Terms of Service
Terms of Service
Effective through August 25, 2022
TERMS OF SERVICE
This Software-as-a-Service Agreement (“Agreement”) is made between Axion Ray Inc., (“Axion” or “Service Provider”), a Delaware corporation, and the customer identified on the Order Form (“Customer”) (each, a “Party” and collectively, the “Parties”). The provisions of this Agreement will apply to the Services and the Service Provider’s software-as-a-service platform and related applications that are further described in the Order Form (“Service Provider Platform”) and shall govern all Order Forms entered into between Axion and the Customer.
1. PROVISION OF SERVICES
1.1 Access. Subject to the terms and conditions of this Agreement, Service Provider will provide the Services set forth in an Order Form (or any separate, written amendments or supplements thereto signed in writing by both parties that reference this Agreement) (“Services”). Service Provider will provide to Customer the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Service Provider Solution in connection with the Services (“Access Protocols”). Customer will prevent unauthorized access to, or use of, the Service Provider Solution, and notify Service Provider promptly of any such unauthorized use known to Customer. Customer is responsible for managing its employees’ or agents’ access to the Service Provider Solution, including by immediately notifying Service Provider of any unauthorized access.
1.2 Customer Obligations. The Service Provider Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Service Provider. Customer will not, and will not permit any other party to: (a) allow any third party to access the Service Provider Solution, except as expressly allowed in an Order Form; (b) modify, adapt, alter or translate the Service Provider Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Service Provider Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Service Provider Solution, except as permitted by law; (e) interfere in any manner with the operation of the Service Provider Solution or the hardware and network used to operate the Service Provider Solution; (f) modify, copy or make derivative works based on any part of the Service Provider Solution or Documentation; (g) access or use the Service Provider Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Service Provider Solution through any unapproved interface; or (i) otherwise use the Service Provider Solution in any manner inconsistent with applicable law. Customer bears responsibility to obtain any telecommunications or computer hardware or software required to access the Service Provider Solution.
2. CUSTOMER INFORMATION
2.1 Customer Responsibility. “Customer Information” means any data and information provided or submitted by, or on behalf of, Customer or its employees for use in connection with the Services, including without limitation any such personally identifiable information. The Customer Information is the exclusive property of Customer. Customer is solely responsible for the accuracy, quality and legality of Customer Information. Customer will obtain all consents and permissions needed for Service Provider to use the Customer Information to provide the Services. Customer will have access to the Customer Information and will be responsible for all changes to or deletions of the Customer Information and the security of all passwords and other Access Protocols required in order to access the Service Provider Solution. Customer has the responsibility to employ appropriate security measures to protect the Customer Information, to comply with applicable laws in connection with the use of the Services and Customer Information. Customer acknowledges that, to the extent that Customer Information is integrated with third party software offerings, the security of such software systems is the responsibility of Customer or such third party vendor. Service Provider is solely responsible for its own strategic, operational and other business and legal decisions with regard to its use of the Services, and Service Provider shall bear no responsibility or liability for any actions or inactions by Customer or any third party acting on its behalf.
2.2 Service Provider Responsibility. Service Provider shall comply with all applicable laws in connection with the provision of the Services, including as relates to its processing of any Customer Information. Service Provider will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Information.
3. PAYMENTS
3.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Service Provider under this Agreement, Service Provider will be paid the fees as set forth in an Order Form (“Fees”). Except as otherwise provided in an Order Form, payment obligations are non-cancelable and all amounts paid are nonrefundable except as otherwise agreed by Service Provider.
3.2 Payments. Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Service Provider reserves the right (in addition to any other rights or remedies Service Provider may have) to discontinue the Service Provider Solution and suspend all Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
3.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Service Provider’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Service Provider Solution to Customer. Customer will make all payments of Fees to Service Provider free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Service Provider will be Customer’s sole responsibility, and Customer will provide Service Provider with official receipts issued by the appropriate taxing authority, or such other evidence as the Service Provider may reasonably request, to establish that such taxes have been paid.
4. CONFIDENTIALITY
4.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Information will be considered Confidential Information of Customer.
4.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Service Provider). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
4.3 Exceptions. The confidentiality obligations set forth in Section 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
4.4 Feedback & Aggregate Data. Both during and after the term, Service Provider may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, and (b) collect, use, and analyze data provided to Service Provider or otherwise arising during the use of the Services, in order to improve and enhance the Service Provider Solution and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Service Provider, and solely to the extent such data is aggregated or otherwise de-identified in a manner that does not identify Customer, share and commercialize such data.
5. TERM AND TERMINATION
5.1 Term. Notwithstanding anything to the contrary in an Order Form, this Agreement will begin on the effective date of the first Order Form between the Parties and will continue in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).
5.2 Order Form Term and Autorenewal. Each Order Form shall have an initial term specified on the Order Form (“Initial Term”). Thereafter, the Order Form will automatically renew for additional terms of one (1) year (“Renewal Term”) unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term.
5.3 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
5.4 Termination by Axion. Axion may at any time terminate its agreement with Customer if: (a) Axion is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful); (b) the provision of the Service to Customer by Axion is, in Axion’s opinion, no longer commercially viable; or (c) Axion has elected to discontinue the Service (or any part thereof). In the event Axion does not terminate this Agreement for cause, Axion will refund any unused balance of Customer.
5.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and Service Provider Solution shall cease and any amounts owed to Service Provider under this Agreement will become immediately due and payable. Sections 5, 6.3, and 7 to 9 will survive expiration or termination of this Agreement.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
6.2 Service Provider Warranties. Service Provider represents and warrants that it will provide the Service under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with applicable laws, rules and regulations.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SERVICE PROVIDER SOLUTION ARE PROVIDED “AS IS,” AND SERVICE PROVIDER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SERVICE PROVIDER GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. SERVICE PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO SERVICE PROVIDER IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL SERVICE PROVIDER HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. INDEMNIFICATION
8.1 By Service Provider. Service Provider will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Service Provider makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Service Provider Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Service Provider will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with this Agreement or (ii) any use of the Service in combination with other products, services, software or data not supplied by Service Provider.
8.2 By Customer. Customer will defend at its expense any claim, action or suit brought against Service Provider (including reimbursement of Service Provider’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to any Customer Information or any improper or unauthorized use of the Service.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9. MISCELLANEOUS
9.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.2 Export & Foreign Use. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Service Provider, or any products utilizing such data, in violation of the United States export laws or regulations. Service Provider make no representation that the Service is appropriate or available for use in locations other than the United States and, if Customer uses the Service from outside the United States, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
9.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
9.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
9.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
9.8 Independent Contractors. Customer’s relationship to Service Provider is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Service Provider.
9.9 Notices. All notices required or permitted under this agreement must be delivered in writing by emailing the point of contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice to the other party.
9.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
9.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Service Provider.
If there are any questions regarding these Terms, please contact:
contact@axionray.com
Effective through August 25, 2022
TERMS OF SERVICE
This Software-as-a-Service Agreement (“Agreement”) is made between Axion Ray Inc., (“Axion” or “Service Provider”), a Delaware corporation, and the customer identified on the Order Form (“Customer”) (each, a “Party” and collectively, the “Parties”). The provisions of this Agreement will apply to the Services and the Service Provider’s software-as-a-service platform and related applications that are further described in the Order Form (“Service Provider Platform”) and shall govern all Order Forms entered into between Axion and the Customer.
1. PROVISION OF SERVICES
1.1 Access. Subject to the terms and conditions of this Agreement, Service Provider will provide the Services set forth in an Order Form (or any separate, written amendments or supplements thereto signed in writing by both parties that reference this Agreement) (“Services”). Service Provider will provide to Customer the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Service Provider Solution in connection with the Services (“Access Protocols”). Customer will prevent unauthorized access to, or use of, the Service Provider Solution, and notify Service Provider promptly of any such unauthorized use known to Customer. Customer is responsible for managing its employees’ or agents’ access to the Service Provider Solution, including by immediately notifying Service Provider of any unauthorized access.
1.2 Customer Obligations. The Service Provider Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Service Provider. Customer will not, and will not permit any other party to: (a) allow any third party to access the Service Provider Solution, except as expressly allowed in an Order Form; (b) modify, adapt, alter or translate the Service Provider Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Service Provider Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Service Provider Solution, except as permitted by law; (e) interfere in any manner with the operation of the Service Provider Solution or the hardware and network used to operate the Service Provider Solution; (f) modify, copy or make derivative works based on any part of the Service Provider Solution or Documentation; (g) access or use the Service Provider Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Service Provider Solution through any unapproved interface; or (i) otherwise use the Service Provider Solution in any manner inconsistent with applicable law. Customer bears responsibility to obtain any telecommunications or computer hardware or software required to access the Service Provider Solution.
2. CUSTOMER INFORMATION
2.1 Customer Responsibility. “Customer Information” means any data and information provided or submitted by, or on behalf of, Customer or its employees for use in connection with the Services, including without limitation any such personally identifiable information. The Customer Information is the exclusive property of Customer. Customer is solely responsible for the accuracy, quality and legality of Customer Information. Customer will obtain all consents and permissions needed for Service Provider to use the Customer Information to provide the Services. Customer will have access to the Customer Information and will be responsible for all changes to or deletions of the Customer Information and the security of all passwords and other Access Protocols required in order to access the Service Provider Solution. Customer has the responsibility to employ appropriate security measures to protect the Customer Information, to comply with applicable laws in connection with the use of the Services and Customer Information. Customer acknowledges that, to the extent that Customer Information is integrated with third party software offerings, the security of such software systems is the responsibility of Customer or such third party vendor. Service Provider is solely responsible for its own strategic, operational and other business and legal decisions with regard to its use of the Services, and Service Provider shall bear no responsibility or liability for any actions or inactions by Customer or any third party acting on its behalf.
2.2 Service Provider Responsibility. Service Provider shall comply with all applicable laws in connection with the provision of the Services, including as relates to its processing of any Customer Information. Service Provider will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Information.
3. PAYMENTS
3.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Service Provider under this Agreement, Service Provider will be paid the fees as set forth in an Order Form (“Fees”). Except as otherwise provided in an Order Form, payment obligations are non-cancelable and all amounts paid are nonrefundable except as otherwise agreed by Service Provider.
3.2 Payments. Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Service Provider reserves the right (in addition to any other rights or remedies Service Provider may have) to discontinue the Service Provider Solution and suspend all Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
3.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Service Provider’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Service Provider Solution to Customer. Customer will make all payments of Fees to Service Provider free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Service Provider will be Customer’s sole responsibility, and Customer will provide Service Provider with official receipts issued by the appropriate taxing authority, or such other evidence as the Service Provider may reasonably request, to establish that such taxes have been paid.
4. CONFIDENTIALITY
4.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Information will be considered Confidential Information of Customer.
4.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Service Provider). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
4.3 Exceptions. The confidentiality obligations set forth in Section 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
4.4 Feedback & Aggregate Data. Both during and after the term, Service Provider may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, and (b) collect, use, and analyze data provided to Service Provider or otherwise arising during the use of the Services, in order to improve and enhance the Service Provider Solution and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Service Provider, and solely to the extent such data is aggregated or otherwise de-identified in a manner that does not identify Customer, share and commercialize such data.
5. TERM AND TERMINATION
5.1 Term. Notwithstanding anything to the contrary in an Order Form, this Agreement will begin on the effective date of the first Order Form between the Parties and will continue in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).
5.2 Order Form Term and Autorenewal. Each Order Form shall have an initial term specified on the Order Form (“Initial Term”). Thereafter, the Order Form will automatically renew for additional terms of one (1) year (“Renewal Term”) unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term.
5.3 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
5.4 Termination by Axion. Axion may at any time terminate its agreement with Customer if: (a) Axion is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful); (b) the provision of the Service to Customer by Axion is, in Axion’s opinion, no longer commercially viable; or (c) Axion has elected to discontinue the Service (or any part thereof). In the event Axion does not terminate this Agreement for cause, Axion will refund any unused balance of Customer.
5.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and Service Provider Solution shall cease and any amounts owed to Service Provider under this Agreement will become immediately due and payable. Sections 5, 6.3, and 7 to 9 will survive expiration or termination of this Agreement.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
6.2 Service Provider Warranties. Service Provider represents and warrants that it will provide the Service under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with applicable laws, rules and regulations.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SERVICE PROVIDER SOLUTION ARE PROVIDED “AS IS,” AND SERVICE PROVIDER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SERVICE PROVIDER GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. SERVICE PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO SERVICE PROVIDER IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL SERVICE PROVIDER HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. INDEMNIFICATION
8.1 By Service Provider. Service Provider will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Service Provider makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Service Provider Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Service Provider will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with this Agreement or (ii) any use of the Service in combination with other products, services, software or data not supplied by Service Provider.
8.2 By Customer. Customer will defend at its expense any claim, action or suit brought against Service Provider (including reimbursement of Service Provider’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to any Customer Information or any improper or unauthorized use of the Service.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9. MISCELLANEOUS
9.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.2 Export & Foreign Use. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Service Provider, or any products utilizing such data, in violation of the United States export laws or regulations. Service Provider make no representation that the Service is appropriate or available for use in locations other than the United States and, if Customer uses the Service from outside the United States, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
9.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
9.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
9.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
9.8 Independent Contractors. Customer’s relationship to Service Provider is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Service Provider.
9.9 Notices. All notices required or permitted under this agreement must be delivered in writing by emailing the point of contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice to the other party.
9.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
9.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Service Provider.
If there are any questions regarding these Terms, please contact:
contact@axionray.com
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