Axia Terms of Service
Effective Date: June 2019
YOUR USE OF THE PROPRIETARY AXIA INTERNATIONAL SERVICE OFFERED AT AXIAINTERNATIONAL.COM (INCLUDING RELATED SITE ADDRESSES ENDING IN .NET, .ORG OR SIMILAR; COLLECITVELY THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH AXIA INTERNATIONAL (“AXIA,” “WE,” “US,” OR “OUR”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
If there is a conflict in terms between this Agreement and your Administrative Service Agreement with Axia, please refer to the terms of your Administrative Service Agreement.
By signing up for the Service on behalf of a Client, you confirm that (a) you are duly authorized to represent the entity, (b) you accept the terms of this Agreement on behalf of such entity, and (c) any references to “you” in this Agreement refer to such entity and all of its employees, contractors and agents. You are responsible for all activity on the Service that occurs under your account.
1.1 The Axia Service may include additional services that you receive specifically from or through Axia (“Additional Services”). Some of these Additional Services have specific additional terms that apply to your use of those Additional Services (the “Additional Terms”), and those Additional Terms become part of this Agreement. In the event an Additional Term directly conflicts with any term in this Agreement, the Additional Term will apply to your use of the Additional Services instead of the term contained in this Agreement.
Term; Termination; Cancellation, Substitution and Refund Requests
2.1 This Agreement will remain in effect as long as you have an active Administrative Service Agreement with Axia or have active Service from Axia, whichever is longer (the “Term”).
2.2 Your Service will commence on the effective date of your Administrative Service Agreement or on your date of first use, whichever is earlier. If you add an Additional Service at a later date, the Additional Service will commence on the start date specified at the time you added the new service and continue until cancelled by you.
2.3 Axia’s mission is to serve others. If you are not completely satisfied with your Service, we want to hear from you and make it right. We recognize the need to be flexible and understanding in these instances. To place a cancellation, substitution or refund request, please take a moment to contact us by emailing firstname.lastname@example.org or calling 1-877-678-7323. Please have details about your account and your request available in order to speed up the resolution process. Your request will be reviewed within three (3) business days, and if we need additional information, we will contact you. While we aim to resolve all requests within five (5) business days, some matters require more time. We thank you in advance for your patience.
2.4 Axia may suspend your access to the Service and terminate this Agreement and your use of the Service at any time in the event you materially breach this Agreement (including failure to pay) and you do not cure such breach within 30 days of Axia providing you with written notice of such breach (including notice by email), or earlier if Additional Terms provides otherwise. Notwithstanding the foregoing, Axia may immediately suspend or terminate your access to the Service without liability if you are in violation of Sections 4.1, 4.5 or 13 of this Agreement, as determined by Axia in its sole discretion. Axia may also downgrade, suspend or terminate your access to the Service without liability, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 3.1 below, or (b) you do not log in to or otherwise use the Service for a period of 180 days or more if you have a paid account and for a period of 60 days or more if you have a free account. For instances other than non-payment or violation of Section 4.1, in the event you cancel your Service or this Agreement is terminated by Axia or you, Axia will refund to you any prepaid fees covering any period of the Term remaining after the effective date of termination for all unused Service, except that no refunds will be granted for the then-current month. Notice via email from Axia will be sent to you at the email address you have provided to us. Axia reserves the right to manage its client profile, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing to not provide services to certain groups, parties, industries, or companies in certain countries, in its sole discretion.
2.5 In the event your Service is terminated, other than in instances where it is terminated by Axia for your nonpayment or violation of Sections 4.1 or 13, you will continue to have the ability to download the information provided, inputted or uploaded to your databases in the Axia Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination of your subscription. After such 30-day period or if your Service is terminated due to your nonpayment or violation of Section 4.1, Axia shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, or required pursuant to Additional Terms, delete all of your Data contained in the Axia Service.
Modification of Service or this Agreement
3.1 The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. Axia reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
3.2 Axia may modify or update this Agreement at any time. In the event Axia determines it is necessary to make a material modification to this Agreement, you will be notified of such change and asked to affirmatively agree to such modified version of the Agreement. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes. You may review the most current version of this Agreement at: https://www.axiainternational.com/terms-of-service/.
3.3 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your Service and discontinue any use of the Service.
Usage Rights; Restrictions; Support
4.1 During the Term, Axia grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Axia to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
- Use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Axia;
- Use the Service for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used (as determined by Axia in its sole discretion);
- Attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
- Duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Axia;
- Use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the documentation; or
- Rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
4.2 Axia shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which Axia shall schedule to the extent practicable after business hours Central Daylight Time on Thursdays), (b) any unavailability caused by circumstances beyond Axia’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, or (c) as necessary to update the Service to ensure its security and integrity and (iii) provide the Service only in accordance with Applicable Law. Axia’s hours for basic support are 8:00 a.m. to 5:00 p.m., Central Daylight Time, on weekdays, in the English language via telephone, email and chat. Also, while Axia would like to offer the Service in a manner that accommodates all customers in their native language, this is not practical considering the constant updating we do with our Service, the vast number of languages spoken and read in the world, and the localizations that would be required. Axia therefore provides much of its Service in English, with limited adaptations to certain major languages, which adaptations are made in its sole discretion.
4.3 Axia shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Service, and the security of your Data. Axia shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your express request in connection with customer support matters. In the event Axia is compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
4.4 You are solely responsible for your Data, and all uses of your Data that occur through your account.
4.5 IF YOU CHOOSE TO USE AND PAY FOR A TEST ACCOUNT (A LIMITED TIME AND USAGE AXIA ACCOUNT USED FOR TESTING THE SERVICE), YOU AGREE THAT YOUR TEST ACCOUNT WILL NOT BE USED WITH LIVE OR REAL DATA AND ACCEPT THAT AXIA MAKES NO WARRANTIES OR GUARANTEES REGARDING THAT ACCOUNT.
4.6 If you integrate with Axia using our API, you must use efficient programming, which will not cause an excessive number of requests to be made in too short a period of time, as-determined solely by Axia. If this occurs, Axia reserves the right to throttle your API connections or suspend or terminate your Axia account.
5.1 You may request a change to your Service term at any time by contacting Axia using one of the methods set forth in the Contact Information section below.
5.2 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which Axia may be required to collect from you and remit to appropriate taxing authorities, you are solely responsible for payment of all such taxes or duties.
5.3 Axia may at any time, upon notice of at least 30 days, or a longer period if required by Applicable Law, change the price of your Service or any part thereof, or institute new charges or fees. If you do not agree to any such price changes, then you must cancel your Service and stop using the Service prior to the commencement of the renewal period for which the price change applies.
Intellectual Property Rights
6.1 As between the parties, Axia owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights therein, and (b) all transactional and performance data related to your use of the Service. Axia may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
6.2 You retain all right, title and ownership interest in and to your Data. Axia has no right, title or interest in any personally identifiable information contained in or related to your Data.
6.3 You have no obligation to give Axia any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to Axia, Axia may use and include any such Feedback to improve the Service or for any other purpose. Accordingly, if you provide Feedback, you agree that Axia shall own all such Feedback and Axia and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign all rights in such Feedback to Axia.
6.4 From time to time during the Term, Axia may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”) for you pursuant to agreement between you and Axia. Axia shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use only during the Term. Axia may reuse any Deliverables, provided that such use does not reveal your identity, your confidential information or any personally identifiable information that belongs to you or your employees.
7.1 Unless otherwise agreed to by you and Axia, during the Term, Axia may disclose your name as a customer of Axia and/or subscriber to the Service, and you hereby grant Axia the right to display your name, company, and logo in Axia’s marketing materials and on Axia’s public website, in each case in accordance with any branding guidelines you may provide to Axia.
8.1 Certain features of the Site may enable users to submit, upload, post, share, or display (hereinafter, “post”) comments or content, as well as to interact with others through user comment areas, message boards, direct messages, Axia’s blog, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to Axia about the Service but excludes all Data.
8.2 You hereby grant to Axia an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to Axia that you own or control all rights in and to such User Content and have the right to grant the rights above to Axia.
Warranties and Limitation of Liability
9.1 Axia represents, warrants, and covenants as follows: (a) the Service will perform substantially in accordance with the specifications generally provided by Axia in connection with the Service (“Documentation”); (b) the provision of the Service will comply with all privacy and data protection laws applicable to its business; (c) it will not sell Personal Information provided by you, and it will retain, disclose, or use Personal Information provided by you only for purposes of providing the Service; and (d) any professional services performed for you by Axia will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, AXIA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. AXIA DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
9.3 EXCEPT FOR (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, WHICH FOR AXIA MEANS ITS COMMITMENT NOT TO DISCLOSE YOUR DATA AS DESCRIBED HEREIN, (II) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY AXIA FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
10.1 External Breach: In the event of a security breach, as defined by Applicable Law, by anyone other than your employee, contractor or agent, upon discovery of such breach, Axia will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the remedial actions Axia will undertake, and the timeline within which Axia expects to remedy the breach. You will be responsible for fulfilling your obligations under Applicable Law.
10.2 Internal Breach: In the event of a security breach, as defined by Applicable Law, by your employee, contractor or agent, or due to your failure to maintain your systems, network or Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify Axia immediately of the breach and steps you will take to remedy the breach. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
11.1 You agree to indemnify, defend and hold harmless Axia, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your use of the Software and/or Service in violation of this Agreement, (b) any employment decision or action you take due to information available through or your use of the Service.
11.2 Axia agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or in connection with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Axia have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Axia, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
11.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
12.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Texas, and or the courts of the United States of America within Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
13.1 Each Party shall comply with all Applicable Laws in connection with its own activities under this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Axia be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
13.2 Axia does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Laws in the jurisdictions in which you use the Service, and any statements made by Axia to you shall not constitute legal advice.
13.3 Axia hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
13.4 You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service or Software, or any technical information about the Service or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
13.5 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
14.1 Entire Agreement. This Agreement encompasses the entire agreement between you and Axia with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement.
14.2 No Waiver. The failure of Axia to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
14.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
14.4 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
14.5 Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Axia’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
14.6 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. Axia shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.
14.7 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties hereto, any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
15.1 If you have any questions about the Service or this Agreement, you may call us at 877-678-7323, email us at email@example.com, or write to us at:
ATTN: Corporate Counsel
13121 Louetta Dr, #1075
Cypress, TX 77429
© Axia International 2019. All rights reserved.