AXI Terms & Conditions
Effective Date: These Terms apply as of May 1, 2021.
General terms
These General Terms apply to your account with AXI and to our Offerings, and constitute a binding contract between us.
1. Acceptance
By accepting these General Terms during your account registration or subscription process, or by accessing or using our Offerings, you confirm your acceptance of these General Terms and other applicable Terms and your agreement to be a party to this binding contract. If you do not agree, you do not have the right to access or use our Offerings.
You agree to these Terms on behalf of the company or other legal entity for which you are acting (for example, as an employee or contractor) or, if there is no company or legal entity, on behalf of yourself as an individual (in either case, “You”). You represent and warrant that you have the right and authority (as well as the capacity—for example, you are of sufficient legal age) to act on behalf of and bind such entity (if any) and yourself.
Additional capitalized terms are defined in these Terms and in the "Definitions" section (Section 16) below.
2. Account & Offerings
2.1 Account Responsibilities
To subscribe to an Offering, You may need an account. You are responsible for anyone who obtains, accesses or uses Offerings through You or Your account (including Your Authorized Users). This means (among other things) that You are responsible for Your Authorized Users’ compliance with these Terms, including their use of their accounts, as though each of the Authorized Users is You. In certain cases, Your Authorized Users may be required to set up individual accounts or otherwise agree to applicable terms in order to obtain, access or use Offerings, but that requirement does not affect Your responsibility for Your Authorized Users.
You are also responsible for the security of Your account and all activity associated with Your account. This means (among other things) that You (i) will ensure that only Your Authorized Users use Offerings associated with Your account, and (ii) will secure and not share user IDs or passwords (except with authorized account administrators). If You suspect unauthorized use of Your account, please contact us at connect@axisystem.com.
You will ensure that all Your account information (including any information that You or Your Authorized Users provide in connection with Your registration for any Offering) is, and continues to be, true and complete.
2.2 Account Benefits & Offerings
Your account is designed to provide a place for You to access and manage Your account information and obtain rights to Services, Platform and Software, including free benefits. Your account is designed to be accessible virtually anywhere, anytime via the web at app.axisystem.com or at other successor or alternative AXI sites.
Your account features may include:
Single sign-in to AXI sites and services
Management of Your profile, security settings, linked accounts and preferences
Management of Your subscriptions
Access to Offerings
Access to technical support, learning resources and subscription news
Usage information regarding Your projects, reports, and analytics
Your account offerings may include:
· searching for and locating certified firms
· reviewing certified firm profiles and background
· generating search, goal, and availability reports
· creating outreach campaigns inviting or notifying certified firms
· generating good faith efforts reports
· creating waiver request packages
2.3 Availability
AXI shall use commercially reasonable efforts to make the Services, Platform and Software Offerings available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time and scheduled maintenance. Notwithstanding the foregoing, You understand that, on occasion, that the Services, Platform and Software may be inaccessible, unavailable or otherwise inoperable for any reason including, but not limited to, the following: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; and/or (c) causes beyond AXI’s control or which are not reasonably foreseeable by AXI including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. You agree that AXI has no control over, and shall not be liable for, the availability of Services, Platform and Software on a continuous and uninterrupted basis. Further, You understand and agrees that AXI’s failure to provide access to the Services, Platform and Software because of technical difficulties shall not be considered a breach and/or failure to meet its obligations under this he Agreement.
3. Ownership
The Services, Platform and Software, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to same, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of AXI. AXI reserves all rights not expressly granted herein. Subject to the restrictions set forth in this Agreement, AXI grants to You a personal, nonexclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to access the Services, Platform and Software, including a license to install and/or run the Software, solely for the purpose of accessing and using the Services and Platform in accordance with this Agreement. The Services, Platform and Software are provided solely and exclusively for Your internal business use and shall not be used for any illegal purpose or in any manner inconsistent with the provisions of this Agreement. You acknowledges that the Services, Platform and Software were developed, compiled, prepared, revised, selected and arranged by AXI through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money and constitute valuable industrial and intellectual property and trade secrets of AXI and such others. You agree to protect the proprietary rights of AXI and all others having rights in and/or to the Services, Platform and Software during and after the Term. You acknowledge and agree that you has no ownership rights in or to the Services, Platform and Software, that no such rights are granted under and/or pursuant to the terms of this Agreement and that You are receiving only a limited license to access and use same as set forth above. You shall honor and comply with all written requests made by AXI to protect its contractual, statutory and common law rights in and to the Services, Platform and Software with the same degree of care used to protect its own proprietary rights which, in no event, shall be less than reasonable efforts. You agree to notify AXI in writing promptly upon becoming aware of any unauthorized access to, or use by, any party or of any claim that the Services, Platform and/or Software infringe upon any copyright, trademark, or other contractual, statutory or common law rights.
(a) You shall not share, recompile, decompile, disassemble, move, modify, copy, broadcast, reproduce, reverse engineer, or make or distribute in any other form of, or create any derivative work from, the Services, Platform and/or Software. You may use the Services, Platform and Software solely for its internal business purposes. The Services, Platform and Software are provided solely for operation on, and access via, Your own equipment and You shall bear all cost, expense and responsibility for obtaining and maintaining such equipment. Unauthorized access to, or use of, the Services, Platform and/or Software is strictly prohibited. You agree to notify AXI in writing promptly upon becoming aware of any unauthorized access to, or use of, the Services, Platform and/or Software.
(b) The analysis and presentation associated with, and/or generated by, the Services, Platform and/or Software shall not be recirculated, redistributed or published by You, except for internal business purposes, without the prior written consent of AXI.
(c) SR shall not use any of AXI’s trademarks, trade names or service marks in any manner or form which creates the impression that such names and/or marks belong to, or are identified with, You, and You acknowledge that it has no ownership rights in or to any of these names and/or marks.
(d) You acknowledge and agrees that AXI may delegate
certain of its responsibilities, obligations and duties under this Agreement to third party
subcontractors, which may discharge those responsibilities, obligations and duties on its
behalf.
4. Privacy
AXI is committed to protecting Your privacy and letting You know what AXI will do with Your personal information. AXI’s Privacy Statement sets forth (i) how AXI may collect, use, store and process personal information of or relating to You, and (ii) how you may request access to or deletion of Your personal information or exercise other privacy rights. You acknowledge that You have read and understand the Privacy Statement.
5. Subscriptions
Your subscriptions may include Software or Execution Services or a combination of both Software and Execution Services. Your subscriptions may also include additional Benefits.
5.1 Subscriber benefits
You will be entitled to the subscriber Benefits that AXI makes generally commercially available to users with the same subscription as You (including level, geography and other attributes). Subscriber Benefits may include, for example:
Technical support
Home use benefits
Access to forums, learning events, newsletters, webinars, galleries, and other educational resources
5.2 Subscribing to an offering
When You subscribe to an Offering, AXI will generally provide You with access to the Offering through Your account or, in certain cases, through an AXI-authorized third party or other means. Certain Offerings may require You to provide additional information to set up and access such Offerings, and You agree to provide that information.
5.3 Length of subscription
Your subscription to an Offering will be for a fixed term of limited length, the length of which should be indicated at the time of purchase and should be reflected on Your confirmation of purchase or other Offering Identification. If no length is indicated, please contact us at connect@axisystem.com and we will determine and confirm the length of Your subscription term.
5.4 Renewal of subscription
At the end of Your subscription period for an Offering, You may be able to renew Your subscription to the extent, and on the same terms, that AXI then generally makes commercially available to subscribers of such Offering in the same geography. Certain subscriptions may have the option of automatically renewing. If you would like to cancel any such automatic renewal, please contact us at connect@axisystem.com.
6. Software
If You order Software for delivery, or You order an Offering that includes Software (for example, if a Web Service Offering requires client Software), the Software will at AXI’s discretion be made available for download through Your account or other electronic means or delivered to You by AXI or an AXI-authorized third party. Additional fees may apply for delivery of physical media or other tangible embodiments of Software. No matter how Software is delivered, AXI will not be liable for any losses or other liability incurred by You or others due to late delivery or delivery to an incorrect address.
For any Offering consisting of Software that AXI makes available or delivers to You, and subject to compliance with these Terms and all payment obligations, AXI grants to You a nonexclusive, non-sublicensable, nontransferable license, for the period of Your subscription, to install and use the Software (and permit Your Authorized Users to install and use the Software) solely (i) in accordance with the Documentation for the Offering and any applicable Special Terms, if any, and (ii) within the scope of Your subscription, including the permitted number, License Type, Territory and other attributes specified for the type and level that You selected when subscribing for the Offering. If Your Offering Identification or other confirmation from AXI of Your subscription does not specify one or more of those attributes, the license will be (a) a Trial Version; (b) for You as an individual or, if You are a company or other legal entity, for one named employee; and (c) for use only within the country or jurisdiction where You acquired the Offering. You may not install, access or use (or allow installation of, access to or use of) any Software other than as authorized by such license and these Terms, and any other installation, access or use is unauthorized.
During the period of Your subscription, AXI may make available or deliver Updates or Upgrades to Software. All such Updates and Upgrades are subject to the same license and other terms as the Software to which the Updates or Upgrades apply. You are encouraged to use all Updates and Upgrades made available to You during the subscription period.
For the duration of a subscription, You may make one archival copy of the Software to which You subscribed solely for Your backup and archival purposes.
Any Software (including any Update or Upgrade) that AXI makes available or delivers to You is licensed for a limited subscription period, not sold, and You may not transfer or assign the license, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary or as otherwise expressly permitted by AXI in writing. Your subscription to a Web Service does not grant to You a license to the underlying Software used in providing the Web Service.
7. Access To And Use Of Offerings
7.1 General Access and Use Conditions
Depending on the Offering, You may be required to log into Your account to activate, access or use (or to continue accessing or using) the Offering. Only You, including Your Authorized Users, may access or use an Offering. Access to and use of all Offerings is contingent on (among other things) Your timely payment of all applicable amounts, including any taxes and other fees, with respect to the Offerings and compliance with these Terms.
Some Offerings may cause Your Electronic Devices to automatically connect to the internet (intermittently or on a regular basis)—for example, to validate Your subscription, provide You with access to services (including third-party services) or download and install Updates or Upgrades, all without further notice to You. You agree to such connection and to validation of Your subscription and to the automatic downloading and installation of Updates and Upgrades. For some Offerings, You may be able to adjust Your Update or Upgrade settings (this is not available for other Offerings, including those for which automatic Updates or Upgrades are required for operation or security of the Offering).
Offerings do not include access to the internet or any other network or to any communications services or any hardware, software, storage, security or other resources necessary for accessing or using the Offerings. You and Your other suppliers and service providers are responsible for acquiring all such items and for their reliability, security and performance. Not all Offerings, and not all functions of an Offering (including those described in the Special Terms or Documentation), are available in all locations or languages.
7.2 AXI APIs
When You subscribe to an Offering, AXI may provide You with access to applications programming interfaces, software development kits, tools, libraries, scripts, sample source code and similar developer material specifically for use of such Offering (collectively, “APIs”). For any such APIs that AXI makes available or delivers to You, and subject to compliance with these Terms and all payment obligations, AXI grants to You a nonexclusive, non sublicensable, nontransferable license, for the period of Your subscription, to use such APIs only (i) internally in conjunction with and for Your own authorized internal use of the Offering for which the APIs were made available, and (ii) in accordance with any Documentation for the APIs. Some APIs are subject to Special Terms, and Your license to the APIs is subject to those Special Terms. All APIs are confidential and proprietary to AXI and may not be distributed or disclosed to any third party or used for any purpose other than as permitted by the Documentation for the APIs and the other requirements of these Terms (and any such other use is unauthorized).
7.3 Use of Third-Party Material and Services
AXI may provide You with content, designs, models, data sets, project information, documents, libraries, audio, links, data, applications and other software, services or similar material of a third party (collectively, “Third-Party Material/Services”) in connection with Offerings. Any such Third-Party Material/Services may be governed by different terms found in such Third-Party Material/Services (for example, in the “About Box” or a .txt file), on a web page specified by AXI or in the Special Terms or Documentation for the Offering for which the Third-Party Materials/Services are provided (collectively, “Third-Party Terms”). If there are no Third-Party Terms, Your use must be (i) limited to the same terms as the Offering for which You received the Third-Party Material/Services, and (ii) solely in connection with Your use of such Offering. You take sole responsibility for determining, obtaining and complying with all Third-Party Terms. AXI will have no responsibility for, and makes no representations and warranties regarding, (a) any Third-Party Material/Services or Your use of such Third-Party Material/Services, and (b) the Third-Party Terms or Your compliance with such Third-Party Terms.
7.4 Use of Your Content
In order for You to access or use certain Offerings, or for AXI to provide You with certain services, You may wish to upload or otherwise share Your Content. AXI personnel will not use Your Content except (i) at Your request, or with Your consent—for example, when providing You support, or addressing a technical issue or other request; (ii) in connection with providing and improving Offerings (including maintaining, securing, updating or otherwise modifying Offerings); or (iii) in connection with legal-related obligations, enforcement, investigations or proceedings (for example, in response to a valid subpoena). In general, AXI does not screen or review content that is posted to any Offering, website or service or otherwise made available to AXI. AXI reserves the right, however, to screen and review Your Content, and may block or remove content for any reason, including because it is not in compliance with these Terms (for example, illegal, offensive or phishing-related postings or spam). When You provide or make accessible Your Content, You authorize AXI and its designees to use, reproduce, modify, distribute and make available Your Content in connection with providing You with Offerings and allowing AXI to fulfill its obligations and as otherwise permitted by these Terms.
You (a) are responsible for all of Your Content and for ensuring that Your Content and its use with any Offering comply with all applicable laws and regulations and these Terms, and (b) warrant that Your Content will not infringe or misappropriate any intellectual property or proprietary rights of any person or violate any applicable laws or regulations. AXI recommends that You secure and protect Your Content by using appropriate encryption and security technology. You acknowledge that online services may suffer occasional disruptions or outages, and You may not be able to retrieve Your Content as a result. AXI recommends that You regularly backup Your Content to Your own storage. You are at all times responsible for storing and maintaining any such backup copies of Your Content.
7.5 Collaboration and Sharing of Your Content
Some Offerings permit You to collaborate with others, including sharing Your Content or publishing Your Content—for example, to a forum or to other services. If You choose to share or publish Your Content (whether by collaboration on or sharing files with a project, emailing, sharing a link, sharing files with other applications or services, posting in a forum or gallery or otherwise), then others (including, in some cases, the general public) may be able to use, sell, reproduce, modify, distribute, make available, display, transmit and communicate Your Content. Forums and galleries may be public, and submissions are generally public. Once You share or publish Your Content, suspending or terminating access will not delete or inhibit access to any of Your Content that was earlier copied, transferred or otherwise shared or published. If You do not want others to have any such access or any of those rights, do not use the sharing, publishing or other collaboration features of the Offerings and set Your permissions accordingly.
An Offering may feature links to third parties that offer services, software or other materials that complement such Offering. Such links are provided as a convenience to You. AXI does not monitor or control what such third parties will do with Your Content. You are responsible for ensuring the appropriate level of access to Your Content by any third party. If You authorize any of Your information or Your Content to be shared with any third party, AXI may make available Your information or Your Content to such third party; AXI will, however, have no responsibility or liability for the actions of such third party, and all governing terms and conditions, including those regarding privacy, are between You and such third party.
8. Feedback
You have no obligation to provide AXI with ideas for improvement, suggestions or other feedback (collectively, “Feedback”), whether in connection with a Trial Version or otherwise, unless otherwise specified in the Special Terms for an Offering. If, however, You provide any Feedback, You hereby grant to AXI a non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise exploit the Feedback and any Offerings using the Feedback.
9. Limitations On Use
9.1 Offerings are tools
The Offerings are tools and are intended only to assist You with Your design, analysis, simulation, estimation, testing and other activities and are not a substitute for Your professional judgment or Your own independent design, analysis, simulation, estimation, testing or other activities, including those with respect to product stress, safety and utility. Due to the large variety of potential applications for the Offerings, they have not been designed or tested for any specific uses, and it is Your responsibility to determine whether the use of an Offering is appropriate for the purposes You pursue. AXI will not be responsible or liable in any manner whatsoever for the results obtained through use of the Offerings, including any Output. You are responsible for Your (including Your Authorized Users’) use of the Offerings and any results produced by the Offerings, including any Output. Your responsibilities include, without limitation, the determination of appropriate uses for the Offerings and the selection of the Offerings and other computer programs and materials to help achieve Your intended results. You are also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, compliance with applicable legal requirements, and other characteristics of any Output, including, without limitation, all items designed with the assistance of the Offerings. You further acknowledge that the Offerings and Output may not achieve the results You desire within Your design, analysis, simulation, estimation, testing and other constraints.
9.2 Offerings are not designed for storage of sensitive personal information
The data storage functionality associated with Offerings is NOT suitable for the storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information or health insurance information; data about personal characteristics or other personal information, such as race or ethnic origin, religion or philosophical beliefs, political affiliation or opinions, genetic or biometric data, sexual orientation or trade union membership; or other information that may expose, or pose a risk of harm to, an individual if improperly disclosed or used (collectively, “Sensitive Personal Information”). Except as expressly required by AXI (for example, a credit card number used to purchase a subscription), You will not upload or otherwise make available to AXI any Sensitive Personal Information, including any files containing Sensitive Personal Information, in connection with Your use of any Offering.
9.3 Acceptable use of offerings
You will access and use (and permit access to and use of) Offerings only in conformance with (and will comply with) all applicable laws. Except as expressly authorized by these Terms, including any Additional Agreement or Special Terms, or as otherwise expressly permitted in writing by AXI, You will not:
Reproduce, modify, adapt, translate, port or create derivative works of all or any portion of any Offering, except as expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary;
Sublicense, distribute, transmit, sell, lease, rent, loan or otherwise make available all or any portion of any Offering (including any functionality of any Offering) to a third party or provide any functionality of any Offering to a third party (whether on a service bureau basis or otherwise); and
Access or use any Offering on or through the internet (other than as made available by AXI through the internet), any wide-area network (WAN) or any other non-local network; on or through any virtual private network (VPN); or on or through any application virtualization technology, remoting virtualization technology, web-hosting, timesharing, software as a service, platform as a service, infrastructure as a service, cloud or other web-based, hosted or similar service.
In addition, You will not:
Remove any copyright, trademark, confidentiality or other proprietary rights notice from any Offering, Documentation or related material;
Remove, disable or otherwise limit the effectiveness of any technical protection used by AXI to (i) manage, monitor, control or analyze the installation of, access to, or use of any Offering or (ii) protect AXI’s intellectual property rights;
Post, transmit or otherwise make available using the Offerings any information or material that is or may be:
false, libelous, defamatory, fraudulent or otherwise unlawful or tortious;
threatening, harassing, degrading, hateful or intimidating, or that otherwise fail to respect the rights and dignity of others;
obscene, indecent, pornographic or otherwise objectionable;
protected by copyright, trademark, design rights, trade secret rights, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner;
a national or state secret, classified information or any other information or material (including any photograph, drawing, plan or model) that is subject to official confidentiality treatment;
secret codes, countersigns, crypto-currency, passwords or other similar information;
advertising, spam, an offer to sell or buy any goods or services, a “chain letter” or any other form of solicitation; or
any malware (such as a virus, worm, Trojan horse, Easter egg, time bomb or spyware) or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, limit the use of, or monitor the use of, any hardware, software or equipment;
Use the Offerings in any way that is fraudulent or otherwise unlawful or tortious, or has any fraudulent or other unlawful or tortious purpose or effect;
Interfere with or disrupt the operation of any Offering or the servers or networks used to make any Offering available, including by hacking or defacing any portion of an Offering;
Attempt to probe, scan or test the vulnerability of any Offering or to breach or circumvent any security or authentication measures used by any Offering;
Use any Offerings as storage for “remote loading” or as a “door” or “signpost” to other web pages or internet resources, whether inside or beyond the sites through which the Offerings are provided;
Impersonate any other individual or entity for the purpose of using that individual’s AXI ID or otherwise, or falsely state or otherwise misrepresent Your affiliation with any person or entity;
Use the Offerings in connection with any inherently dangerous application, including any application that could result in death, personal injury, catastrophic damage or mass destruction;
Collect content or information, from or with an Offering, using automated means (such as any robot, spider, site search/retrieval application or other device to retrieve, index, “scrape,” or “data mine”);
Use any Offering or the output of any Offering in connection with the training of a neural network or machine learning, deep learning or artificial intelligence system or software;
Unbundle the component parts of any Offering for use separate from each other or on different electronic devices (except as may be expressly permitted in writing by AXI); or
Use or access Software made available as part of a Web Service separately from the applicable Web Service (except as may be expressly permitted in writing by AXI).
10. Confidentiality
You or AXI (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”) in connection with these Terms. The Receiving Party will use the same degree of care as to the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will (i) use the Confidential Information of the Disclosing Party only in connection with Offerings, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to the Confidential Information of the Disclosing Party to those of its employees, consultants, contractors, service providers, professional advisors and other individuals who need such access for purposes related to Offerings and who are subject to confidentiality obligations with the Receiving Party no less stringent than those in these Terms. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. The Receiving Party will give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and take reasonable steps to limit such disclosure. AXI may also disclose Your Confidential Information to comply with any governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving AXI, or at Your request. If disclosure is made at Your request, You may be responsible for the costs of compiling and providing access to Your Confidential Information.
11. AXI Proprietary Rights
You acknowledge and agree that AXI and its licensors and suppliers will have all ownership of and all rights with respect to (i) the Offerings, Documentation, APIs, Metrics and other information or material provided or made available by AXI to You and (ii) any copies of the foregoing, or any materials or other information based on, derived from or otherwise using any of the foregoing (including all rights under trade secrets, copyrights, trademarks, patents and all other intellectual property or proprietary rights relating to any of the foregoing). The structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of the Offerings and the APIs constitute proprietary and confidential information of AXI, and You will not disclose such information to third parties, or use such information for any purpose other than as required for ordinary-course access to and use of the Offerings as set forth in these Terms, without AXI’s prior written consent. Also, You agree not to access or attempt to access the Offerings by any means other than the interface AXI provides or authorizes. In addition, You agree not to engage in any decompiling, disassembling or other reverse engineering or otherwise attempting to discover, learn or study the structure or organization, underlying algorithms or other internals, the protocols, data structures or other externals, or the source code of the Offerings or APIs, except as expressly permitted under applicable law notwithstanding a contractual prohibition to the contrary. AXI may make available or provide access to other confidential and proprietary information (either marked as such or understood to be such under the circumstances). If You receive such information, You will not disclose it to any third party, or use such information for any purpose other than as required for access to and use of the Offerings as set forth in these Terms, without AXI’s prior written consent.
You have only the rights expressly granted to You under these Terms (including any Additional Agreement or Special Terms). All rights not expressly granted are reserved by AXI and its licensors and suppliers; AXI and its licensors and suppliers expressly disclaim (and You agree not to assert) any other rights.
You agree not to take any action, or to authorize or encourage any third party to take any action (or cooperate with any third party in taking any action), inconsistent with the foregoing.
12. Warranty, Disclaimers, Limitations On Liability
12.1 Limited warranty
AXI warrants that, for any paid subscription, as of the date on which the subscribed-for Offering is made available to You and for 90 days thereafter or, if the subscription period is shorter, such shorter period (“Warranty Period”), the Offering will provide the general features and functions described in the end-user Documentation for the Offering. AXI’s entire obligation and liability, and Your sole and exclusive remedy, for AXI’s breach of this warranty will be for AXI, at its option, (i) to attempt reasonably to remedy the breach or (ii) to refund amounts received for the affected subscription and terminate such subscription. You must bring any warranty claim for any Offering within its applicable Warranty Period.
12.2 Disclaimers
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THE “Limited Warranty” SECTION (Section 18.1) ABOVE, AND ANY EXPRESS WARRANTIES SET FORTH AS SUCH IN ANY ADDITIONAL AGREEMENT OR SPECIAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (i) THE OFFERINGS ARE PROVIDED “AS IS,” AND (ii) AXI AND ITS LICENSORS AND SUPPLIERS MAKE, AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS, CONDITIONS OR COMMITMENTS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE OFFERINGS OR ANY OUTPUT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OR OTHER WARRANTIES OR CONDITIONS IMPLIED BY STATUTE, OR ANY WARRANTIES OR CONDITIONS BASED ON A COURSE OF DEALING, USAGE OF TRADE OR INDUSTRY STANDARDS. Any statements about the Offerings (including any statements about their functionality or performance) or Output, or other communications with You, that are not contained in these Terms or any Additional Agreement or Special Terms are for information purposes only and do not constitute a warranty, representation, condition or other commitment. Without limitation as to the generality of the foregoing, AXI does not warrant or otherwise commit that (a) the Offerings or Output, or the access thereto or use thereof, will be available, uninterrupted, error-free, secure, accurate, reliable or complete, (b) the Offerings will meet any particular performance or availability criteria, (c) Your Content will not be lost or damaged or (d) errors will be corrected or any particular support requests will be resolved to meet Your needs. Any reference to “unlimited” access, use, storage or otherwise with respect to an Offering is subject to the technical limitations of the Offering.
12.3 Limitations on liability
Neither AXI nor any of its licensors or suppliers will have any liability (directly or indirectly) for any incidental, special, indirect, consequential or punitive damages; loss of profits or revenue; business interruption or loss of use; cost of procurement of substitute goods or services or other cover; failure of or defects in the Output; loss, corruption or deletion of (or failure to delete) data or Your Content; or damages resulting from Force Majeure (in each case, regardless of the legal theory for seeking such damages or other liability). In addition, the aggregate liability of AXI and its licensors and suppliers with respect to any Offering or Output thereof will in no event exceed the amount paid or payable by You for the Offering in the one-year period before the events or circumstances giving rise to the liability first occurred.
The limitations on liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise, even if AXI has been advised of the possibility of the liability and regardless of whether the limited remedies in these Terms fail of their essential purpose.
You acknowledge that the amounts payable for the Offerings are based in part on and reflective of the disclaimers of warranties and limitations on liability in these Terms and that such disclaimers and limitations are an essential element of the bargain between You and AXI.
Nothing in these Terms purports to restrict or exclude AXI’s liability for (i) death or personal injury caused by AXI’s willful intent or gross negligence or (ii) Your damages or losses caused by AXI’s fraud.
12.4 Relationship to applicable law
AXI does not seek to limit Your warranties, Your other rights and remedies, or the liability of AXI for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in these Terms restricts the effect of warranties, the liability of AXI for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary. These Terms give You specific legal rights, and You may also have other legal rights, which vary from jurisdiction to jurisdiction. For example, some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to You.
13. Indemnity
You will indemnify and hold harmless (and, at AXI’s request, defend) AXI against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by AXI by reason of any claim, suit or proceeding (“Claim”) arising out of or relating to (i) Your Content; (ii) Your (including Your Authorized Users’) use of Offerings, including any Output or other results produced by such use; and (iii) Your (including Your Authorized Users’) breach of these Terms (including any Additional Agreement, any Special Terms or any other applicable terms).
14. Term, Termination, Suspension
These Terms become effective on the first date accepted in accordance with the "Acceptance" section (Section 1) and continue in effect indefinitely unless terminated in accordance with this “Term, Termination, Suspension” section (Section 14).
14.1 Your right to terminate
You may terminate Your subscriptions and these Terms if AXI is in material breach of these Terms (including any Additional Agreement, any Special Terms or any other applicable terms) and fails to cure such breach within 30 days after written notice of the breach.
14.2 AXI's right to terminate
AXI may terminate any or all of Your subscriptions or other Offerings, these Terms and/or Your account, if (i) You have no current paid subscriptions; (ii) You have failed to timely pay any amounts (including fees and taxes) owing with respect to any Offerings or otherwise owing to AXI; (iii) You (including any of Your Authorized Users) are in material breach of these Terms (including any Additional Agreement, any Special Terms, or any other applicable terms) and fail to cure such breach within 30 days after written notice of the breach; or (iv) You become subject to bankruptcy or insolvency proceedings, become insolvent, make an arrangement with or affecting Your creditors (including an assignment for the benefit of creditor) or commence a process of liquidation. These Terms will automatically terminate without further notice or action by AXI if You go into liquidation.
14.3 Effect of termination of subscription
Upon expiration or termination of a subscription or other Offering for any reason, Your rights with respect to that Offering, including any related Software license or subscription Benefits, will end. At that time, You will stop all access to and use of the Offering (including all access and use by Your Authorized Users) and uninstall any and all copies of materials related to such Offering (including any related Software, Documentation, APIs or other material from AXI). In addition, at AXI’s request, You will destroy any such copies or return them to AXI or the reseller from which You acquired the Offering. You will retain proof that You returned or destroyed all such copies. In connection with the expiration or termination of a subscription, (i) as a convenience to You for some Execution Services, AXI will, upon Your written request, provide You with a brief period (for example, 30 days) in which You may retrieve Your Content after expiration or termination of the Execution Services, if You are in compliance with these Terms and pay the applicable fees, if any (for example, AXI’s then-current professional services fees for any assistance AXI provides), and (ii) otherwise, AXI may delete, without notice, any or all of Your Content, including backup and other copies thereof. For more information on post-expiration/termination content retrieval, please check with the individual Execution Services Offering. This convenience for some Execution Services, if available, does not relieve You of responsibility for retaining and securing complete copies of Your Content at all times.
14.4 Effect of termination of terms
Upon any termination of these Terms for any reason, (i) Your account and Your subscriptions and other Offerings, including those of Your Authorized Users, will immediately terminate, (ii) You will cease all access to and use of any Offerings (including all access and use by Your Authorized Users), and (iii) the effects described above with respect to expiration or termination of a subscription or other Offering will apply. Your payment obligations, ownership of Your work (as described in the “You Own Your Work” section (Section 5)), obligations with respect to APIs and Your Development (including those in the “AXI APIs” section (Section 7.2)) and indemnity obligations (including those in the “Indemnity” section (Section 13)); the license as to Feedback (in the “Feedback” section (Section 8)); AXI’s rights and Your obligations with respect to proprietary rights (including the rights and obligations in the “AXI Proprietary Rights” section (Section 11)); the disclaimers and limitations on liability (in the “Limited Warranty, Disclaimers, Limitation on Liability” section (Section 12)); the governing law and dispute resolution provisions (in the “Contracting AXI Entity, Governing Law, and Dispute Resolution” section (Section 15.4)); and Your responsibility for anyone who accesses or uses (or obtains) Offerings through You or Your account (including Your Authorized Users) (including the responsibility described in the “Account” section (Section 2)) will survive termination for any reason.
14.5 AXI's right to suspend
If AXI believes in good faith that Your Content or Your conduct or failure to act (including the conduct or failure of Your Authorized Users) may (i) pose a security risk or otherwise adversely impact Offerings, systems or other users; (ii) constitute or enable tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections (including any mechanisms for managing, monitoring, controlling or analyzing the installation of, access or, or use of any Offerings or protections of AXI’s intellectual property rights); (iii) subject AXI, any reseller or any other user to liability; or (iv) not comply with these Terms (including any Additional Agreement, any Special Terms or any other applicable terms), including failure to pay any amounts owing with respect to any Offerings, AXI has the right, but not the obligation, to immediately disable or suspend Your access to and use of any Offerings and access to and use of Your Content. Unless AXI reasonably determines that immediate action is prudent, AXI will seek to notify You of the planned disabling or suspension before it takes effect.
15. Miscellaneous
15.1 Changes to the offerings
AXI reserves the right from time to time to (and You acknowledge and agree that AXI may) (i) modify or release subsequent versions of an Offering, or may discontinue an Offering and/or provide instead a substitute Offering; (ii) modify or discontinue the Benefits, features and functionality, or supporting services or availability with respect to an Offering, whether generally or in any geographic area or language; or (iii) add or modify license keys, authorizations or other means of controlling access to or use of the Offerings. AXI will endeavor to inform You of major changes to the Offerings.
15.2 Changes to terms
To the maximum extent permitted by applicable law, AXI reserves the right from time to time to (and You acknowledge that AXI may) modify these Terms. AXI will endeavor to notify You of any material modification to the Terms that may have a materially adverse effect on You (“Modification Notice”), and You will then have an opportunity to review such modification. Except as otherwise expressly set forth in these Terms (including any Additional Agreement or Special Terms), if any such modification has a material adverse effect on You and You do not agree to the modification, You may reject the modification by notifying AXI of the rejection within 30 days of the Modification Notice. If You reject a modification under these circumstances, (i) Your access to and use of any Offerings affected by the modification will continue to be governed by the terms in effect immediately before the modification (except to the extent the modification was made for security, privacy or legal compliance reasons) until (a) the end of the then-current period for the subscription or other Offering, if applicable, or (b) 180 days after the Modification Notice, whichever is earlier; and (ii) Your rights to such Offerings, including any related subscription Benefits, will then terminate. In the event of such a termination by You, AXI (or an applicable reseller) will refund the prorated portion of any prepaid fees applicable to the remaining term of Your subscription for the affected Offerings after the effective date of termination. Such date will be the end of the term of such Offerings. If the subscription is renewed or extended, it will be under the then-current Terms. Notices by You or AXI will be provided as set forth below, except that You may also provide Your notice of rejection (within the 30-day period described above) to the email address, or in any other manner, specified in the Modification Notice.
Notwithstanding the forgoing, modifications to the Privacy Statement, Special Terms, Subscription Types, Subscription Benefits or other policies will be handled as described therein.
You acknowledge that Your commitments with respect to the Offerings and Subscription Benefits are not contingent on delivery of future features or functionality (or oral or written statements about future features or functionality).
15.3 Electronic Signature
This Agreement, including the Schedule and Exhibits, and any modifications, waivers or notifications relating thereto may be executed and delivered by electronic mail, or other electronic means, including via a website designated by AXI by completing the procedures specified on that website. Any such electronic mail transmission, or communication via such electronic means, including any communication implementing the procedures in such website, shall constitute the final agreement of the parties and conclusive proof of such agreement in writing. Once an electronic signature is submitted, the electronic order constitutes an electronic letter of agency. AXI’s reliance upon Your electronic signature is specifically sanctioned and was written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures. If Your signature or acknowledgment is required or requested with respect to any document in connection with this Agreement and any employee or representative authorized by Your "clicks" in the appropriate space on a website designated by AXI or takes such other action as may be indicated by AXI, You shall be deemed to have signed or acknowledged the document to the same extent and with the same effect as if You had signed the document manually.
Further, You hereby waive any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires:
(a) an original signature; and/or (b) delivery or retention of non-electronic records. You acknowledges and agrees that it has the ability to print information delivered
15.4 AXI Party, Governing Law, and Dispute Resolution
This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of the State of New York regardless of the laws that might otherwise govern under applicable choice-of-law principles. The parties hereto agree to submit to the jurisdiction of each of the federal and state courts located in New York County, New York in connection with any matters arising out of this Agreement and not to assert a defense of forum non-conveniens, sovereign immunity or analogous doctrines in connection with any action.
15.6 Force majeure
Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
15.9 Assignment
You may not assign or otherwise transfer these Terms or Your rights or obligations under these Terms (whether by operation of law or otherwise) without AXI’s prior written consent, and AXI may terminate these Terms (including Your rights under these Terms) if You are acquired by, or come to be controlled by, any other person or entity (whether by acquisition of shares, merger, or other transaction) without such written consent of AXI. AXI may assign or otherwise transfer these Terms (without Your consent or notice to You) as part of a reorganization, merger, sale of assets or other transaction that involves all or a portion of the Offerings or related business.
15.10 No waivers
Failure to enforce or exercise any provision of these Terms is not a waiver of such provision, unless such waiver is specified in writing and signed by the party against which the waiver is asserted.
15.11 Severability
If and to the extent any provision of these Terms is held unenforceable under applicable law, (i) such provision will be deemed modified to the extent reasonably necessary to conform to applicable law but to give maximum effect to the intent of the parties set forth in these Terms, and (ii) such provision will be ineffective only as to the jurisdiction in which it is held unenforceable without affecting enforceability in any other jurisdiction.
15.12 Notices
Any notices by You to AXI will be sent by postal mail or delivery service to AXI System, Inc., 165 Broadway, Fl 23, New York, NY 10006, USA. Such notices will be effective when received by AXI.
Except as otherwise expressly stated in these Terms (including any Additional Agreement or Special Terms), any notices by AXI to You will be provided (i) by email to the registered email address associated with Your account, (ii) by posting to Your account, (iii) by posting within an Offering (for example, through an in-Offering notification function or sign-in notification), (iv) by postal mail or delivery service to the address associated with Your account, or (v) in any other manner deemed reasonable by AXI that involves specific notification to You. Notices from AXI to You will, (a) in the case of notices by email, be effective one day after being sent and (b) in the case of other notices, five days after being posted or sent. You hereby agree to service of process being effected on You by registered mail sent to the address set forth on Your Customer Information Form (or, if no Customer Information Form has been provided, Your last address known by AXI) if so permitted by applicable law.
15.13 Entire agreement
These Terms, including the Privacy Statement, any Additional Agreement and any Special Terms (which are incorporated by reference in these Terms), constitute the entire agreement between You and AXI (and merge and supersede any prior or contemporaneous agreements, discussions, communications, representations, warranties, advertising or understandings) with respect to the subject matter hereof.
16. Definitions
Authorized Users means (i) You (if You are an individual) and (ii) identified individuals (such as Your individual employees, consultants and contractors and other individuals accessing and using an Offering for Your benefit) for whom You have acquired a subscription to an Offering. If an Offering allows You to designate Authorized Users for such Offering, You will be responsible for providing notice to, and obtaining agreement from, any such Authorized Users regarding the application of these Terms to their access to and use of such Offering prior to their access and use.
AXI means AXI, Inc., a New York (United States) corporation, together with its subsidiaries and other affiliates.
AXI Party means the particular AXI entity identified in the section entitled “AXI Party, Governing Law, and Dispute Resolution” (Section 21.4).
Benefits means any benefits made available to You or Your Authorized Users by AXI. Benefits are typically based on the level or type of Offering for which You subscribe. Benefits may include access to Updates and Upgrades, rights to previous versions, additional Software or Execution Services, Trial Versions, APIs, global travel rights, technical support, training, webinars, forums, events, galleries, newsletters and usage data. Benefits may also include account benefits such as single sign-on and management of Your profile, security settings, linked accounts and preferences.
Confidential Information means information not generally known to the public that is (i) made available or disclosed by a Disclosing Party to a Receiving Party in writing and (ii) designated by the Disclosing Party in the writing as Confidential. AXI Confidential Information also includes the non-public aspects of (i) any Offering and any related product plans, technology and other technical information and (ii) business negotiations. Nonetheless, Confidential Information does not include (a) any information that (1) becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party; (3) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party; or (4) was independently developed by the Receiving Party; (b) any of Your Content that You send to, or allow to be accessed by, a third party through an Offering; or (c) any Feedback.
Customer Information Form means a form completed by or on behalf of You and submitted to AXI (or to a reseller), directly or indirectly, in connection with Your account, a subscription or other Offering.
Documentation means any end-user documentation (including online, printed or other documentation) and any technical or legal requirements for an Offering.
Electronic Devices mean (i) computers (whether desktop, laptop or tablet); (ii) virtual machines not accessed through a network connection; and (iii) mobile devices.
License Type means the license type specified by AXI for a subscription (for example, single-user or multi-user). License Types are set forth on Subscription Types.
Metrics means data and other information regarding access to and use of any Offerings (including Your access and use). Metrics includes information regarding usage of features, functions, storage and indexes and information regarding usage, volume, type, storage and processing of Your Content (but not Your Content itself). If Metrics includes any personal information, treatment of such personal information will be pursuant to the Privacy Statement.
Offerings means Software, Execution Services and other Benefits provided by AXI and any subscriptions for such items. Offerings includes free and other Trial Versions of Software, Execution Services and other Benefits.
Offering Identification means one or more designations by AXI that set forth (as applicable) the name of an Offering, the License Type or Execution Services Type, and the permitted number, Territory and length of Your subscription. The Offering Identification may be (i) provided in a written confirmation or other notice issued to You by AXI, posted to Your account, transmitted via email, physically delivered or otherwise made available to You; (ii) located in the Software or on or with any AXI packaging if the Software is delivered to You; or (iii) obtained from AXI on request. Offering Identification does not include any designation, confirmation, packaging or other document provided by a reseller or other third party.
Output means all results, work product, designs, prototypes or other items created or generated by or through any use of any Offering, including any products, parts or services based on or using such results, work product, designs, prototypes or other items.
Software means any software or similar materials, including any modules, components, features and functions, made available by AXI, whether or not provided as part of a subscription and whether or not provided for a fee. Software includes Updates and Upgrades.
Terms (including “these Terms”) means these General Terms and the other terms referenced in these General Terms, including the Special Terms, AXI Privacy Statement and Additional Agreement (if any), together with any other applicable terms.
Territory means the country or jurisdiction where You acquired Your subscription. AXI may indicate the applicable Territory in an Offering Identification. For additional information regarding the definition of Territory see the “Country/Jurisdiction-Specific Terms” section (Section 23). If You acquire Your subscription in the country or jurisdiction in which You are incorporated, chartered or otherwise organized, if You are a legal entity (or, if You are an individual, in the same country or jurisdiction as Your residence).
Updates means security fixes, hot fixes, patches and other updates (including new features, new functions and other modifications released between Upgrades), if and when made available to You by AXI and determined by AXI to constitute an update.
Upgrades means new versions of Offerings, or add-ons to or additional products associated with Offerings, if and when made available to You by AXI and determined by AXI to constitute an upgrade.
Web Service means a web- or cloud-based service made available by AXI, whether or not provided as part of a subscription and whether or not provided for a fee.
Execution Services Type means the Execution Services type specified by AXI for a subscription (for example, number of cloud credits) or direct service request initiated or confirmed by You.
Your Content means (i) any files, designs, models, data sets, images, documents or similar material submitted or uploaded to any Offering by You or Your Authorized Users and (ii) Your specific output generated from the use of any Offering based on Your own raw data or information.