized access or alteration of communication.
14.11. The Supplier shall not be liable for any disclosure, duplication, modification, review or tampering with sensitive/private Content regarding the legal persons using the Service offered by the Supplier.
14.12. The Supplier shall be liable for any damages resulting from non-compliance with or non-observance of the instructions set out in “Annex 1 Deed for the Appointment of Data Processor”, of any subsequent instructions submitted in writing by the Client, and of the GDPR provisions specifically addressing the Data Processor within a limit of 100% of the value of the Services Agreement. It is understood that in no case shall the Supplier, and in general any company belonging to the Supplier’s Group, its agents, employees and/or representatives, be liable vis-à-vis the Client for: (i) any indirect, incidental, special, punitive and/or consequential damage of any kind; (ii) any loss of profit (whether direct or indirect); (iii) any loss of income (whether direct or indirect); or (iv) any damage to reputation, related to or resulting from this Agreement.
14.13.  The warranty period shall be limited to 12 months after delivery.
15. ASSIGNMENT AND CHANGE OF CONTROL
15.1. This Agreement may not be assigned or transferred to third parties, either in whole or partially, by the Client not even as part of a sale or transfer of business unless agreed in writing by the Supplier. Similarly, the Client may not assign any of the rights resulting from the performance of the Agreement. The Supplier may transfer all or part of this Agreement – simply by notifying the Client – to any company belonging to its group and/or to any third parties as part of a sale or transfer of business in respect of which the Services are performed.
15.2. Any actual or intended change in the controlling stake (50% or higher) of the Client’s company which leads or may lead to the ownership or to the direct or indirect control of the Client’s business by a direct competitor of the Supplier, shall give the Supplier the right to immediately withdraw from this Agreement for just cause, subject to prior written notice.  
16. INDEMNIFICATION
16.1. Access to the Site and/or use of the Service shall imply acceptance of this Agreement and the obligation to indemnify and hold the Supplier – including its subsidiaries and affiliates, its officers, representatives, partners, employees and/or contract workers, including any external staff – harmless from and against any damage, liability, complaint or claim for compensation, including reasonable legal fees, brought forward by any third parties resulting from use of the Service which does not comply with this Agreement and with applicable regulations and/or laws.
16.2. Indemnification of the Supplier as referred to in this clause shall include any Data and Content used by the Supplier, in compliance with this Agreement.
17. EXPORTRT CONTROL AND SACTIONS COMPLIANCE
17.1. Export and Sanctions Laws. Client agrees to comply with all applicable sanctions (including embargoes) and (re-)export control laws and regulations including (to the extent applicable) those of the Federal Republic of Germany, the European Union, and the United States of America (collectively “Export and Sanctions Laws”).
17.2. Client’s Obligations. Client is obliged: (i) to deny and prevent access to Services from any location prohibited by or subject to sanctions or license requirements according to Export and Sanctions Laws; (ii) to continuously check any of Client’s customers and any Users against applicable sanctioned party lists; (iii) not to grant access to the Services, including any materials, or the Services to any individual or entity designated on any of these lists. 
17.3. Information Requirements. If required to enable authorities or Supplier to conduct export control or sanctions compliance checks, you, upon request by Supplier, shall promptly provide Supplier with all information pertaining to the particular destination, end user, and particular intended use of Services provided by Supplier, including information on Client, Client’s customers and Users.
17.4. Right to Withhold Performance. Supplier shall not be obligated to perform under the AMA if such performance is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. Client further acknowledge that Supplier may be obliged under Export and Sanctions Laws applicable to Supplier to limit or suspend access by Client and/or Users to the Services.
18. MISCELLANEOUS 
18.1. Changes and amendments to this agreement must be made in writing. This also applies to the cancellation or amendment of this written form requirement.
18.2. If individual provisions of this agreement are void or ineffective in whole or in part, this shall not affect the validity of the remainder of this agreement. The void or invalid provision shall be replaced by a valid provision which comes as close as possible to the meaning and purpose of the void or invalid provision and to what the parties intended in economic terms with the void or invalid provision. The same shall apply in the event of a gap in the provisions.
18.3. This agreement shall be governed by the laws of the Federal Republic of Germany. Place of performance and place of jurisdiction for all differences is as far as legally admissible - Munich.